Copyright Policy:
Background and Resource Page

Copyright Policy Adopted

December 14, 2007

The Copyright Ownership Administrative Policy (rev. October 2008) is available online at the Uwide Policy Library.

This policy builds on Board of Regents policy: Copyright

The comments below are intended to provide background regarding the Board of Regents Copyright Policy. It was compiled by the Copyright Advisory Committee co-chairs. The content of this page is advisory only and is not intended to provide legal advice.


Copyright Seminar for Department Heads and Chairs
May 18, 2009  (Video: 1 hr. 25 min.)

Introduction: Vice Provost Arlene Carney 0:00 - 3:20

Copyright Overview: University Librarian Wendy Lougee

3:21-30:35
Questions 30:36-43:00
Practical Issues: Associate General Counsel Greg Brown 43:01-67:00
Questions 67:01-85:00

Background:

Intellectual property is traditionally divided into patents, trademarks, and copyright. The new draft policy will encompass copyright only. There is a separate policy for patents has also been drafted (download PDF).

The general "default" rule of the law of copyright is that an employer owns all copyright to works created within an employee's scope of employment (i.e., "work for hire” doctrine). See Copyright Act, 17 U.S.C. § 101.

New Policy: 

The new University policy affirms the University’s recognition of, and commitment to, an important exception to the default rule for copyright ownership. In the case of scholarly and pedagogical works of faculty, the proposed new policy changes this default rule. A central—and explicit—principle of the new policy (III 2) is that" The University shall maintain the strong academic tradition that vests copyright ownership in works of scholarship in the faculty."

After a comprehensive survey of 20 peer institutions (download PDF), the Copyright Advisory Committee proposed several key changes to the current university intellectual property policy. The new copyright policy is consistent with the policies of our peers and indeed, offers some innovative approaches designed to encourage and secure an environment in which knowledge creation, sharing and diffusion is viewed as an integral component and responsibility of the intellectual life of the U community.

Aims and Objectives:

  1. A goal of the new copyright policy is to clarify the University's commitment to the "teacher exception" to the standard work for hire doctrine. Under the new policy faculty own the copyright in their "academic work" as defined in Section II (1) of this policy. Academic work includes scholarly, pedagogical and creative work. Faculty own copyright to their academic work regardless of the form in which such work is “fixed.” For example, copyright in a set of PowerPoint slides created by a faculty member to accompany a lecture would be owned by the faculty member.

  2. The new policy makes clear that copyright in the work of non-faculty University employees is owned by the University.

  3. The University owns copyright in "directed works" which is defined as “a work agreed upon between the University and faculty creator(s), the creation of which is based on a specific request by the University and which requires substantial University resources.” To qualify as a “directed work” the following three conditions must be satisfied:

    1. a specific request by the University;
    2. substantial resources invested by the University; and
    3. agreement between the University and the faculty creator.

    Substantial resources will vary by department and context. To be “substantial” the resources must be beyond the ordinary (e.g. computer) and must be more than that to which other members of the department or unit are regularly offered as support for their work. For example, if a unit moves all courses online, support to move those courses online would not, in this context be substantial as support was not differentially provided.

  4. The policy encourages flexibility and negotiation between faculty and the University in dealing with copyrighted works. Under the proposed section V (exclusion section) faculty may, for example, negotiate profit sharing plans, may agree to retain or give away particular rights, or may enter into other customized agreements as necessary. Such negotiated agreements are not barred by this proposed policy.

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Frequently Asked Questions:

1) Do I own copyright in my course?

To be copyrightable, a work must be “fixed in tangible form”—that is, it cannot be oral. Thus, “courses” are not copyrightable as a general matter. Course materials (syllabus, class notes, etc) of sufficient originality can be copyrightable and as academic works, copyright in such materials belongs to the faculty member.

2) For the University to own a directed work, must the agreement be in writing?

No. However, administrators and faculty are encouraged to memorialize agreements in writing.

3) What are "substantial resources” under this policy?

The substantial resources threshold will vary by college, department, unit and context. At the broad policy level it would be unwise to try to capture such a variety of potential situations. However, resources beyond the normal provision made to faculty members is, at a minimum, a threshold factor in this determination. Remember also that the other two criteria (request and agreement by the faculty member) must be satisfied for a work to qualify as “directed” under this policy.

4) If as a faculty member I am directed to create something by my department chair or dean does the University then own it under the “directed works” provision of this policy?

No, the directed work provision of the policy requires that each of three criteria be met.

5) I'm a faculty member and I've created online materials for my course. Who owns these?

The faculty member owns copyright to all academic works, regardless of their form.

6) If I own the copyright to my syllabus, can the University change the content without my permission?

No. Doing so would implicate academic freedom issues in addition to possible copyright concerns.

7) Is software considered an academic work under this policy?

Software has not yet been generally recognized within the category of works to which the “teacher’s exception” will apply. Software is governed by the Regent's patent policy (Commercialization of Intellectual Property).

8) By Unit do you mean Department or College?

For purposes of defining what constitutes scholarly work in a particular discipline a faculty member’s Unit is usually the Department.  For Schools without Departments, the Unit would be the College.

9) Would copyright in teaching materials incorporated in an online course vest in the faculty or the University?

Copyright in preexisting academic works belong to the faculty whether or not they are incorporated in an online course. The format of the course material does not determine its copyright status.

10) Can a faculty member who leaves the employment of the University continue to use syllabi, teaching notes, photos etc that have been incorporated in an online course at the U?

Yes.  A faculty member retains copyright in these materials created regardless of whether those works have been integrated into an online course at the U.

11) Can I teach the course outside the University while still a faculty member at the University?

This would be governed by the Conflict of Interest policy. 

12) If a librarian or other professional/academic staff publishes an article in a scholarly journal, who owns the copyright?

To the extent to which non-faculty academic appointments fall within the “faculty like” definition, these individuals would have copyright in the scholarly works they produce. If the work is outside the normal scope of the individual’s appointment, the work would also belong to the creator. Works created within the scope of employment by individuals who do not have faculty or faculty-like appointments would be owned by the University.

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Scenarios: Who owns the copyright?

A) A faculty member writes a monograph, using campus computing resources, library, assistance from a research assistant.

In this scenario the faculty member has created an academic work. This policy adopts the higher standard of “substantial resources” as a touchstone for University ownership and not “University resources” as is the case in some institutions. Accordingly, the faculty member owns the copyright in this academic work.

B) A faculty member creates lecture notes for his/her course and puts them in WebCT.

Lecture notes are academic works according to the policy. The faculty member owns copyright to all academic works, regardless of their form.

C) A faculty member creates a set of teaching materials (analytic guide, PowerPoint overview of concepts, supplementary documents, online interactive tutorial) to support her course.

Teaching materials are academic works according to the policy. The faculty member owns copyright to all academic works, regardless of their form.

D) A college or department at UMN wishes to develop a core course with instructional materials that can be used by multiple faculty. The Dean requests a faculty member to develop these materials. The faculty member agrees to do so. The Dean spends a large amount of money to hire additional personnel support, buy customized software packages, a new computer and assigns a full time informational technology staff to the project assisting the faculty member. Such additional is not generally available to other faculty in the college.

The facts in this scenario satisfy the three requirements of a directed work and copyright to the new instructional materials would be owned by the University.

E) All faculty of a Unit write detailed full-sentence/paragraph course information (including cases, quizzes, etc.), essentially writing text equivalent to chapters as the course narratives for online courses. The Dean spends a large amount of money to hire additional personnel support, buy customized software packages, and assign informational technology staff. These staff oversee the faculty, editing faculty members' work (whether they wish this assistance or not) and transferring faculty's materials into electronic module form (a skill that none of the faculty have). Is this a directed work?

Under the policy, this is not a directed work. While the University has invested resources, it has done so uniformly throughout the whole Unit.

F)  In the preceding hypothetical, who owns the copyright in the online interactive course?

This hypothetical presents a situation of multiple copyrighted works being created. Under the policy, the University owns the copyright in the online course. Faculty, however, own the copyright in the respective preexisting academic works integrated into the course.

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Revised Nov. 30, 2007