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Development of Copyrighted Materials - Faculty Handbook

VI. RESEARCH AND CREATIVE ENDEAVOR (Cont.)

The following policy was approved by the Board of Trustees on June 22, 2001 and revised on May 6, 2005; it replaces the statement on Development of Instructional Materials approved by the Board of Trustees on November 16, 1973.

Introductory Concepts

"Circular 1: Copyright Basics", issued by the United States Copyright Office in the Library of Congress 1 , begins with the following definition:

"Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
+ To reproduce the work in copies or ;
+ To prepare derivative works based upon the work;
+ To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
+ To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
+ To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
+ In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act."
Among its several other provisions, Circular 1 states:
"Copyright protects ''original works of authorship'' that are fixed in a tangible form of expression."
"Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as: (1) a work prepared by an 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...... The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary."
and
"Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution."
Section I -- Ownership Principles

MSU follows standard academic practice in disclaiming ownership of, and royalties proceeding from, traditional academic works (books, essays, works of art, musical compositions and recordings, and the like), unless one or more "Special Circumstances" exist.  The Special Circumstances that cause the University to retain copyright ownership are set forth in Section II, below. Works for which Special Circumstances exist and of which the University retains ownership are called "University-owned" works in this Policy.

It is also the tradition at Michigan State University and its peer institutions for eligible "University Authors" to share in third-party licensing revenue received by the University in those cases where Special Circumstances cause the University to retain copyright ownership. Eligible University Authors are identified in Section III.

Students who author or create copyrighted works which are submitted to meet course requirements own the copyrights in such works, even if they have been created using University facilities. Neither the course instructor nor the University may utilize or distribute student-owned copyrighted works for purposes beyond those of the course in which they are submitted without obtaining the written permission of the student. Students also own the copyrights in their theses and dissertations.

Section II -- Special Circumstances in which the University Retains Copyright Ownership

The University retains the ownership of copyrighted works created by one or more of its employees within the scope of their employment whenever at least one of the following Special Circumstances applies:

  1. Creation of the work involved substantial 2 use without charge of equipment, materials, or staff services of any of the various units of the University;
  2. Creation of the work was supported with money, released time 3 , or other substantial 2 resources from any unit of the University;
  3. Creation of the work was directly commissioned 4 by the University or one of its units, where the employee(s) who created the work did so using some part of the time for which compensation was received from any University budget, including any grant or contract budget administered by the University or any budget based on special legislative appropriations; or
  4. Creation of the work occurs in University-approved faculty outside work for pay, if in the opinion of the administrators approving such outside work for pay the work predictably competes with University functions or products that are, or reasonably might be, developed and offered by the University in the furtherance of its mission.
In some cases, University units may wish to provide substantial support for the creation of copyrightable works without such support constituting a Special Circumstance. (For example, manuscript completion subventions are common in certain disciplines.) In such event, the unit should contact the Office of the Provost prior to providing the support. The Office of the Provost shall have discretion to grant a waiver in appropriate cases, after obtaining the agreement of all units providing support for the work in question.

Payment of salary to an individual on sabbatical shall not be construed as support for the creation of a specific work, and hence shall not by itself constitute a Special Circumstance.

Any person who has a question as to whether the creation of a particular work falls within the scope of employment and/or qualifies under one or more of the Special Circumstances should initiate an inquiry with the Office of the Provost as soon as possible after the question arises.

Section III -- University Authors of Works Owned by MSU

For the purposes of this Policy, a University Author of a work is anyone of the following who, in the scope of his/her employment at the University, authors or creates, either alone or in collaboration with others, a University-owned work:

  1. faculty member,
  2. specialist,
  3. librarian,
  4. executive manager,
  5. postdoctoral research fellow,
  6. research associate appointed through the academic personnel system,
  7. MSU Extension or Experiment Station field staff member,
  8. NSCL continuing appointment system staff member,
  9. graduate or graduate professional student conducting academic research or creative activity, or
  10. undergraduate student conducting academic research or creative activity.
Any member of the University community who contributes to the creation of a University-owned work may be treated as a University Author with respect to that work upon the written agreement of all authors or creators of that work who are themselves University Authors.

In addition, the Office of the Provost shall have discretion to enter into agreements whereby University Author status is granted to and accepted by other individuals who hold a copyright interest in a given work and who assign such interest to the University.

If for a given University-owned work there exists no living or dead University Author, then the provisions of this Policy regarding University Authors are inapplicable to that work.

Section IV -- External Constraints on Copyright Ownership

Copyrighted works created by University employees and produced under grants to the University from the federal government or other extramural funding sources, or produced under contracts between the University and third parties, shall be subject to the contract or grant with respect to copyright ownership, distribution and use, and other rights.

Section V -- Internal Use of University-Owned Works

Each use of a University-owned work by any unit of the University shall be subject to the following conditions:

  1. Use internal to the University requires approval of the unit 5 primarily responsible for the creation of the University-owned work. Such approval will be deemed implicit when the sponsoring unit5 agrees to storage and distribution by the University and if the sponsoring unit schedules courses and assigns instructional duties to which the University-owned instructional work is relevant.
  2. As long as a faculty member who is a University Author of University-owned material that was not directly commissioned by the University remains a member of the faculty of the University, his/her approval shall be required for internal use of the University-owned work, and his/her contribution should be explicitly acknowledged by the University user.
  3. To ensure the viability of long-term programs dependent upon University-owned works directly commissioned by the University, units of the University may use such directly commissioned works on a continuing basis, with or without the approval or further involvement of their University Authors. The contribution of University Authors should be explicitly acknowledged by the University user. A University Author of such work may petition the Office of the Provost that it be withdrawn for good cause (e.g., if the work contains serious errors or deficiencies in content or pedagogy that are not being resolved through amendment). The Office of the Provost may seek peer evaluations of the work in question, to assist it in assessing such withdrawal requests.
  4. When a University Author is no longer an employee of the University, the University may make internal use of the University-owned works he or she created without his/her approval or further involvement. A University Author no longer employed by the University may petition the Office of the Provost that such work be withdrawn for good cause (e.g., if the work contains serious errors or deficiencies in content or pedagogy that are not being resolved through amendment). The Office of the Provost may seek peer evaluations of the work in question, to assist it in assessing such withdrawal requests.
Section VI -- External Use and Publication
  1. Subject to the provisions of this Policy, the University may, at its discretion, assign, transfer, lease, or sell all or part of its legal rights in a University-owned work, or place such work in the public domain. Where academically appropriate and feasible, the University may obtain other forms of legal protection for such University-owned works in the name of the University.
  2. University Authors who create a peer-reviewed or public service/outreach work that is University-owned under the provisions of Section II are delegated authority to transfer the copyright in that work to a publisher without administrative intervention, provided all of the following conditions are met:
    1. such transfer is agreed to in advance by the complete set of authors,
    2. the work in question was not directly commissioned by the University,
    3. neither the authors nor their unit(s) will receive compensation for such transfer,
    4. such transfer is reported promptly to the University via the administrative system provided for that purpose,
    5. except for the transfer of copyright, the transfer agreement does not contractually bind the University,
    6. the work and the copyright transfer do not violate third party rights, and
    7. the work and the copyright transfer otherwise conform to scholarly norms.

    This authorization may be extended to works involving compensation of authors and/or units where such compensation does not exceed a level periodically approved by the University.

  3. All other use, licensing, and/or sale of University-owned works external to the University (for example, use by educational institutions other than the University, by government and other non-profit institutions, and use resulting from lease or other contractual arrangements for commercial distribution of the works) may be undertaken by the University at its discretion following receipt of a written memorandum from all University Authors of the work, agreeing to such external use, licensing, and/or sale. Such agreement shall not be unreasonably withheld.
Section VII -- Revision of University-Owned Works
  1. The University Author(s) of a University-owned work may revise it at any time, provided that the revision does not require substantial University resources, and that he/she gives the University and other University Authors of the work (if any) notice of the revision. When substantial University resources are required for an author-initiated revision of a University-owned work, the University Authors shall request advance approval of the resource allocation from the unit(s) sponsoring the work 5 and/or providing the resources.
  2. All surviving University Authors primarily responsible for the creation of a University-owned work must concur in its revision, unless the work was directly commissioned by the University
  3. The revision of University-owned works that were directly commissioned by the University may also be initiated by the University at its election, with or without the approval or participation of the work's original University Authors. However, the University Authors of the original work are entitled to continuing credit for their contributions to the derivative work created through such revision, if they desire to have their names associated with the derivative work. In addition, if the derivative work is externally sold or licensed, the University Authors of the original work are entitled to such participation in University Author royalty sharing under Section VIII as may be equitable in the specific circumstances.
Section VIII -- Payments to University Authors
  1. a) If the University markets a University-owned work for external use, any net income actually received by the University (after the documented cost of production, sales, advertising, distribution and any unrecovered overhead, but not to include the costs of original development unless so stipulated in the contract or grant) shall be distributed so that the University Author (or all University Authors collectively if there is more than one) receives the first $5,000 of such net income, 50% of the next $20,000, 30% of the next $50,000, and 25% of all additional net income. The University shall retain and use the remainder of the net income to encourage further development of copyrightable works.

    b) If the University contracts with a third party to reproduce and sell a University-owned work, the total royalties shall be negotiated between the University (after consultation with the University Author(s)) and the third party, and the net income shall be distributed to the University Author(s) and retained and used by the University in accordance with the schedule and for the purpose set forth above.

  2. If a University-owned work prepared for use in another unit of the University is used for extension instruction with the advice and assistance of its University Author(s), then Michigan State University Extension, in accordance with its existing policies, may make additional payment to the University Author(s) for such advice and assistance.
  3. A University Author may be compensated for use of University-owned video materials in which the University Author personally and prominently appears, when such materials are used while the University Author is not on assignment with the University (e.g., when the University Author is not appointed during summer session, or is on leave). Compensation should be mutually agreed upon in advance by the University Author and the unit(s) involved, based upon (a) the amount of continuing responsibility of the University Author for the use of the University-owned video material; (b) whether the University-owned video material is complete in itself or embedded in another work; and (c) the extent to which the University Author's time and creative efforts have previously been compensated. As a guideline for works in video format, the University author may be compensated on the basis of load credit or salary equal to 1% of the annual salary for each six video hours developed. Such payment or credit should be limited to a period of two years.
Section IX -- Transfer of Rights to University Author

If the University discontinues use of University-owned instructional materials in their existing form for more than two years, if no revision is in process, if the University is not otherwise bound by grant or contract, and if all living University Authors of the instructional materials so request in writing, the University shall transfer the copyrights in such instructional materials to the University Author(s), provided that the University Author(s) shall be required to pay all costs associated with the transfer, including expenses associated with copying, mailing and handling, duplication and copyright transfer, but not to include original costs of production.

Section X -- Protection and Liability

  1. Protection
    1. The Office of the Provost shall investigate allegations of unauthorized use or copyright infringement of University-owned works and shall recommend appropriate action. If the University initiates legal action in response to an unauthorized use or infringement, all costs of such action (including attorney's fees) shall be borne by the University, which shall control the action. All net proceeds of such action in excess of such costs shall be shared by the University and the University Author(s) is accord with the formula set forth in Section VIII-1(a).
    2. If the University decides not to initiate legal action, the University Author(s) may do so, and the University shall assign to the University Author(s) such rights as are necessary for the limited purpose of pursuing redress for the unauthorized use or infringement. Costs of such action (including attorney's fees) shall be borne by the University Author(s) who shall have the right to all proceeds resulting from that action.
  2. Liability
    1. The University Author(s) of a University-owned work shall obtain appropriate written releases, granting all necessary rights to the University to allow the full exercise of its copyright in the work. These releases shall be kept by the unit producing the work until such time as the work is withdrawn from circulation.
    2. Before any external use is made of a University-owned work, the University Author(s) shall certify in writing to the Office of the Provost that the work does not infringe any existing copyright or other legal right held by third parties.
    3. In the event third parties assert claims against the University and/or University Author(s) arising out of or related to a University-owned work, the University shall assume responsibility for the defense and control of any legal action arising from such claims, in accordance with the University's Indemnification Policy.
Section XI -- Implementation

This Policy shall take effect upon approval by the Board of Trustees and shall be administered and interpreted by the Office of the Provost.


Footnotes:

1 The quoted text may be found at http://lcweb.loc.gov/copyright/circs/circ1.html

2 The use of personal computers for word-processing is not considered "substantial" for the purposes of this policy; access to such equipment is provided to members of the general public at various sites on the MSU campus. Other specific examples of equipment, materials, and service uses that are considered substantial or non-substantial by the Office of the Provost may be found in a supplemental handbook.

3 "Released time" is an adjustment to normal assigned duties that is made to facilitate the creation of the copyrighted work.

4 "Commissioned" as used herein means the creation of the work was requested, initiated, authorized, or assigned by the University. It does not imply or necessitate that any supplemental payment is made.

5 Questions regarding the identity of such a unit may be referred to the Office of the Provost for resolution.

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