Number ACAD 1.90

Issued by: Office of Grants and Sponsored Research

Section: Academic Support

Subject: Copyright and Patent Policies

I. General Statement

Coastal Carolina University is committed to providing an environment that supports the research and teaching activities of its faculty, students and staff. As a matter of principle and practice, the University encourages all members of the Coastal community to publish without restriction their papers, books, and other forms of communication in order to share openly and fully their findings and knowledge with colleagues and the public. The Copyright Policy has been prepared in this spirit and with this intent. The Copyright Policy is intended to promote and encourage excellence and innovation in scholarly research and teaching by identifying and protecting the rights of the University, its faculty, staff, and students.

Coastal Carolina University furthermore recognizes that inventions and discoveries of commercial importance may be the natural outgrowth of research conducted by faculty, staff and students, and desiring to secure both public benefit from the applications of such research and enhancement of the University’s capacity for such research, has established the following Intellectual Properties Policies.

Under Federal copyright law a work prepared by a University employee within the scope of his or her employment is a “work-for-hire.” The University, by law, is the owner of copyright in works-for-hire.

In keeping with tradition, the University does not claim ownership of books, articles, and similar works, the intended purpose of which is to disseminate the results of academic research or scholarly study. Such works include those of students created in the course of their education, such as dissertations, papers and articles. Similarly, the University claims no ownership of popular nonfiction, novels, poems, musical compositions, or other works of artistic imagination or of study guides, syllabi, lecture materials, tests or similar items. If title to copyright in works defined within this section vests in the University by law, the University will upon request and to the extent consistent with its legal obligations, convey copyright to the creators of such works. Regardless, works described in this section shall not otherwise be covered by this policy.

Subject to the rights of Inventors of patentable items as described in the University’s Patent Policy, the University shall be the owner of all rights in works, other than those described in Section III-3--B above, created in the course of the creator’s employment, regardless of creator’s location or salary source (specifically including creator’s employment at affiliated hospitals or institutions), or through the use of University resources other than the library, such works shall include but not be limited to: biological material, computer software, computer databases, circuit diagrams, integrated circuit chips, prototype devices, equipment, videotape, lectures or other instruction.

Under the Copyright Act, commissioned works of non-employees are owned by the creator and not by the commissioning party, unless there is a written agreement to the contrary. University personnel must, therefore, require contractors to agree in writing that copyright ownership is assigned to the University. Examples of work which non-employees may be commissioned to prepare are: illustrations or designs, artistic works, architectural or engineering drawings, forwards and introductions, computer software and reports by consultants or subcontractors.

II. Copyright Policy

A. COPYRIGHTS

Copyright ownership and the rights thereof are concepts defined by federal law. University policy is structured within the context of the federal copyright law. The long-standing academic tradition that creators of works own the copyright resulting from their research, teaching, and writing is the foundation of the University’s Copyright Policy. Exceptions to this rule may result from contractual obligations, from employment obligations, from certain uses of University facilities, or by agreement governing access to certain University resources. This Policy addresses these exceptions.

The University does not normally construe the provision of office and library facilities and modest routine secretarial assistance as constituting substantial aid, nor does it construe the payment of salary as substantial aid except in situations where the funds are paid specifically to support the development of original materials subject to copyright. Scholarly books and articles, textbooks resulting from usual teaching activities, painting, musical compositions, graphic art, and media materials are all examples of work that may be uncommissioned.

B. DEFINITIONS OF COPYRIGHTABLE MATERIAL

It is expected that laws and judicial interpretations of laws governing protection of intellectual property will change from time to time, particularly as they apply to new and rapidly changing technologies such as computer software. New paradigms may require new approaches. As such, this Policy differentiates between traditional intellectual property, such as books, incorporated under “Traditional Works,” and newer forms, such as computer software, incorporated under “Encoded Works.”

1. Traditional Works:

Copyrightable Traditional Works such as books, manuscripts, artistic works, movies, and television programs, historically have been the property of the Author. It is not the intent of this Policy to change significantly the relationship between the Author and the University that has existed through the years.

2. Encoded Works:

Encoded Works include software and other technologies used to support the electronic capture, storage, retrieval, transformation and presentation of digital data and information or to interface between digital forms and other communications and information media. The University will exercise its equitable ownership interest in Encoded Works under the circumstances identified below.

C. OWNERSHIP AND DISPOSITION OF COPYRIGHTABLE MATERIAL

Copyright ownership of all work by academic employees, non-academic employees, or students shall vest in the Author except under any of the following circumstances:

Regarding both Traditional Works and Encoded Works:

1. Subordination to Other Agreements: Copyright ownership of all material that is developed in the course of or pursuant to a sponsored project or other agreement to which the University is a party shall be determined in accordance with the terms of the sponsored project or other agreement. In the absence of terms specifically assigning ownership, the copyright shall become the property of the University only if the terms of such agreement directly or indirectly create University obligations as to intellectual property developed thereunder or if ownership is conferred upon the University by operation of another provision of this Policy.

2. Work for Hire: The copyright of material that is created by a non-academic employee within the scope of University employment or by academic employees pursuant to a specific direction or assigned duty (other than the teaching of courses) from the University or any of its units shall be the property of the University.

Regarding Encoded Works only:

3. Use of University Resources: Copyright ownership of Encoded Works which are developed with the “Substantial Use” of University resources, funds, space, or facilities shall reside in the University. For purposes of this Policy, University resources include grants, contracts or awards made to the University by extramural sponsors. The use of University resources is “Substantial” when it entails the use of University resources not ordinarily used by, or available to all, or virtually all, members of the faculty. As the concept of Substantial Use evolves with changes in the customary working environment, the term may be refined by the Provost from time to time, following consultation with the University Counsel, and such definition shall be incorporated as an Appendix to this Policy.

D. STUDENTS

Works created by students are additionally subject to the following rules:

1. The University makes no claim to copyright ownership of works created by students working on their own, i.e. not within the scope of an employment relationship with the University or with one of its employees, and not making Substantial Use of University resources.

2. Students working on a project governed by a contract or agreement to which the University is a party shall be bound by the terms of that contract or agreement.

3. Students who are hired to perform specific tasks that contribute to a copyrightable work will ordinarily have no rights to ownership of that work, regardless of the source of funds from which they are paid. In such cases, the party who owns the copyright of the rest of the work will ordinarily retain copyright ownership of the portion contributed by the student.

4. Students working collaboratively with academic employees on projects that result in copyrightable work may be granted the same rights and obligations of copyright ownership as would another academic employee working collaboratively on the project. Students and academic employees should establish these rights at the outset of their collaboration.

5. If none of the above relationships applies, students performing work compensated by the University are subject to the provisions governing nonacademic employees.

6. Students may also be subject to rules and restrictions of their units, departments or schools which are not inconsistent with the University Copyright Policy. For example, students who copyright their materials submitted in fulfillment of academic requirements must grant the University rights to reproduce and distribute copies of their works in accordance with the policies of the University.

Faculty members, students or staff members having questions as to whether education, literary, and media materials they are preparing or planning to prepare should be considered University- commissioned must petition the department heads who will in turn notify the Patent and Copyright Committee of the circumstances surrounding the project. The petition should contain brief descriptions of the materials to be produced, the resources to be utilized, and a statement concerning the time to be devoted by the author/creator to its preparation. The committee may wish to call a hearing to further investigate the production of the piece of work in accordance with to Review Procedures in Section 11. The findings of the committee and the Provost are subject to appeal as outlined in Section 11.

E. PREPRODUCTION AGREEMENT

Since conditions of production, use, and final disposition will vary from time to time, prior to the beginning of production authors/creators and the University will develop written agreements to define the rights and responsibilities of the parties. Such agreements are subject to the guidelines set forth herein and will be complete and specify any or all exclusions. The University legal staff will be consulted so that appropriate contractual details may be worked out, and a final copy of all contracts will be maintained on record in the legal office.

F. INTERNAL UNIVERSITY USE

“Internal” is defined as all Coastal Carolina University campuses and extensions by telecommunication or otherwise. All use of University-commissioned materials by any unit of the University for instruction or other purposes will be subject to the following conditions:

1. Use internal to the University requires approval of the college, department, or individual primarily responsible for the materials, so long as said materials are used within the context of their intended use. Use out of such context requires special permission of the creator and his/her department.

2. The contribution of the faculty member, student, or staff member involved in the production of University-commissioned materials must be explicitly recognized and noted by the user.

G. EXTERNAL USE

After consultation with the author, the University as owner and copyright holder may at its discretion assign, license, transfer, lease, sell, or otherwise convey all or part of its rights in University-commissioned materials. Charges to external users will be negotiated solely by the University or its assignees with such users. It is possible that differing fees to other State agencies, nonprofit educational users, consortium users, and others will be a result of these negotiations. In any case, the University has the exclusive right to set per unit prices, package prices, and conditions under which sale, lease, reproduction, or use of materials is authorized.

H. REVISION

Revision of University-commissioned material which does not require substantial University resources may be made at any time by the faculty member, student, or staff member involved subject to the approval of the member’s department,

The responsible faculty member may recommend to the University and other users the discontinuance of distribution and/or use of materials which he/she deems no longer appropriate or which he/she judges to be detrimental to his/her professional reputation. Mutual agreement by both parties is required for revision or discontinuance in such cases. After a significant period of non-use (at least three years), materials which have not been revised will be reviewed by the authoring faculty member, student, or staff member, and the University unit or units most directly involved in their production and the authoring faculty member, student, or staff member may request their withdrawal, erasure, or destruction. The University, in its sole discretion, may require such withdrawal, erasure, or destruction, and its decision in that regard will be final.

I. EQUITY

With the exception specified below, the University will not make any payment to the University-employed faculty member, student, or staff member involved in the production of University-commissioned educational, literary, and media materials for production and internal use other than the compensation which he/she regularly receives from the University.

1. Exceptions on payments for internal use of materials:

a. At the discretion of the department chair, faculty will normally be accorded released time at a declining level through the stages of planning, production, and presentation, including the first and subsequent semesters of utilization. Faculty eligible for

released time include the responsible faculty member and other faculty members assigned to work on the project by department or its functional equivalent.

b. If the faculty member, student, or staff member leaves the University, further internal use of the materials upon reasonable terms will be provided for and payments to his/her estate for such internal use of the material will continue to be made, subject to terms of preproduction agreements.

c. A faculty member, student, or staff member not on assignment to the University (e.g., during summer sessions or on leave) but appearing in or involved in producing educational, literary, or media materials may be provided compensation when such materials in which he/she personally and prominently appears are used. Compensation will be mutually agreed upon in the production agreement by the faculty member, student, or staff member and the department involved, based upon (1) the amount of continual responsibility of the party involved for monitoring, revision of lessons, or supervision of the work of the course if known; (2) whether the course is completely or partially recorded; (3) the extent to which the participating faculty member, student, or staff member’s time and creative efforts have been previously compensated; and (4) any other relevant factors.

2. The University will have the perpetual right to market or license external use of University-commissioned materials. The financial benefits of external distribution will be shared by the department or functional equivalent; the responsible faculty member, student or staff member and the institution, with a negotiated portion designated for outside or non University production sources as required.

a. The division of income accruing to the University under this policy will be: 25 percent to the faculty member, student, or staff member (to be divided equitably if there is more than one originator); 25 percent to the department and/or other functional unit which authorized and supported the development and production of the materials; 25 percent to the

internal funding source; and 25 percent as general University income. The monies distributed to the department and/or other functional units and to the Instructional Development Fund will be used to encourage further educational and instructional activities by the faculty.

b. Exceptions to distribution percentages and/or payment provisions may be made for incentive purposes but must be negotiated in preparation agreements.

3. If the University licenses an external agency to produce or market the materials, the total royalties will be negotiated between the University and the external agency. The net income from royalties accruing to the University will be divided among the faculty member, student, or staff member, the University, and the department in the same proportions as previously delineated.

4. It is expected that the share of each department (or functional equivalent) will be devoted to (1) teaching load adjustment necessitated by production, or (2) development of new course materials or other educational, literary, and media works and/or the revision or upgrading of the original materials.

5. The distribution above will be continuing except in the case of termination or death. (See 7 below.)

6. The foregoing does not apply to “work-for-hire” arrangement or to the production of copyrightable materials as an assigned duty.

7. The institution’s right to use materials will continue regardless of the employment status of the responsible faculty member, student, or staff member. The author/creator’s share in external distribution revenues will remain the same for a ten-year period and will accrue to his/her heirs in the event of termination or death.

J. PROTECTION AND LIABILITY

1. PROTECTION

The University will be responsible for the investigation of recorded

allegations of unauthorized use or infringement of copyrighted materials. Where legal action is deemed necessary by the University, in its sole discretion, to enforce copyrights, the University agrees that all costs and expenses incidental to such actions will be borne by the University and any proceeds of litigations in excess of costs will be shared between the parties in the proportions set forth previously (as applicable) when final adjudication of the legal action is rendered.

2. LIABILITY

a. The faculty member, student, or staff members responsible for the creation of University-sponsored educational, literary, and media materials will obtain appropriate releases from individuals prominently appearing in or giving support to the materials, giving all necessary rights to the University. Form releases may be obtained from the System Legal Department. All original releases must be filled with the University’s legal counsel.

b. Before any external use is made of University-sponsored material, the faculty member, student, or staff member authoring or creating the material will certify in writing to the University that to the best of his /her knowledge materials used therein do not infringe or violate any existing copyright or other personal or property right of any legal or natural person. If this statement proves false due to misrepresentation or negligence, the faculty member, student, or staff member will indemnify and hold harmless the University for all costs and expenses to which it has been subjected as a result of such representation made herein.

c. In the event that others allege violations of personal or property rights by the University, or by the faculty member, student, or staff member, or producer of University- sponsored educational and other literary materials, the University will assume responsibility for defense of any litigation and the satisfaction of any judgment rendered against the University faculty member, student, or staff member. (This provision is subject to the conditions set out above.)

III. Patent Policy

1. PURPOSE AND SCOPE

Although the search for commercially exploitable inventions is not a specific function of the University, a discovery leading to an invention may be a by-product of creative endeavor undertaken for other purposes. When such a discovery is made, it is the desire of the University to assist the inventor in evaluating, patenting, and exploiting his/her discovery. The purpose of this policy is to delineate procedures to encourage inventors to report discoveries with patent potential and to assist them while safeguarding the interests of all concerned parties. This policy pertains to all students, whether undergraduate, graduate, or postgraduate, part-time and full- time members of the faculty and staff, all other agents and employees of ' the University, and all other individuals who have made substantial use of the resources of the University.

It is the explicit intent of this policy to exclude any University claim to a discovery resulting from endeavor not supported by the University or endeavor to which the University’s contribution is negligible. To safeguard against any further dispute as to University support, each discovery must be submitted for review in accordance with these procedures. A written opinion of the University will be provided the inventor to include, when appropriate, release of any University claim to the discovery.

Nothing herein will conflict with any agreement executed by the University with an outside agency. Outside sponsorship, particularly by federal agencies, usually involves agreement on patent matters, and each principal investigator will ensure that he/she and any fellow investigators understand such agreement. The Office of Sponsored Programs and Research will endeavor to obtain patent agreements with terms as favorable as possible for University personnel and will ensure that the inventor understands the final agreement.

2. ASSIGNMENT OF RIGHTS

A. Committee. The University Patent and Copyright Committee (hereafter called the committee) consists of three members appointed by the President and three members of the faculty elected for terms of three years, with one member elected annually. The committee will elect its own chair from its membership. At any time the chair may call upon any member of the University to appear before the committee to augment its expertise.

The committee will consider individual cases prescribed herein and be the patent and copyright advisory body within the University. It will report to the Provost.

B. Review Procedures. Any student, whether undergraduate, graduate, or postgraduate, or any faculty or staff member, or any agent or employee of the University, or any individual who has made substantial use of the resources of the University, who believes he/she has a new invention, e.g., discovery, computer program, process, method, use or combination, whether patentable or not, or a University-commissioned copyrightable work, will bring it to the attention of the committee through its chair. Within a reasonable time period, usually thirty days after receiving such notification, the committee will convene to consider the invention or work. In considering the invention or work, the committee may consult with and receive advice from the University’s counsel. Within ninety days following the initial meeting, the committee will make a determination of disposition of the case within the options of this policy and report its findings and recommendations to the Provost in writing. The committee, if it deems appropriate, may recommend changes in the equities set forth herein. The committee will also take reasonable steps to ensure that any joint inventors or authors (including students) are identified and, when appropriate, will recommend distribution of income among the inventors or authors. (Author[s] is used to designate the person(s) responsible for producing a copyrightable work)

The Provost will promptly notify the inventor or author in writing of the decision of the University courses of action open to the inventor or author, and the equity in any income resulting from his/her discovery or work

C. Appeal. Upon receipt of official notification from the Provost, the inventor may submit a written appeal to the President which will include the specific points to which objection is raised The decision of the President will be final

3. DISCLOSURE

A. Documenting a Discovery. When an individual believes he/she has conceived an invention, he/she should prepare a written and dated memorandum (disclosure statement) describing the invention (which serves as one proof of the date of conception) This memorandum, however, should be only supplementary to the careful keeping of regular laboratory notebooks Included as a part of the memorandum should be the names of all inventors, drawings, sketches, and other pertinent data to illustrate the principle of operation of the invention and its performance The inventor should date and sign each page of his/her notebook and the memorandum, including all sketches and data sheets Two witnesses, who are thoroughly capable of understanding the invention and who are not joint inventors of nor interested in it, should also date and sign each page Because priority of filing a patent application is often a decisive factor in awarding a patent, it is important that the notebook be kept current and the disclosure document be prepared as soon as possible, since these records can be relied upon as corroboration of dates of conception and reduction to practice

The law provides that the inventor is not entitled to a patent if his/her invention has been described in a printed publication any where in the world more than a year before his/her patent application is filed Since extensive developmental work is often required before a patent application can be filed, an inventor should consider the desirability of delaying publication for a reasonable period of time.

The disclosure memorandum should be submitted to the chair of the committee for review in accordance with the procedures in Section II.B

B. Invention Categories. The committee will determine that the discovery belongs to one of the following categories:

CATEGORY 1. The discovery resulted from endeavor to which the University did not contribute or contributed insignificantly. In these cases the University relinquishes any equity, and the inventor is at liberty to dispose of his /her discovery as he/she sees fit. The inventor may elect to submit his/her discovery through the University to a patent development organization with which the University has entered into agreement.

A determination that a discovery belongs in Category 1 would indicate the inventor did not receive financial support from University resources other than salary and related benefits, did not use time during which he/she was released from duties, had no assistance from other faculty members, staff, or students unless clearly shown to be on their own time, and made no use of University facilities, supplies, or equipment. Further, it would indicate that the inventor’s association with the University was not a major factor in obtaining non-University support. A Category 1 discovery could also result from University support which is judged by the committee to be insignificant.

CATEGORY 2. The discovery resulted from endeavor supported by non-University agencies but with University sponsorship. In most cases a degree of University support will be evident, although in some instances association with the University as a factor in obtaining outside support may be the only University contribution. In cases in this category, the University reserves the right to patent and exploit the discovery, subject to such limitations as may be imposed by prior agreement with the external sponsor. Federal regulations require written invention disclosures and written assignments of such inventions made under programs sponsored in whole or in part by the federal government. Forms for the inventions, disclosures and assignments may be obtained from the committee or from the Office of Grants and Sponsored Research.

CATEGORY 3. The discovery resulted from endeavor supported by the University. In these cases the University reserves the right to patent and exploit the discovery.

C. Developing Marketable Discoveries. In each case where the University support is evident (Category 2 or Category 3), the University reserves the right to assume full title to the discovery, to obtain a patent, and to exploit the invention. Sometimes it will not be to the best interest of the University to assume this responsibility, weighing the complexity and cost involved against probable returns.

In the event the University declines to assume the responsibility for development, the inventor will have the option of proceeding independently or using the services of a patent development organization with which the University has entered into agreement. The decision by the inventor to proceed independently will release the University from any further responsibility, but for its contribution to the discovery the University will receive a share of any income realized from commercial exploitation. This share of income will be determined at the time that either the University declines to assume responsibility for development.

D. Patent Development Organizations. The University may from time to time enter into formal agreements with Patent Development Organizations (PDOs) such as the Research Corporation.

Under such agreement the University may submit for evaluation such discoveries as it wishes. If the evaluation is favorable, the PDO will provide the further development necessary to bring the invention to a point where it maybe advantageously licensed or will license the invention to established industrial concerns to do this at their own expense. Such organizations usually will accept title to the invention and proceed to obtain patents and to negotiate license. Any resulting income is divided among the organization, the University, and the inventor.

E. Latent Discoveries. Frequently, an external agency will solicit materials or devices from a University project for investigation by the agency staff for any patentable discovery. Such a solicitation will be referred to the committee which will determine whether there is any apparent discovery which should be developed under this policy. The committee will also determine whether proposed arrangements with the soliciting agency are reasonable from the point of view of the University and University personnel involved. It will submit a written report to the Provost who will take appropriate action.

F. Equity. The equity in any marketable invention is expressed as a percentage of income. Nothing herein will conflict with an agreement signed by the University as a condition to receiving support form an external sponsor.

1. In cases in which the inventor proceeds independently, but in which the University has established an interest (Category 2 and 3), the University will receive a maximum of 15 percent of income after deducting from income any expenses of litigation and expenses including, but not limited to, research and development expenses, patent expenses, and licensing expenses.

2. In cases in which the PDQ assumes responsibility, after first deducting any expenses of litigation consented to by the University, a percentage of royalty income as determined by contractual agreement between Coastal Carolina University and the PDQ will be retained by the Corporation in accordance with the terms of the agreement. The first $1,000 of the balance will be paid to the inventor, and any balance beyond $1,000 will be divided equally between the University and the inventor.

3. In cases in which the University assumes responsibility, 25 percent of income will be paid to the inventor after deducting from income any expenses of litigation and expenses, including but not limited to, research and development expenses, patent expenses and licensing expenses.

With a Category I discovery (no University interest), the inventor may elect to use the services of a patent development corporation, submitting his/her discovery through the University. In these cases the distribution of income between the University and the inventor will be adjusted in favor of the inventor.