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Policy Name: Intellectual Property (Continued)
Policy No: 4.02
Date Passed: 12/02/1987; Amended 02/15/2006
Last Reviewed: March 2009
Review Next: March 2011

The Texas Woman's University
Policy on Intellectual Property

Part 2 - TWU Policy Statements

2.0 General Policy Statement

The prompt and open dissemination of the results of TWU research and the free exchange of the information among scholars are essential to the fulfillment of TWU's obligations as an institution committed to excellence in education and research. Matter of ownership, distribution, and commercial development arise in the context of technology transfer which is an important aspect of the institute's commitment to public service. Technology transfer is subordinate to education and research; therefore, the dissemination of information must not be delayed beyond the minimal period necessary to define and protect the rights of the parties.

2.1 Patent Policy Statement

Rights in inventions made by TWU faculty, students, staff, and others participation in TWU programs are as follows:

Inventor Owned

Inventors acquire ownership in inventions which are:

  1. Not subject to the terms of agreements with research sponsors or other third parties under (a) below; and
  2. Do not involve the significant use of TWU administered resources under (b) below.

Other Inventions

TWU acquires ownership or other rights on invention as follows:

  1. Inventions subject to the terms of a sponsored research or other agreement are treated in accordance with the terms of the applicable agreement; and
  2. Inventions involving the significant use of funds or facilities administered by TWU are the property of TWU and subject to any obligations to third parties in connection with such support.

2.1.1 Sponsored Research and Other Agreements

Grants and contracts applicable to research sponsored by the federal government are subject to statutes and regulations under which TWU acquires title in inventions conceived or first reduced to practice in the performance of the research. TWU's ownership is subject to a nonexclusive license to the government and the requirement that TWU retain title and take effective steps to develop the practical applications of the invention by licensing and other means.

With rare exception, contracts with industrial sponsors provide that TWU retain ownership of patents while the sponsor is granted an option to acquire license rights.

The terms of such agreements apply not only to inventions made by faculty and staff, but also to those made by students and visitors (whether or not paid by TWU) who participate in performing research supported by such agreements. It is essential, therefore, that all individuals participating in the research be made aware of their obligation to assign rights to TWU and sign Invention and Copyright Agreements as provided under PART 5.

2.1.2 Significant Use of TWU Administered Resources

TWU does not construe the payment of salary nor the provision of library facilities or an office as constituting significant use of TWU funds or facilities except when there is prior written agreement by the University and the faculty member to the contrary.

When an invention involving the significant use of TWU administered resources is made by a student, TWU (with the approval of the laboratory director or department head) may elect to waive its rights except where the invention is subject to a sponsored research or other agreement. At the discretion of the laboratory director or department head, TWU may retain a right to use such invention for purposes of education and research. In addition, a student's rights to such invention may be subject to the terms of any financial aid received, including scholarships, fellowships, traineeships, thesis expenses, or other assistance whether or not administered by TWU. Individuals who are both staff members and students shall be considered to be staff members with respect to patentable inventions which arise during the course of employment.

Disputes arising under this section with respect to significant use shall be finally arbitrated by the Vice President for Academic Affairs.

2.2 Copyright Policy Statement

Copyright ownership of material (including software) created by TWU faculty, staff, students, and others participating in TWU programs is as follows:

Author Owned

The author acquires copyright ownership in materials (including computer software) which are:

  1. Not developed in the course of a sponsored research or other agreement under (a) below;
  2. Not created as a "work-for-hire" by operation of copyright law or created pursuant to an agreement in writing with TWU under (b) below which provides for a transfer of copyright to TWU;
  3. Not developed with the significant use of TWU administered resources under (c) below, except that ownership by students making significant use of TWU resources shall be determined in accordance with Section 2.2.4; and
  4. A student thesis as provided under Section 2.2.5.

TWU Owned

TWU acquires ownership or other rights in copyrightable material (including computer software) as follows:

  1. Copyright ownership in material developed in the course of, or pursuant to, a sponsored research or other agreement is determined according to the terms of such agreement;
  2. Copyright ownership in material created as a "work-for-hire" by operation of copyright law or created pursuant to an agreement in writing providing for transfer of copyright to TWU shall vest in TWU; and
  3. Copyright ownership in material developed by faculty and staff with the significant use of funds or facilities administered by TWU shall vest in TWU.

2.2.1 Sponsored Research and Other Agreements

Normally, research contracts sponsored by the federal government provide the government with specified rights in copyrightable material developed in the performance of the research. These rights may consist of title to such material resting solely in the government; more often, they consist of a royalty-free license to the government with title vesting in TWU.

When a work is created under the terms of a sponsored agreement, authors of copyrightable works should be aware that there may be contractual terms relating to the form of the report or advance notice to the sponsor before publication may be required. The Associate Dean for Research should be contacted for information or assistance regarding interpretation of contract terms.

2.2.2 Works for Hire

Employees - A "work-for-hire" is defined by law as a work product created in the course of the author's employment. Copyright of the work product in these situations belongs to the employer. For example, results of work assigned to staff programmers or writers of university publications are considered to have been created in the course of the author's employment and are the property of TWU. It is the policy of TWU that it shall own all "works-for-hire."

Non-Employees - Under the Copyright Act, copyright of commissioned works of non-employees is owned by the author and not by the commissioning party unless there is a written agreement to the contrary. All TWU personnel are cautioned to ensure that independent contractors agree in writing that ownership of the commissioned work is assigned to TWU, except there special circumstances apply and it is mutually agreed that the author will retain ownership.

2.2.3 Independent Works

TWU does not claim ownership of books, articles, and other scholarly publications or of popular novels, poem, musical compositions, or other works of artistic imagination which are created by the personal effort of faculty, staff, and students independent of employment tasks and which do not make significant use of TWU administered facilities.

In those situations where copyright to such scholarly or artistic work resides in TWU under the terms of a sponsored research or other agreement or by operation of the copyright law or otherwise as a result of this Policy, TWU may, upon the author's request and to the extent consistent with the intent of the sponsor, convey copyright to the author of such work as further provided under this Policy. Where necessary, the approval of the laboratory director or department head will be required.

2.2.4 Significant Use of TWU Administered Resources

TWU does not construe the provision of library facilities or an office as constituting significant use of TWU space or facilities; the payment of salary from unrestricted accounts is not construed as constituting significant use of TWU funds except in those situations where the funds were paid specifically to support the development of material.

Textbooks developed in conjunction with class teaching are also excluded from the "significant use" category, unless such textbooks were developed using TWU administered funds paid specifically to support the textbook development.

TWU does not acquire rights to independently created software which has been developed using conventional TWU resources such as personal computers.

Student authors who make significant use of TWU resources to develop software will retain ownership of such software subject to a royalty-free, nonexclusive license granted to TWU to use the software for purposes of education and research.

2.2.5 Theses and Dissertations

Copyright ownership of theses and dissertations is retained by the student, but the student must grant to TWU royalty-free permission to reproduce and publicly distribute copies of the thesis or dissertation. In circumstances where the research for the thesis or dissertation has been done in conjunction with other policies discussed in this document, those policies will apply with regard to the students.

2.3 Trade and Service Marks

Trade and service marks relating to goods and services developed at TWU shall be owned by TWU.

2.4 Tangible Research Property (TRP)

TWU owns TRP except when it becomes the property of a third party under the terms of a sponsored research or other agreement.

2.5 Distance Learning and Intellectual Property

A distance learning course is one in which 50% of the instruction is delivered via satellite, compressed video, Internet, or other electronic means. Electronic courses are means of communicating content to persons not physically present in the classroom. For the purposes of this Policy, instruction in any electronic medium will be referred to as "distance learning" and the course materials as "electronic courses." Works in any medium may be digitized; thus, electronic courses tend to be multimedia creations, which may compound the clear determination of appropriate uses of contributed materials.

2.5.1 Ownership and Copyright in Electronic Courses

Faculty members hold copyright in electronic course materials they create on their own time or in their ordinary role as a faculty member except that electronic courses belong to TWU if created by faculty under a specific contractual arrangement or as a specific condition of employment with the University. Electronic courses belong to TWU if created by non-faculty employees within the scope of their employment.

Electronic courses created jointly by faculty authors and others whose contributions would be works for hire are jointly owned by the faculty authors and TWU. For works created throughoutt the joint efforts of faculty and non-faculty employees working within the scope of their employment or under contract to provide the services, ownership of the course is shared. A written agreement addressing joint ownership should be completed prior to creation of the course. Any owner of copyright in an electronic course may secure copyright registration; joint owners may, but do not have to, agree to bear responsibility for enforcement of the copyright.

2.5.2 Contributed Materials

Liabilities may be incurred with respect to the inclusion of materials in electronic courses other than materials created by the electronic course author. Contributed materials may include voices or images of persons in the electronic course, including students and guest lecturers. It is the policy of TWU that all faculty and staff comply with the law, including copyright and privacy laws; therefore, creators of electronic courses must obtain all permissions and releases necessary to avoid infringing on copyright or invading the personal rights of others.

2.5.3 Faculty Responsibility to Currently Enrolled Students

Faculty members have a responsibility to meet the reasonable needs of their currently enrolled students and to maintain access to course materials in accordance with TWU policies.

2.5.4 Course Development

Faculty may receive course release or workload credit, as negotiated with the dean, for duties performed in their ordinary role as a faculty member, including development of electronically published course materials. Course release or workload credit does not automatically determine assignment of copyright or royalties. If a course is jointly owned by a faculty author and the University, a written agreement addressing joint ownership should be completed prior to creation of the course.

2.5.5 Revision Rights

When the University has a copyright or ownership interest in the electronic course, the faculty member retains the nonexclusive right to update, edit, or otherwise revise electronic course materials that become out of date, or, in certain circumstances, place a time limit upon the use of course materials that are particularly time-sensitive. These rights and limitations may be negotiated in advance of the creation of the electronic course, be reasonable under the circumstances, and be in writing.

2.5.6 Royalties

Faculty members shall receive all royalties that may accrue from the commercialization of electronic courses they create on their own time or in their ordinary role as a faculty member without substantial university resources above and beyond those normally provided. TWU retains all royalties that may accrue from the commercialization of electronic courses created by faculty members under a specific contract or as a work for hire. In cases of joint ownership (such as an electronic course initiated by a faculty member but with significant use of TWU facilities), a written agreement addressing royalties should be completed prior to creation of the course. Copyright law permits joint owners to pursue commercialization either jointly or separately, with accounting.

2.5.7 Definitions, Exemplars, and Division of Ownership and Royalties

Totally Faculty-Generated without Extraordinary University Resources

Definition

The work results from the individual's efforts while in his/her ordinary role as a faculty member at TWU without substantial university resources above and beyond those normally provided by TWU.

Exemplar 1

A tenure-track faculty member has developed an electronic course from a course previously taught in the traditional (meeting three face-to-face hours per week) format. The semester prior to teaching the electronic course, the faculty member adapts assignments and materials from the previous version and adds new materials and strategies to enhance the online experience. Because the faculty member is teaching the expected course load and, additionally, developing the electronic course during the same semester, the faculty member negotiates work unit credit of course development. The faculty member requires no special assistance, training, or technical support for developing the electronic course.

Exemplar 2

A faculty member is hired into a normal faculty role. The faculty has several years of experience creating and conducting online courses. The faculty member is assigned to teach two courses the second semester she is at the university and is asked to put both courses online (one at 50% and one at 75%). She does this during the same semester she is teaching the courses, staying just one step ahead of the students. She uses her office computer and develops the courses during her normal work hours. Since she has never used Blackboard as a platform, she has to get an orientation to Blackboard plus have several phone consultations with the distance education staff.

Division of Ownership and Royalties

The faculty member owns the intellectual property and has the right to distribute the work commercially. The faculty member will receive all royalties generated from the commercialization of the property.

Substantial University Resources are Provided

Definition

The work results from the individual's efforts with substantial University resources above and beyond those normally provided.

Examplar

A department is developing an online master's program. A faculty member who teaches the public policy class takes responsibility for designing the course. She is provided a .25 research assistant during the fall and spring semesters to assist her in the design and production of all course materials. Additionally, Lifelong Learning contributes 100 hours in design and production of a compact disk that supports class content. The compact disk is duplicated and distributed to all students enrolled in the class.

Division of Ownership and Royalties

The faculty member shares ownership of the intellectual property with TWU. A written agreement addressing joint ownership should be completed prior to creation of the course. Any owner of copyright in an electronic course may secure copyright registration; joint owners may, but do not have to, agree to bear responsibility for enforcement of the copyright. If licensed for commercial purposes either by the University or the faculty member, the University and the faculty member will each receive a percentage of the royalty as negotiated. If not negotiated, each would receive 50% of the net profit. In case of multiple authors, the authors will share the authors' portion of the royalty pro rata based on their participation.

Work for Hire

Definition

A faculty member at TWU is contracted to develop a specific distance learning product, or a non-faculty employee develops such a product within the scope of his/her employment. TWU provides all resources for the work.

Exemplar 1

A faculty member receives a summer stipend for electronic course development in the School of Library and Information Studies. He has no teaching responsibilities during the summer term.

Exemplar 2

A staff member in Lifelong Learning is assigned to develop a one-hour online course, "Introduction to Research" for use in several departments. All course development takes place in the normal course of employment.

Division of Ownership and Royalties

TWU owns all intellectual property and has exclusive educational and commercial ownership and license authority. The faculty or staff member is not entitled to payment of royalty.

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