East Carolina University Faculty Manual
East Carolina University (hereinafter referred to as “the University”) has among its primary purposes teaching, research, and the expansion and dissemination of knowledge. Products of these endeavors include development and use of copyrightable materials. The creation of copyrightable materials in the form of literary, dramatic, and other intellectual works by the University community is encouraged as a measure of productivity and commitment to the dissemination of knowledge and creative activity for public benefit. It is the policy of this University that its faculty, staff, and students carry out their scholarly work in an open and free atmosphere that encourages publication without constraint, consistent with applicable laws and University policy. The Copyright Policy contained herein is consistent with the Copyright Use and Ownership Policy of the University of North Carolina, enacted by the Board of Governors on November 10, 2000.
B. Scope and Coverage
This Policy applies to the faculty, staff, and students of the University. Compliance with the terms of this Policy is a condition of employment for University faculty and staff, and of enrollment for University students. This Policy is supplemental to the Copyright Use and Ownership Policy of the University of North Carolina, and is subject to any applicable laws and regulations and to specific provisions in grants or contracts that govern rights in copyrighted works created in connection with sponsored research.
Author or Creator: Someone who originates or contributes copyrightable expression such as poetry, prose, computer programming, artwork, musical notation, recorded music, animations, video footage, web pages, architectural drawing, and photographs.
Copyright License: Written permission to use copyrighted material that is usually limited to a period of time and/or for a particular use.
Directed Works: Works that are specifically funded or created at the direction of the University, and which may or may not include exceptional use of University resources.
Derivative Works: Works based upon and substantially similar to a pre-existing work, that would infringe the pre-existing work without a license from the author of the pre-existing work.
EPA Non-Faculty Employee: Employees designated as exempt from the North Carolina State Personnel Act who hold an approved administrative or non-teaching position.
Exceptional Use of University Resources: Resources/Support provided by the University for the creation of a work that is of a degree or nature not routinely made available to University employees. An example of exceptional use would be the use of support staff for graphics design, or computer programming, that is not normally provided to University employees. Ordinary use of computers, FAX machines, laboratory space, libraries, office space or equipment, secretarial services at routine levels, telephones, and other informational resources, such as the virtual reality system or other special computing equipment, shall not be considered exceptional use of University resources. Whether an individual work has been created through exceptional University resources shall be determined initially by the chair or director of the department in which the creator has principally been involved or from which he or she has received resources to fund the work, taking into account the nature and amount of resources customarily made available to faculty or staff in that department. At the time that exceptional resources are approved, the unit administrator of that particular area of research shall inform that faculty member.
Faculty: Employees designated as exempt from the North Carolina State Personnel Act (EPA Employee) who hold one of the professorial ranks of instructor, assistant professor, associate professor, or professor, or whose title is lecturer, visiting professor, adjunct professor, research associate professor, post doctoral fellow or the like.
Fair Use: A use of copyrighted material for purposes of criticism, comment, news reporting, teaching, scholarship, or research, which is not an infringement of a copyright. Fair Use is further discussed in Section IV of this document.
Publication: The public distribution of copies of a work or the original work by sale or other transfer of ownership, including rental, lease or loan.
Royalty: A payment made to the owner of a copyrightable work for use of the work.
SPA Staff: Employees designated by the North Carolina State Personnel Act who generally perform a support role for the University.
Shop Right: A non-exclusive, non-transferable, royalty-free right to use a copyrightable work for educational or research purposes.
Sponsored Work: Funds supplied under a contract, grant, or other arrangement between the University and a third party, including a sponsored research agreement.
Student: Any individual currently enrolled in the University or its extension programs in undergraduate, graduate or other academic classes. Teaching, research and graduate assistants are included for the purposes of this Copyright Policy.
Student Works: Papers, computer programs, theses, dissertations, artistic and musical works, and other creative works made by students.
Works for Hire: A work prepared by an employee within the scope of his or her employment or a work specifically commissioned where the contractual agreement clearly specifies the work shall be considered a work made for hire.
1. Appropriate Use of Copyrighted Works
The Copyright Act of 1976, as amended (Title 17, U.S. Code), generally protects certain rights and privileges of the copyright owner to exclude others from the right to reproduce and publicly distribute, display or perform a work, as well as revise or prepare a derivative work based upon a copyrighted work, without obtaining permission. As an institution devoted to the creation, discovery and dissemination of knowledge, the University supports the responsible, good faith exercise of full fair use rights contained in the Copyright Act.
2. Fair Use
The “fair use doctrine” of the Copyright Act allows certain statutory exemptions applicable to academia, recognizing the fundamental non-profit mission of universities to advance and disseminate knowledge for public benefit.
a. Elements of Fair Use
Individuals from the University community who wish to make fair use of a copyright work must consider in advance four statutory factors:
i. Purpose and Character of the Use
The purpose and character of the use, including whether the use is of a commercial nature or for non-profit educational purposes.
ii. Nature of the Work
The characteristics of the work being used, including whether it has been previously published and whether it is factual or fictional.
iii. Amount of Work to be Used
The amount, substantiality and qualitative nature of the portion used in relation to the entire copyrighted work.
iv. Effect on the Market
The effect of the use on the potential market for or value of the work.
The University Copyright Committee, together with the Office of the University Attorney, shall issue and, as necessary, revise guidelines to assist University faculty, EPA non-faculty employees, SPA staff employees, and students in making fair use evaluations. The Chancellor shall also maintain copyright and fair use resources at the ECU libraries. The Copyright Management Officer shall advise faculty, EPA-non-faculty employees, SPA employees and students regarding fair use determinations pursuant to Section VI.B. hereinafter.
E. Copyright Ownership
Ownership of copyright in copyrighted works shall depend on the category of the work in question and its creator.
The ownership of traditional or non-directed works shall remain with the creator except in the following circumstances:
a. Directed Works
... Ownership of directed works shall remain with the University and the creator shall retain a shop right for use of the work. Upon written agreement between the University and the creator, the University may release or transfer its rights in the work to the creator provided, however, the University maintains a shop right to use of the work. Expense reimbursement and income sharing with the University shall be considered.
b. Works Involving Exceptional Use of Institutional Resources
Ownership shall remain with the University except, upon written agreement between the University and the creator, the University may release or transfer its rights in the work to the creator provided, however, the University maintains a shop right for use of the work. Expense reimbursement and income sharing with the University shall be considered.
c. Sponsored Works Requiring the University’s Ownership
Ownership shall be decided in accordance with the terms of the sponsored programs agreement with the University:
i. Institutional Ownership: In the case of institutional ownership, provided there is no conflict with a sponsored agreement, the University may:
1) Release or transfer its right to the creator under an agreement with the creator;
2) Negotiate with the creator for joint ownership of the work;
3) Require a shop right for the University’s use of the work;
4) Require expense reimbursement upon commercialization of the work; and/or
5) Require income sharing upom commercialization of the work.
ii. Ownership Not Addressed in Agreement: Provided the sponsored agreement does not expressly require copyright ownership by the University or a third party, ownership shall remain with the creator subject to disclosure to the University provided, however, the University shall, if practical, be assigned a shop right for use of the work.
Works for hire made by SPA staff, working within the scope of their employment, shall be owned by the University except the University may enter into a written agreement in advance to transfer copyright ownership to the SPA staff employee.
Works developed by independent contractors shall be owned in accordance with the contract under which the work was created. The University unit entering into arrangements for work to be produced by an independent contractor shall insure that the written contract specifies institutional ownership. Any exceptions shall be approved by the appropriate Vice Chancellor or designee.
Students may produce works while carrying out activities related to their enrollment at the institution or while employed by the institution. Examples of student works are papers, computer programs, theses, dissertations, artistic works, and musical works. Copyright ownership of student works shall remain with the student except in the following circumstances:
a. Sponsored or Externally Contracted Works
Ownership shall be in accordance with Section V.A.3. of this Copyright Policy, Sponsored Works Requiring the University’s Ownership, hereinabove.
b. Works for Hire
Student works created in the course of employment with the University shall be considered Works for Hire and shall be owned by the University.
c. Derivative Works
The sale or commercial use of derivative works without the express written permission of the author may violate the copyright rights of the author. Commercial exploitation of these materials (which may include faculty lectures, notes from faculty lectures, syllabi, and other course materials) without express written permission of the instructor may result in disciplinary action in accordance with University policies.
5. Joint Ownership
Copyright holders, including faculty, EPA non-faculty
employees, SPA staff employees and students may enter into written joint
ownership agreements with one another at their discretion, with the approval of
the Chancellor or his designee.
1. University Committee on Copyrights
The University Committee on Copyrights is hereby established and shall have the responsibilities as the Chancellor may specify, including but not limited to the following:
a. Monitor trends in such areas as institutional copyright use policies, changes in copyright ownership models, and guidelines for fair use information;
b. Identify areas in which policy and guideline development or revisions are required, and make recommendations to the Chancellor;
c. Cooperating with the administration to propose University policies and guidelines regarding ownership and use of copyrighted or licensed scholarly works;
d. Assist in identifying educational needs of the faculty and others related to compliance with copyright policies and guidelines, and advising on appropriate ways to address those needs; and
e. Under procedures specified herein, hearing and recommending resolution of disputes involving copyright ownership.
The committee shall consist of 13 members: representatives of the student body, EPA-non-teaching employees, SPA employees, the libraries, the Office of the University Attorney, the Office of Technology Transfer, the Copyright Management Officer, the Vice Chancellor for Research and Graduate Studies or designee who shall chair the Copyright Committee, and five faculty members who will be elected by the Faculty Senate. Student representatives shall serve for one-year renewable terms. Other representatives shall serve for three-year renewable terms.
a. Assist in identifying educational needs of the campus community related to compliance with copyright policies and guidelines, and advising on appropriate ways to address those needs;
b. Serve as a member of the University Committee on Copyrights.
Works subject to protection under both patent law and copyright law shall be reviewed by the Office of Technology Transfer and the University Committee on Intellectual Property/Patents. If the University elects to retain title to its patent rights, the inventor/creator shall assign copyright and patent rights to the University. The inventor/creator shall be compensated in accordance with University policy.
4. Disclosure to the University Committee on Intellectual Property/Patents
Whenever faculty, EPA non-faculty employees, SPA staff or students of the University create copyrightable material which is or may be owned by the University or a third party and which may also have commercial application, a disclosure of the existence of the material should be made, in writing, to the University Committee on Intellectual Property/Patents. The written disclosure should be made as soon as practical prior to or after creation of the work.
Any University faculty, EPA non-faculty employee, SPA staff employee, or student may seek resolution of a dispute regarding fair use or copyright ownership of a work governed by this Copyright Policy, including a dispute over whether use of University resources is an exceptional use, by filing a written request with the Chair of the University Committee on Copyrights, who shall appoint a 5-member panel to hear the dispute with 3 panel members being selected from the elected faculty members of the committee. Review of all matters related to copyright shall fall under the exclusive jurisdiction of the University Committee on Copyrights, subject to the normal appeal processes.
2. Conduct of the Hearing
In its discretion, the panel may elect to conduct a hearing into the matters or may make a recommendation based upon the written record, provided that all parties to the dispute are given an opportunity to present evidence and arguments in support of their respective positions. The panel will make every effort to mediate these matters prior to any hearing. Each party shall provide the other party with a copy of any written materials submitted to the panel simultaneously with submission of such materials to the panel. Any hearing will be conducted following procedures set forth in writing by the panel or promulgated by the University Committee on Copyrights. No party shall have the right to be represented by counsel before the panel, but any party may be accompanied at a panel hearing by an advisor of his or her choosing, who shall not participate in the hearing.
Each panel shall report its written findings, conclusions and recommendations for disposition of the matter to the appropriate Vice Chancellor(s) on behalf of the Chancellor, within forty-five days of appointment of the panel by the Chair of the University Committee on Copyrights. The Chair of the Committee may extend the time period of such report by not more than thirty days for good and reasonable cause. Copies of such findings, conclusions, and recommendations shall be provided to all parties. Upon receipt of such findings, conclusions, and recommendations, the appropriate Vice Chancellor(s) shall issue a written decision in the matter. The decision shall be final, subject to appeal rights under The Code of the University of North Carolina.
Approved: Faculty Senate Resolution #02-18, April 2002
ECU Chancellor, May 8, 2002
Office of the President, August 6, 2002