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Intellectual Property Policy #115

Policy #115 Approved: February 17, 2011
UNIVERSITY OF NORTH CAROLINA SCHOOL OF THE ARTS
Intellectual Property Policy
Policy #115
Source of Authority: UNC Policy Manual § 500.2;
N.C.G.S. § 116-34(a);
UNC Code § 502(A)
Revision Authority: Chancellor
History: First Issued: February 17, 2011
Related Policies: Copyright Act, Title 17 of the US Code;
Patent Act, Title 35 of the US Code;
UNC Policy Manual § 500.2;
External Activities for Pay Policy #610;
Faculty Reassigned Time Policy #611;
Improper Activities Reporting Policy #114;
Research Misconduct Policy #120;
Supplemental Pay Policy #627;
Takedown Notice Policy #507;
Technology Use Policy #508
Responsible Offices: Provost
Effective Date: February 17, 2011
PDF: POLICY #115

I. Purpose

In pursuit of its mission and consistent with applicable laws and policy, the University of North Carolina School of the Arts (“UNCSA”) encourages faculty, staff, and students to make appropriate use of intellectual property and to share the results of their artistic and academic work.

This policy governs the use and ownership of intellectual property in accordance with provisions of the Copyright Act (Title 17 of the U.S. Code), any other applicable intellectual property laws of the United States, and Chapter 500 of University of North Carolina Policy Manual.

UNCSA, as an institution devoted to the creation, discovery and dissemination of knowledge and art, supports (1) the responsible, good faith exercise of full fair use rights as codified in 17 U.S.C. § 107 by faculty, librarians, and staff in furtherance of their teaching, research, and activities; (2) copyright ownership for creative, non-directed works by faculty, staff, and students and UNCSA ownership of directed employment-related works; and (3) protection of ownership rights for creators of works that require a different ownership model.

II. Scope

This policy applies to UNCSA faculty, staff, and students as well as to external contractors or organizations.

III. Definitions

A. “Copyright Infringement” means use of copyrighted work violating law, this policy or any other UNCSA or UNC Policy.

B. “Derivative Work” means a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted, as well as a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.

C. “Directed Works” include works that are specifically funded or created at the direction of the UNCSA, including, but not limited to, works for hire by other EPA employees. Such funding need not constitute exceptional use of UNCSA resources in order for the work to be considered a Directed Work. By default, student works are NOT to be considered Directed Works, unless the student has personally signed a specific contract or waiver stating otherwise.

D. “Exceptional Use of UNCSA Resources” means UNCSA support of traditional works or non-directed works with resources of a degree or nature not routinely available to faculty or other EPA employees in a given area.

1. Exceptional use may or may not include:

a. waiver of fees normally required to use specialized facilities and equipment, production facilities, service laboratories, specialized computing resources, and studios;

b. UNCSA funding or gifts in support of the work’s creation;

c. reduction in other duties specifically to facilitate creation of the work; OR

d. use of other related resources.

2. Ordinary or limited use of computers, laboratory space, libraries, office space or equipment, routine secretarial services at routine levels, telephones and other informational resources shall not be considered Exceptional Use of UNCSA Resources.

E. “Fair Use” means certain use of a copyrighted work in particular circumstances that does not constitute infringement. Fair use for activities such as criticism, comment, news reporting, teaching (including limited copying for classroom use), scholarship, or research may or may not constitute infringement, depending on the nature and extent of the use. Determining whether use is a fair use requires applying four factors set out in Section IV(B)(2) of this policy.

F. “Sponsored” or “Externally Contracted Works” means any copyrighted work developed using funds supplied under a contract, grant, or other arrangement between UNCSA and a third party, including a sponsored research agreement.

G. “Student” means any individual enrolled in a course at UNCSA. Students include high school students, undergraduates, graduate students, visiting students, post-baccalaureate students, and non-degree students enrolled in credit-producing courses. For purposes of this policy, the term “students” includes teaching, graduate, and research assistants.

H. “Student Work” means a work created by a Student including, but not limited to: papers, creative writing, computer programs, theses, dissertations, choreography, visual art works, designs, musical works, films, videos, digital works and other creative works of UNCSA students.

I. “Traditional Works” or “Non-Directed Works” means a pedagogical, scholarly, literary, or aesthetic (artistic) work originated by a faculty or other EPA employee resulting from non-directed effort. Such works may include textbooks, manuscripts, literary or scholarly works, fixed lecture notes, distance learning materials not falling into one of the other categories of this policy, works of art or design, musical scores, poems, films, videos, audio recordings, or any other works of the kind that have historically been deemed in academic communities to be the property of their creator.

J. “University License” means a perpetual non-exclusive, non-transferable, irrevocable, royalty-free license to reproduce, distribute, publicly perform, publicly display or make derivative works of a copyrighted work for any use in furtherance of UNCSA’s mission, unless such a license will impede scholarly publication or other activities. This license is tantamount to the “Shop Right” contemplated by the Chapter 500 of University of North Carolina Policy Manual.

K. “Works Made for Hire” means

1. A work prepared by an SPA employee within the scope of his or her employment; or

2. A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

3. Works Made for Hire do not include Non-Directed Works and Traditional Works.

IV. Policy

A. Administrative Responsibility. The Provost is responsible for implementing this policy. Duties may include but are not limited to:

1. Working with the UNCSA Copyright and Intellectual Property Committee (“CIPC”), to interpret specific aspects of the UNC and UNCSA policies.

2. Determining ownership of specific works upon recommendation of the CIPC and appropriate supervisor or dean.

3. Accepting assignments of rights to UNCSA from an author, creator or owner of a work.

4. In conjunction with the Chief Financial Officer and General Counsel:

a. overseeing the transfer, shared ownership, and/or commercialization terms of copyrighted works;

b. determining whether to waive UNCSA’s rights in a “work made for hire;” AND/OR

c. releasing UNCSA’s rights.

B. Compositions and Duties of the Copyright and Intellectual Property Committee

1. Composition. The CIPC shall consist of 13 members serving two year terms and will be constituted as follows:

a. One representative each, designated by the Dean of each Arts School, from Music, Dance, Drama, Design & Production, and Filmmaking.

b. One representative from the School of Filmmaking, Exhibition Dept. (Film Archives).

c. Two representatives from Academic Programs:

i. one representative from College, and

ii. one representative from High School.

d. One representative from Information Technologies.

e. One representative from Student Life.

f. One representative from the Library.

g. One representative from the Kenan Institute.

h. One representative from Advancement.

2. Duties. The CIPC shall have such responsibilities as the Office of the Provost may specify concerning copyrights and other ownership issues, including but not limited to the following:

a. Proposing revisions to UNCSA policies on the use of copyrighted materials and the ownership of intellectual property in compliance with UNC Policies.

b. Designing and implementing a continuing program to educate UNCSA faculty, staff, and students about the use of copyrighted materials.

c. Providing advice to UNCSA personnel concerning interpretation and application of UNCSA copyright and intellectual property policies and procedures.

d. Under this policy, hearing and recommending resolutions of disputes involving copyright ownership and questions to the Provost.

e. In conjunction with UNCSA’s general counsel, issuing and revising guidelines to assist faculty, staff and students in making fair use determinations.

C. Use of Copyrighted Works by Faculty, Staff, and Students

1. Appropriate Use of Copyrighted Works. Except as allowed by law, it is a violation of this Policy as well as federal copyright law for UNCSA faculty, staff, or students to reproduce, distribute, publicly display, perform, prepare derivative works based upon a copyrighted work, or digitally transmit copyrighted works without prior permission of the copyright owner.

2. Fair Use; Permissible Use

a. Under United States copyright law, the “fair use doctrine” allows for certain specified uses of a copyrighted work – without requiring prior permission of the copyright holder – in certain situations. UNCSA supports the responsible, good faith, free, and full exercise of fair use rights, as codified in 17 U.S.C. §107.

b. UNCSA faculty, staff, or students who propose to use a copyrighted work must apply four statutory factors to determine whether the use is a fair use. Before using the work, the user must weigh these four factors:

i. The purpose and character of the use, including whether the use is for nonprofit educational purposes or is of a commercial nature;

ii. The nature of the copyrighted work;

iii. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

iv. The effect of the use upon the potential market for or value of the copyrighted work.

3. Making Fair Use Determinations:

a. CIPC shall issue, and as necessary revise, guidelines to assist UNCSA faculty, staff, and students in making fair use evaluations.

b. The CIPC’s charge is to assist with copyright questions and issues, not to make final determinations, and to provide guidelines, not rulings, on copyright issues.

c. The final determination regarding the use of a copyrighted work, and any resulting liability or consequences arising out of whether or not the use of a work is in fact a fair use, lies with the person or persons making use of the material and not the CIPC.

4. Infringement. Determination of whether a specific use of copyrighted work may constitute infringement as defined by this policy shall be made by the Office of the Chief Academic Officer in consultation with the UNCSA General Counsel. Any infringement of a substantial nature and/or intentional infringement may be grounds for discipline, up to and including dismissal.

D. Ownership of Copyright & Other Intellectual Property

1. Ownership of copyright in copyrighted works depends on the status of its creator and the circumstances under which it is created.

2. Traditional or Non-Directed Works Created by Faculty or EPA-NT Employees

a. Ownership. Generally, the creator of a traditional or non-directed work owns the work. Faculty and EPA non-faculty who create a Traditional or Non-Directed Work in the course and scope of their employment at UNCSA are deemed to have granted UNCSA a “University License” as a condition of employment.

b. Commercialization

i. UNCSA encourages faculty and staff to commercialize their works.

ii. In the event UNCSA obtains financial resources and assists in the commercialization of a Traditional or Non-Directed Work, and the work generates income, either:

a. the creator shall reimburse UNCSA for the resources provided the creator in conjunction with creation of the work, OR

b. the creator shall share income from such commercialization with UNCSA, in an amount to be negotiated between the creator and the Office of the Chief Academic Officer.

iii. Such transactions may include a variety of repayment or shared payment terms, such as cash, royalties, or equity.

3. Traditional Works or Non-Directed Works Involving Exceptional Use of UNCSA Resources

a. Ownership. UNCSA shall own traditional works or non-directed works involving Exceptional Use of UNCSA Resources.

b. Determination of Exceptional Use. Whether an individual work’s creation involves Exceptional Use of UNCSA Resources shall be initially determined by the dean or director of the school or department in which the creator has principally been involved or from which he or she has received resources to fund the work. This decisions may be appealed to the CIPC, and then to the Provost.

4. Directed Works. UNCSA shall own Directed Works. Where practicable in the estimation of the creator’s chair or supervisor, and subject to any additional terms or limitations made necessary by UNCSA’s licensing agreements, the creator shall be granted a non-exclusive, nontransferable, royalty-free license to the work for the creator’s own educational or research use.

5. Sponsored or Externally Contracted Works.

a. Provided there is no conflict with a sponsored agreement, UNCSA may release or transfer its rights to the work’s creator under an agreement negotiated between the creator and UNCSA, usually with UNCSA retaining:

i. a University License for its prospective uses, including the preparation of derivative works, and the reproduction, public display and/or dissemination of the subject work, and/or

ii. the right to require reimbursement and/or income sharing from the work’s creator to UNCSA if the work produces income for the creator.

b. The parties may also negotiate joint ownership of such works, with the approval of the appropriate institutional official or body.

c. For a sponsored or externally contracted work created under an agreement that does not expressly require copyright ownership by UNCSA or a third party, the creator of the work shall own the work, subject to required disclosure to UNCSA where required under institutional policy.

d. In case of ownership by the work’s creator, UNCSA, if practical, shall be assigned a University License.

6. Works Made for Hire

a. Ownership. Works made for hire by SPA shall be owned by UNCSA. Exceptions to UNCSA ownership (in which case UNCSA will retain a University License in the work) may occur where:

i. UNCSA with approval of the Office of the Provost enters into an agreement with an SPA employee in advance of creation of the copyrighted work specifying that the work shall be owned in whole or in part by the employee, or

ii. UNCSA ownership is waived in writing by the Office of the Provost.

7. Works by Independent Contractors. Works produced for UNCSA by independent contractors shall be considered Works Made for Hire unless UNCSA and the contractor agree otherwise in writing.

a. Ownership. UNCSA shall own works produced by an Independent Contractors unless a specific contract with the independent contractor states otherwise. No unit or department shall enter into arrangements for work to be produced by an independent contractor without a written contract, signed by an authorized UNCSA official, including but not limited to a provision specifying the exact authorship and ownership status of copyrighted works produced by the independent contractor.

b. Grant of License. In instances where the contract with the independent contractor gives ownership of the work(s) produced to the independent contractor, the contract shall include a provision wherein the independent contractor grants UNCSA a University License. Only the Chief Academic Officer may waive UNCSA’s ownership of a work created by an independent contractor.

8. Student Works

a. Ownership & Use. Students by default own the copyright in all of their own work, unless they have, prior to the creation of such work, waived this right through a formal, signed, contract or waiver.

b. Grant of License. As a condition of enrollment and in consideration for such enrollment, each Student will grant UNCSA a perpetual, non-exclusive license to exploit all of the Student’s rights in the work under the law. This license will be effectuated by a signed agreement between the Student and UNCSA executed before the student attends his or her first Arts class. Except in the case of compilations where the work produced involves the contributions of numerous students or works of joint-authorship among students, UNCSA agrees not to pursue commercial gain from the license granted under this provision.

c. Exceptions to Student Ownership

i. A contract or waiver, signed personally by the Student, must be in place prior to the creation of any Student Work in order for such work(s) to be deemed a Sponsored, Externally Contracted, or Directed Work.

ii. Under such a waiver or contract, UNCSA shall own a Student Work that is a Sponsored, Externally Contracted, or Directed Work, and ownership and use of such works shall be as specified in this policy.

iii. Student Works created in the course of the Student’s hourly employment by UNCSA shall be considered Works Made for Hire, and ownership and use of such works shall be as specified in this policy

iv. Student Works that constitute notes of classroom and laboratory lectures and exercises may be used for educational purposes only and may not be used for commercial gain. Using, allowing or making available class or lab notes to be used for commercial gain is not permitted unless student is given specific authorization from a UNCSA faculty member.

v. As provided by this policy or as agreed to mutually, rights in Student Works may be transferred between the Student and UNCSA.

E. Release of Copyrighted Works Owned by UNCSA. The Office of the Provost may release or transfer UNCSA’s rights in Traditional, Non-Directed, Sponsored, or Externally Contracted Works created through Exceptional Use of UNCSA Resources to the work’s creator through an appropriate written agreement which complies with this policy’s procedures.

V. Revision History

A. February 17, 2011 – Adopted by Board of Trustees as part of UNCSA Policy Manual



UNIVERSITY OF NORTH CAROLINA SCHOOL OF THE ARTS

Intellectual Property Procedures

Procedure #115

I. CIPC’s Fair Use Guidelines

A. These guidelines shall be published on the UNCSA website and included as an appendix to these procedures and its associated policy.

B. Links to other guides, online tutorials, UNC policies, and other relevant information may also be provided as part of the CIPC’s guidelines or as a separate part of.

II. Exceptional Use Determinations

A. Whether an individual work’s creation involves Exceptional Use of UNCSA Resources shall be initially determined by the dean or director of the school or department in which the creator has principally been involved or from which he or she has received resources to fund the work. The nature and amount of resources customarily made available to faculty or staff in that department shall be considered in this determination.

B. The dean or director shall submit the determination to the faculty or staff member and to the CIPC in writing.

C. A faculty or staff member who disagrees with the dean or director’s determination may appeal that decision to the CIPC within 5 business days of receipt of the dean or director’s determination. The CIPC will review all information and submit a final determination to the dean or director and to the faculty or staff member in writing.

D. The employee may appeal the CIPC decision to the Chief Academic Officer for a final determination within 5 business days of receipt of the CIPC’s determination.

E. The Provost will review all information and submit a final determination to the CIPC, the dean or director, and to the faculty or staff member in writing.

F. No further appeals are permitted beyond the Provost.

III. Release of Copyrighted Works Owned by UNCSA.

A. The Provost may release or transfer UNCSA’s rights in works as specified in policy.

B. Release Agreement. Any agreement to release ownership of an Exceptional Use of UNCSA Resources work to the creator shall include provisions that:

1. UNCSA shall retain a University License; and

2. If the work’s commercialization generates income, either

a. the creator shall reimburse UNCSA for the exceptional resources provided, or

b. the creator shall share income from such commercialization with UNC School of the Arts, in an amount to be negotiated between the creator and the Office of the Provost.

3. Such transactions can include a variety of repayment or shared payment terms, such as cash, royalties, or equity.

4. Unless otherwise directed by the Office of the Provost, proceeds from commercialization of the work shall be allocated to the creator’s department.

C. Selection of Release Options & Appeal

1. The Office of the Provost, on consultation with the creator’s dean or director, shall determine which of the options available above will be selected in conjunction with the release of such a work to its creator.

2. Decisions regarding terms may not be appealed.

3. Should the creator and UNCSA be unable to agree regarding release terms, UNCSA shall retain ownership of the work.

D. Release of Copyright

1. As an alternative to release of a work owned by UNCSA, the Provost and the creator may alternatively negotiate for shared ownership of a Directed, Exceptional Use of UNCSA Resources, Sponsored or Externally Contracted Work.

2. Works that are jointly owned by UNCSA and the creator or creators may be commercialized in accordance with an agreement negotiated by the parties and the division of proceeds will be specified in that agreement.