REG 01.25.03 - Copyright Regulation - Copyright Implementation Pursuant to Copyright Use and Ownership Policy of the University of North Carolina
Authority: Provost and Executive Vice Chancellor
History: First Issued: August 13, 2001. Last Revised: February 7, 2011.
UNC Policy 500.2 - Patent and Copyright Policies
NCSU POL10.00.01 - Patent and Tangible Research Policy
NCSU POL08.00.01 - Computer Use Policy
NCSU REG01.25.02 - Policy Statement on Copyright Infringement
NCSU REG01.25.06 - Use of the University's Names, Marks, Symbols, Images, and Copyrights
NCSU RUL06.01.01 - Copyright Ownership of Works Created by Employees of the North Carolina State University Extension, Engagement and Economic Development Units (Cooperative Extension Service, Industrial Extension Service, Small Business Technology Development Center, Jane S. McKimmon Center, Economic Development Partnership, and General Hugh Shelton Leadership Initiative, and other appropriate units)
United States Copyright Statutes
NCSU Disclosure Form for Copyright Ownership Determination
Independent Contractor Copyright Clause
Volunteer Agreement on Copyright
Administrative Memo: Disclosure of Shop Rights
N.C.G.S. §116-34 - Duties of Chancellor of Institution
Office of the Provost Copyright Administration Resources
Director, Copyright and Digital Scholarship Center, NCSU Libraries (919-513-2416)
This Regulation is issued to implement the Copyright Use and Ownership Policy of the University of North Carolina Board of Governors pursuant to directives in that policy and the Chancellor's executive authority provided in N.C.G.S. 116-34. This Regulation should be read in conjunction with the UNC policy.
This Administrative Regulation on Copyright Implementation seeks to balance the legitimate rights and responsibilities of NC State, its faculty, staff, and students in order to encourage a scholarly atmosphere that enhances NC State's ability to meet its tripartite missions of teaching, research, and service.
2.1. Vigorously promote and support the creation and dissemination of knowledge and ideas.
2.2. Reflect NC State's interest in and responsibility with respect to the ownership and/or management of intellectual property created under its auspices or with its resources.
2.3. Acknowledge the academic tradition of creator ownership of certain types of scholarly works.
3. COPYRIGHT USE - INFORMATION AND EDUCATION
3.1. The Provost, in consultation with the Office of General Counsel, shall:
3.1.1. Provide the NC State community with information about copyright law, with a particular emphasis on the application of fair use in academic settings.
3.1.2. Hold workshops to educate the NC State community about copyright and fair use.
3.1.3. Provide resources on copyright laws in general and on the application of fair use in specific situations.
4. COPYRIGHT COMMITTEE
4.1. A Copyright Committee is hereby established as a University Standing Committee to be appointed by the Chancellor.
4.2. The committee shall consist of seven members: four faculty, one non-faculty EPA employee, one SPA employee, and one graduate student. The Chancellor may also appoint non-voting, ex-officio members from offices such as General Counsel, Technology Transfer, Libraries, and Provost.
4.3. The primary charge of the committee shall be to review copyright matters and make recommendations to the Provost with whom authority for implementation of the UNC Copyright Use and Ownership Policy resides.
Matters may include determination of the copyright owner of a particular work, the scope of a "shop right" (defined in part 6.4), and division of royalty. Proposed exceptions to this Regulation shall be reviewed by the Copyright Committee in concert with the Office of General Counsel to ensure consistency with UNC Board of Governors policy.
4.4. The Copyright Committee shall regularly review the operation of this Regulation and make recommendations for change when needed.
4.5. The Copyright Committee shall assist in identifying educational needs of the faculty and others related to compliance with copyright policies and guidelines, and shall advise the Provost on appropriate ways to address those needs.
4.6 The Copyright Committee may delegate part of its responsibilities to the Director, Copyright and Digital Scholarship Center, NCSU Libraries. For example, the Committee may authorize the Director to determine ownership questions that need resolution before the Committee can meet. If the Committee does delegate responsibilities to the Director, the Committee shall assign one or more of its voting members to confer with the Director. Alternatively, the creator or any other interested parties may request full committee review of the disclosure/issue.
5. COPYRIGHT OWNERSHIP FOR WORKS CREATED BY EMPLOYEES, STUDENTS AND OTHERS
5.1. Compliance with the UNC Copyright Use and Ownership Policy and this Regulation is a condition of employment for all NC State employees, and a condition of enrollment for all NC State students.
5.2. NC State may grant greater rights than specified in this Regulation by assigning any or all portions of copyright it owns to an employee or student creator in appropriate circumstances, and/or may share royalties.
5.3. Summary of Ownership Rights Under the UNC Policy
The UNC Copyright Use and Ownership Policy establishes the categories of creators, types of copyrightable works, and ownership scenarios that govern copyright ownership at NC State. This Regulation is intended to clarify and customize that policy for NC State but only within the established parameters of the overarching UNC Policy.
5.3.1. Works By Faculty And EPA Employees, Including Post-Docs.
18.104.22.168. Directed Works:
Directed Works are works that are specifically funded or created at the direction of NC State.Directed works are those works created as a specific requirement of employment or pursuant to an assigned institutional duty that may, for example, be included in a written job description or an employment agreement so as to qualify as a work made for hire. Such works may include those whose creation is instigated or facilitated by a unit of NC State for the express purpose of making such works available to individuals or entities other than, or in addition to, the creator(s) for use in teaching, research, public information, or other NC State activities.
NC State does not, however, claim ownership of faculty-created instructional materials or courseware merely because it requires faculty members to teach courses as part of their regular responsibilities.
Similarly, NC State does not claim ownership of faculty-initiated scholarly works based merely on general expectations that faculty members will publish such works.
Directed works also include works created by faculty or staff in an institute, center, department, or other unit that, with approval of the Provost, has adopted rules providing that copyright in materials prepared by such faculty or staff in the course of their work with that unit vests in NC State and not in its creator.
NC State holds copyright to Directed Works. The creator holds a "Shop Right" (defined in part 6.34).
22.214.171.124. Traditional Non-directed Works Created Without Exceptional Use of NC State Resources:
Traditional Non-directed Works are pedagogical, scholarly, literary, professional, or aesthetic works resulting from non-directed effort. Such works may include textbooks, manuscripts, scholarly works, fixed lecture notes, distance learning materials not falling into one of the other categories of this Regulation, works of art or design, musical scores, poems, films, videos, audio recordings, or other works of the kind that have historically been deemed in academic communities to be the property of their creator. The creator of the work holds copyright. NC State holds a "Shop Right."
126.96.36.199. Traditional Non-directed Works Created with "Exceptional Use" of NC State Resources.
The UNC policy provides that NC State owns copyright in works created by faculty or other employee creators if the work is created with "exceptional use of institutional resources." "Exceptional use of institutional resources" means institutional support of traditional non-directed works with resources of a degree or nature not routinely made available to faculty or other EPA employees in a given area. (See part 6.5 for details.) NC State holds copyright and the creator holds a "Shop Right".
There is no requirement or obligation to determine exceptional resource use unless there is an intent to commercialize or a desire for clarification of ownership. In practice, "Intent to Commercialize" may be formed no later than any action taken to commercialize.
188.8.131.52. Sponsored or Externally Contracted Works:
Sponsored or Externally Contracted Works are any works developed using funds supplied under a contract, grant, or other arrangement between NC State and a third party, including a sponsored research agreement. Copyright ownership shall be as specified in the agreement; When a contract is silent on intellectual property ownership, the other provisions of part 5.3.1 apply. However, resources supplied pursuant to an external contract, grant, or a sponsored research agreement do not constitute “exceptional use.” As provided in part 6.1 below, the creator must promptly disclose the existence of the work to of Technology Transfer (OTT) if the sponsorship agreement provides that NC State or a third party shall hold copyright to works created under the agreement. This disclosure requirement does not apply to technical reports prepared for a Sponsor or scholarly journal articles.
5.3.2. Works By SPA Staff Created In The Scope Of Employment
184.108.40.206. Under the UNC policy, works created by staff employees (SPA) in the scope of employment are "Work for Hire" within the meaning of copyright law, and are therefore owned by NC State unless there is a written agreement providing otherwise.
220.127.116.11. The Copyright Committee may recommend, and the Provost may decide to grant, a share of royalties, or some or all of the copyright, or a "shop right," to an SPA employee in certain circumstances. For example, these circumstances may include, but are not limited to, a recommendation from the supervisor coupled with an unusually valuable and hard-to-duplicate work product.
5.3.3. Works By Independent Contractors And Volunteers:
By law, unless NC State obtains a transfer of copyright ownership in writing, independent contractors and volunteers hold the copyright to works they create.
18.104.22.168. Where a contractor may create copyright work, NC State requires that there be a written contract specifying institutional ownership of the intellectual property of the work. The NC State unit that has initiated or benefited from the contract shall be responsible for including contract language providing for NC State ownership. Model language is included in the Independent Contractor Copyright Clause
22.214.171.124. Volunteers shall retain the copyright to works they create unless the NC State unit that has initiated or benefited from the work obtains the copyright or license to use the work. The NC State unit is responsible for obtaining the appropriate rights as necessary.
5.3.4. Works By Students:
The student, with the following exceptions, holds copyright to works the student creates as a part of academic endeavor at NC State.
126.96.36.199. Sponsored or Externally Contracted Works:
Copyright ownership in works created by students under a sponsored agreement or external contract shall be the same as provided for faculty or EPA employees in part 188.8.131.52. If a student has been hired by NC State to work on a sponsored agreement, this provision shall control over part 184.108.40.206.
220.127.116.11. Works for Hire:
For student employees who are not classified as EPA employees, copyright ownership is the same as provided for SPA employees in section 5.3.2. For categories of student employees that are classified as EPA employees, copyright ownership is the same as provided for EPA employees in section 5.3.1.
18.104.22.168. Class or Laboratory Notes:
Student class and lab notes may be "derivative works" within the meaning of copyright law, in which case they may be used only for personal educational purposes. Commercial use of such works may constitute unlawful copyright infringement. Exceptions may be granted by the Director, Copyright and Digital Scholarship Center, NCSU Libraries in the case of notes that are derived from NC State -owned works, or may be granted by the individual copyright owner of works from which the student notes have been derived.
22.214.171.124. As a condition of enrollment, NC State retains a "Shop Right" in student works created as part of academic endeavor at NC State. This NC State right is subject to the student's privacy rights under federal law.
5.3.5. Works Involving Unknown Creators:
This part applies to materials that appear to have been created in the scope of NC State employment or student endeavor (e.g., laboratory manuals, tests, self-paced learning modules, photos or drawings) by one or more unidentified student or employee creators.
126.96.36.199. Unknown employee creators
188.8.131.52.1. If the creators cannot be identified, NC State shall hold the copyright to the work.
184.108.40.206.2. If some but not all creators can be identified, the known creators shall hold in accordance with the other provisions of this Regulation and NC State acquires the ownership interest of the unknown employee creators.
220.127.116.11. Unknown student creators
Student works shall be governed by part 5.3.5, supra.
6. PROCEDURES FOR DETERMINING COPYRIGHT OWNERSHIP
6.1. Disclosure Of Employee And Student Works
6.1.1There is no mandatory disclosure requirement for traditional non-directed works created without exceptional use of NC State resources and for traditional student works. Faculty and students should discuss copyright matters with their department head or equivalent supervisor to assure consistent interpretation of these regulations.
6.1.2 There is no mandatory disclosure requirement as long as there is no intent to commercialize the work, for the following types of works:
(a) directed works;
(b) traditional non-directed works created with exceptional use of NC State resources; or
(c) students works covered by 18.104.22.168., 22.214.171.124., and 126.96.36.199.
To commercialize a work means to sell, license or otherwise transfer some or all of the intellectual property rights in a work including grants of permission or a license to use the work. However, commercialization does not include the transmission of technical reports to the sponsor or submission of scholarly journal articles for publication. If any question exists regarding whether disclosure is required, contact the Director, Copyright and Digital Scholarship Center, NCSU Libraries .
6.1.3 For a sponsored or externally contracted work where the creator holds copyright pursuant to 188.8.131.52., disclosure is mandatory only if there is an intent to commercialize. Where there is an intent to commercialize, disclosure must be made as soon as the intent to commercialize or otherwise transfer rights (including grants of permission or licenses) is formed.
6.1.4 For a sponsored or externally contracted work created under an agreement that requires copyright ownership by NC State or a third party, the creator of the work must disclose the work to OTT at or very close to the time the work is created.
6.1.5 Disclosures must be made in writing to the creator's department head. The department head will forward the disclosure to the Copyright Committee via the Director, Copyright and Digital Scholarship Center, NCSU Libraries, with a copy to the dean and to the Director of the Office of Technology Transfer, for review of copyright ownership questions. See the Disclosure Form for Copyright.
6.2. Commercialization Of Employee-owned or Student-owned Works By University
6.2.1 When a NC State employee or student wants NC State assistance to commercialize a work for which he/she believes he/she owns the copyright, he/she should contact the Office of Technology Transfer. If OTT decides to assist, NC State and creator shall negotiate a revenue sharing agreement.
6.2.2 Use of NC State’s share of the proceeds shall be at the discretion of the Provost and Executive Vice Chancellor and the Vice Chancellor for Research and Innovation. Normally the NC State share of revenues will be allocated among OTT, the department of the creator, the college or division, and university-wide.
6.3. Commercialization of NC State Owned Works:
6.3.1 If a work created by faculty or an EPA employee is owned by NC State and the work will be sold, licensed, displayed, performed, reproduced, or distributed for use outside the university, the work must be disclosed to OTT. If OTT decides not to commercialize a work, it may authorize commercialization by the department of the person who requested the outside use, in which case the department shall retain all net revenues it receives. Where OTT commercializes a work, NC State shall first recover its direct costs. After NC State direct costs are recovered, the creator shall receive forty (40%) percent of the proceeds and NC State shall receive sixty (60%) percent.
184.108.40.206 “Direct costs” for purposes of this Regulation shall include the documented cost of production, financial support for creation of the work, sales, advertising, distribution, licensing, costs of obtaining patents, copyrights, stipends, and release time.
220.127.116.11 Use of NC State’s share of the proceeds shall be at the discretion of the Provost and Executive Vice Chancellor and the Vice Chancellor for Research and Innovation. Normally the NC State share of revenues will be allocated among OTT, the department of the creator, the college or division, and university-wide.
6.3.2 If a work is owned by NC State and is to be commercialized only for use by students and faculty at the university, commercialization may be conducted by the university department that employs the creators or that proposes to use the work. In such cases, the department may self-publish the work, or may contract with an outside publisher subject to review by the Office of General Counsel. The department shall retain all the net revenues. Examples would be lab manuals or student handbooks to be sold exclusively to students taking the course associated with the work.
6.3.3 In cases where an invention or creation is subject to protection under both patent law and copyright law, if NC State elects to retain title to its patent rights, then the inventor/creator(s) shall assign copyright to NC State and NC State shall be compensated in accordance with the royalty provisions of its patent policy and procedures.
6.3.4 In cases where a work is subject to university trademark protection and also is under copyright, university rules and regulations pertaining to trademark shall prevail with respect to ownership, licensing, and royalties.
6.4. Shop Rights
6.4.1. "Shop Right" for NC State means the right to use the original work in NC State programs of teaching, research, and public service on a non-transferable, perpetual, royalty-free, non-exclusive basis. "Shop Right" for the creator means the right to use the original work for the creator's own teaching, research, and public service on a non-transferable, perpetual, royalty-free, non-exclusive basis. A "Shop Right" does not allow one to sell rights to the work or otherwise interfere with the copyright owner's ability to commercialize the work.
6.4.2. The practicality of a “Shop Right” is presumed, and therefore the “Shop Right” exists automatically unless the matter is submitted to the Copyright Committee for review. The Copyright Committee shall determine whether a “Shop Right” is appropriate and shall include this determination in its recommendation to the Provost. Where the creator must assign copyright to a journal for purposes of publication and the journal demands that the university have no “Shop Right,” the recommendation on waiving the university’s “Shop Right” can be made by the Copyright Committee.
6.5. Exceptional Use
6.5.1. The following situations are presumed to be normal use, and will result in faculty or other EPA employee ownership of the work: ordinary use of computers and other office equipment, laboratory or office space, libraries, secretarial services at routine levels, and professional development activities.
6.5.2. The following situations are presumed to be exceptional use, and will result in NC Stateownership of the work:
18.104.22.168. Waiver of fees normally required to use specialized NC State facilities (e.g., equipment, production facilities, service laboratories, special computing resources, studios) where those facilities are used in creation of the work;
22.214.171.124. NC State funding or gifts specifically in support of the work's creation;
126.96.36.199. Reduction in levels of teaching, service or other NC State employment responsibilities (e.g., course load, student advising, division/department meetings, office hours, administrative tasks) for the purpose of facilitating creation of the work, other than pursuant to conditions set forth in a grant.
6.5.3. Any question concerning whether a particular work was created with exceptional use ofNC State resources should be referred to the Copyright Committee by submitting a Disclosure Form.
7. MODIFICATIONS AND RECOGNITION
7.1. NC State-Owned Works
In cases where NC State owns the copyright to a work, NC State ordinarily will recognize that faculty/EPA creators with a Shop Right have the right to: be recognized for their contribution as creators; have the first opportunity to make revisions and derivatives of the work (subject to reasonable deadlines and peer review); request a revision or update; have their names removed from a work; and the right to use the work in professional contexts, such as conferences and consulting, provided the use of such work does not result in a conflict of interest or impede commercialization by the copyright owner.
7.2. Employee-Owned Works
In cases where the creator owns the copyright, the creator is encouraged to acknowledge, in a form appropriate to the nature of the work, NC State's support in the creation of the work. NC State retains exclusive rights to determine whether NC State's name or logos, including those of any unit of NC State, may be used in the provenance of the work, although the name of NC State or unit may be used to identify the affiliation of the creator. NC State's name shall not be used in a manner that suggests endorsement or commercial association.
8. DISPUTE RESOLUTION
8.1. The Copyright Committee shall have exclusive jurisdiction to address copyright questions at NC State.
8.2. When a copyright dispute is presented to the Copyright Committee, it shall review the matter, prepare a record of the dispute, and forward its recommendation and the record to the Provost.
8.3. If copyright questions arise in the course of another type of grievance procedure or hearing at NC State, where other issues are also at stake, the hearing panel shall refer the copyright questions to the Copyright Committee, which shall then make a recommendation to the Provost. The Provost shall send a decision on the copyright questions to the hearing panel, and that hearing panel will incorporate the Provost's decision into the overall decision or recommendation of the hearing panel.
8.4. The Provost's decision shall be the final University decision and not subject to the grievance procedure.