REG 01.25.03 – Copyright Regulation – Copyright Implementation Pursuant to Copyright Use and Ownership Policy of the University of North Carolina

Authority: Executive Vice Chancellor and Provost

History: First Issued: August 13, 2001. Last Revised: February 9, 2023.

Additional References:
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
Frequently Asked Questions
Where to Disclose

Contact Info:
Director, Open Knowledge Center, NC State University Libraries (919-513-2416)

1. INTRODUCTION

This regulation implements and effects the provisions of the Patent and Copyright Policies and the Regulations for Establishing a Copyright Use and Ownership Policy of the University of North Carolina (“UNC Policies”). This regulation should be read in conjunction with the UNC Policies. By delegation of the Chancellor, the Office of the Executive Vice Chancellor and Provost shall administer NC State’s Copyright Policy and develop and implement the procedures necessary for administration.

This regulation 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 missions of teaching, research, and service.

2. DEFINITIONS

When used in this regulation:

2.1 “Creator” means the author of the original expression in a work.

2.2 “Work(s)” means an original work of authorship fixed in any tangible medium of expression which can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Examples of such works include: literary works such as books, journal articles, poems, manuals, manuscripts, memoranda, tests, papers, bibliographies, theses, and dissertations; technological works such as computer programs, instructional materials, and databases; artistic and musical works including accompanying words; dramatic works including accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works, including photographs, diagrams, sketches, and integrated circuit masks; motion pictures and other audiovisual works such as videotapes; and sound recordings.

2.3 “Commercialization” 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. Commercialization does not include the transmission of technical reports to the sponsor or submission of scholarly books, journal articles for publication, nor the provision of course materials (e.g., CoursePaks) to the NC State Bookstore or similar vendor developed for use by students in conjunction with a specific NC State course.

2.4 “Direct costs” mean documented costs of production, financial support for creation of the work, sales, advertising, distribution, licensing, costs of obtaining intellectual property protection, stipends, and release time.

2.5 “Directed Work(s)” means a work created within the employment responsibilities of the creator, as a specific work assignment, with sponsored or external funds administered by the University, or with the Exceptional Use of University Resources. However, a faculty member or student’s general obligation to produce scholarly works or teach courses does not constitute a Directed Work. In addition, a Directed Work shall include works produced as a collaborative effort initiated by a college or department, or works that are created and then developed and improved over time by a series of individuals, where authorship cannot be attributed to any one individual or group of individuals. Computer software created by non-faculty University programmers for use by the University constitute Directed Works. A Directed Work also includes a work created by faculty, staff, or students in a University institute, center, or other unit that, with approval of the Provost, has adopted rules providing that copyright in materials authored by such faculty, staff, or students in the course of their professional work or course study with that unit vests in the University and not in its author. Instructional materials or courseware created by faculty members required to teach courses as part of their employment responsibilities shall not be deemed Directed Works.

2.6 “Exceptional Use of University Resources” means the University has provided support for the creation of the work with resources of a degree or nature not routinely made available to faculty, other EHRA employees, SHRA staff, or students. University resources are to be used solely for University purposes and not personal gain or personal commercial advantage, nor for any other non-University purposes. Exceptional Use of University Resources may include, but is not limited to: waiver of fees normally required to use specialized facilities such as equipment, production facilities, service laboratories, specialized computing resources, and studios; University funding or gifts in support of the work’s creation; or reduction in levels of teaching, service or other typical University activities (e.g., course load, student advising, division/department meetings, office hours, administrative responsibilities) specifically to facilitate creation of the work. In addition, use of the University’s name in connection with a personal work, other than by way of identification of the creator as a faculty member, researcher or other employee or student at NC State, is itself Exceptional Use of University Resources, However, ordinary use of computers, laboratory space, libraries, office space or equipment, limited secretarial or administrative services, or professional development activities shall not be considered Exceptional Use of University Resources. For students enrolled in a course of study, use of course laboratory, computing and library facilities, software, supplies and materials at a level ordinarily provided to students in the course are not considered to be Exceptional Use of University Resources.

2.7 “Student(s)” means any person who has accepted admission to NC State through the date of graduation. This includes new students at Orientation, persons not currently enrolled but who are still seeking a degree from NC State, any person enrolled in a credit earning course offered by NC State, and teaching, graduate, and research assistants.

2.8 “Student Works” mean papers, computer programs, theses, dissertations, artistic and musical works, and other creative works made by University students that are produced outside any University employment, and are not Directed Works. Notes of classroom and laboratory lectures and exercises taken by students shall not be deemed Student Works.

2.9 “Traditional or Non-Directed Work” means a pedagogical, scholarly, literary, or aesthetic (artistic) work resulting from non-directed effort. Such works may include textbooks, manuscripts, scholarly works, fixed lecture notes, 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 property of their creator. A Traditional or Non-Directed Work shall also mean any work created in the course of permissible outside activities resulting from a contract between the individual directly and a third-party.

2.10 “University” means NC State and all of its undergraduate, graduate, and professional schools, colleges, centers, and administrative units.

2.11 “Work Made for Hire” means (a) a work prepared within the course and scope of employment, or (b) a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or 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. For the avoidance of doubt, works created in the course of a student’s employment by the University shall be considered Works Made for Hire.

3. SCOPE AND COVERAGE

This copyright policy applies to all faculty, EHRA employees (including postdoctoral scholars), SHRA staff, and students of the University. Compliance with the terms of this copyright policy is a condition of employment for University faculty, EHRA employees, and SHRA staff, and of enrollment for University students. This copyright policy is subject to any applicable laws and regulations or to specific provisions in grants or contracts that govern rights in works subject to copyright created in connection with sponsored research.

4. FACULTY, STAFF, AND STUDENT USE OF WORKS SUBJECT TO COPYRIGHT

4.1 Appropriate Use of Works Subject to Copyright

The University is committed to complying with all applicable copyright laws. As an institution devoted to the creation, preservation, and dissemination of knowledge through teaching, research, and public service, the University supports the responsible, good faith exercise of full fair use and face-to-face instruction rights as codified in 17 U.S.C. §§ 107 and 110(1), by faculty, staff and students in teaching, research, and service activities. Except as allowed by law, it is a violation of this policy and law for University faculty, staff, or students to reproduce, distribute, display publicly, perform, digitally transmit, or prepare derivative works based upon a work subject to copyright without permission of the copyright owner.

4.2 Information and Education on Copyright Use

The Provost, in consultation with the Office of General Counsel, shall be responsible for administering and implementing this Policy. The Provost or his or her designee shall:

(a) Provide the University community with information about copyright law, with a particular emphasis on the application of fair use in academic settings;

(b) Hold workshops to educate the University community about copyright and fair use; and

5. OWNERSHIP

5.1 Ownership by Faculty and EHRA Employees, Including Postdoctoral Scholars

Consistent with academic freedom and tradition, faculty, EHRA employees, and postdoctoral scholars (collectively “EHRA Employees” herein) own all Traditional or Non-Directed Works unless the work was a Directed Work or a Work Made for Hire.

5.2 Ownership by SHRA Employees

Most works by SHRA employees are considered to be Works Made for Hire. However, SHRA employees own works created at their own initiative, outside the scope of their employment, and without Exceptional Use of University Resources. In addition, SHRA employees may own a work when the University waives ownership of the work or where there is a written agreement providing ownership to the employee.

5.3 Ownership by Students

5.3.1 Students shall own the copyright in Student Works except where the work:

(a) is a Directed Work

(b) involves Exceptional Use of University Resources; or

5.3.2 Students are frequently involved in the creation of works in consultation with, or under the supervision of, University faculty and staff. Such works may be related to coursework, research, extracurricular activities, or other University projects. In some circumstances, it is difficult to determine whether and to what extent the students are acting as agents or employees of the University. When ownership of these works is unclear, written agreements with students regarding ownership of the work should be considered, consistent with this copyright policy and after consideration of the parties’ rights and interests.

5.4 University Ownership

The University owns the following works:

(a) Directed Works; and

(b) Works Made for Hire.

5.5 Works by Independent Contractors

Works produced for the University by independent contractors shall be considered Works Made for Hire and shall be owned by the University. No University unit or department shall enter into any agreement or arrangement for work to be produced by an independent contractor without a written contract, signed by the authorized University designee, stating University ownership of the intellectual property in the work.

5.6 Volunteers

Volunteers shall retain the copyright to works they create unless the University unit or department that has initiated or benefits from the work obtains the copyright or license to use the work. If the volunteer service involves the creation of a work that will be used by the University, the unit or department responsible for overseeing the volunteer shall require that the volunteer execute a Volunteer Agreement to Grant Copyright License or Volunteer Agreement to Assign Copyright for the work.

5.7 University’s License in Works

5.7.1 As a condition of employment, EHRA Employees shall be deemed to have granted the University a perpetual non-exclusive, non-transferrable, royalty-free license to use Traditional or Non-Directed Works owned by them for the University’s own education or research use, unless such license will impede scholarly publication or similar activities, or violate a provision of a contract between the EHRA employee and a third-party.

5.7.2 As a condition of enrollment, University students shall be deemed to have granted the University a perpetual non-exclusive, non-transferrable, royalty-free license to use any Student Works created as a part of an academic endeavor at the University, subject to the student’s privacy rights under federal law.

5.8 Creator’s License in Works

Where practicable, and subject to any additional terms or limitations made necessary by the University’s licensing agreements with third parties, the University shall grant a non-exclusive, non-transferrable, royalty-free license to a University-owned work for the creator’s own educational or research use.

5.9 Works Subject to Both Copyright and Patent Protection

Where an invention or creation is subject to protection under both patent law and copyright law, if the University decides to retain title to its patent rights, the inventor/creator shall assign all copyrights to the University.

6. DETERMINATION OF COPYRIGHT OWNERSHIP

6.1 Disclosure

6.1.1 When to Disclose

6.1.1.1 The following works must be disclosed at the time the work is created:

(a) Directed Works created with sponsored or external funds administered by the University;

(b) Works involving the creation of software that may have commercial application;

(c) Works owned by the University where the work will be sold, licensed, displayed, performed, reproduced, or distributed for use outside the University; and

(d) Works intended to be commercialized, as defined in section 2.3, subject to the provisions of subsection 6.1.1.3 below.

6.1.1.2 Except as delineated in section 6.1.1.1 above, generally there is no mandatory disclosure requirement for works created by University employees or students when there is no intent to commercialize the work.

6.1.1.3 If a creator does not make use of any University resources in the course of creating the work and complies with other applicable University policies, including those on Conflict of Interest and Conflict of Commitment (REG 1.25.1), and use of University name (REG 1.25.06), the creator is not required to disclose works intended to be commercialized that result from such activities.

6.1.1.4 If a question exists regarding whether disclosure is required, the creator should contact the Director, Open Knowledge Center, (hereinafter “Director”).

6.1.2 Where to Disclose

Disclosures must be made in writing to the creator’s department head. The department head shall forward the disclosure to the Director, with a copy to the dean of his or her respective college and to the Office of Research Commercialization (“ORC”). The disclosure will not be considered complete until all required information has been provided.

6.2 Determination of Ownership

6.2.1 Upon receipt of the disclosure, the Director shall review the disclosure, confer with the creator and investigate all questions regarding the issue of ownership. Upon making a determination of ownership, the Director shall report in writing to the creator, with a copy to the dean of his or her respective college and to ORC, the Director’s determination of the work’s owner.

6.2.2 If the creator, dean, or ORC disagrees with the Director’s decision, the decision may be appealed by any party as outlined in section 8.3.

7. COMMERCIALIZATION OF A WORK

7.1 Employee or Student-Owned Works

7.1.1 A creator who owns the copyright in his or her works under this copyright policy may commercialize these works, without the authority or permission of the University, so long as the University’s name is not used in connection with the works, other than to identify the creator as an employee or student at the University. Any use of the University’s name in connection with a work created by employee or student must be approved in advance by the University in accordance with the University regulation on use of the University’s Names, Marks, Symbols, Images, and Copyrights (REG 1.25.06).

7.1.2 A University employee or student who owns a work pursuant to this policy may seek assistance from the University in commercializing the work. In that instance, the creator shall report the work to ORC using such forms or procedures as ORC shall establish. If, in its discretion, ORC decides to assist in commercialization of the work, ORC and the creator shall negotiate an agreement governing the commercialization of the work. Any revenue from the commercialization shall be allocated according to subsection 7.2.2 below.

7.1.3 Notes of classroom and laboratory lectures and exercises taken by students shall not be deemed Student Works, may only be used for personal educational purposes, and cannot be used for commercialization by the student generating such notes or by any third party.

7.2 University-Owned Works

7.2.1 The University may, in its sole discretion, use and/or commercialize works that it owns pursuant to this policy.

7.2.2 When a work owned by the University pursuant to this policy is commercialized by ORC (in accordance with its guidelines and procedures), income from such commercialization shall be apportioned according to the following formula:

(a) The revenue that the University actually receives from commercialization of such work will be applied first to reimburse the University for its Direct Costs.

(b) The remaining revenue will be distributed as follows:

(d) 5% to the creator’s College;

(e) 5% to the Department/Unit; and

(f) 50% to the University.

The Provost and the Vice Chancellor for Research and Innovation, or their designees, shall determine the use and allocation of the University’s share of the proceeds of the assigned work.

7.2.3 If a University-owned work is to be published and distributed solely for use by students and faculty at the University, such publication and distribution may be conducted by the University department that employs the creator(s) or that proposes to use the work. In such instance, the department may self-publish the work, or may contract with an outside publisher, subject to the review and approval by the Director. The department shall retain all net revenues related to the work in this circumstance.

7.2.4 ORC may decline commercialization of a University-owned work due to lack of resources, lack of commercial interest, or other reasons ORC deems appropriate. In such case, ORC may assign the work to the creator(s), subject to any rights retained by any sponsor or third party. In addition, the creator shall agree (i) that the University reserves a royalty-free, non-exclusive, irrevocable right to use the work for research and educational purposes; (ii) to allow other academic and non-profit institutions similar use on similar terms; and (iii) to indemnify the University against any liability arising from commercialization.

7.3 Works Subject to Both Copyright and Patent Protection

In cases where an invention or creation is subject to protection under both patent law and copyright law, if the University elects to retain title to its patent rights, the University shall be compensated in accordance with the royalty provision of its Patent and Tangible Research Policy.

8.COPYRIGHT COMMITTEE

8.1 Appointment

The Provost shall appoint a Copyright Committee, consisting of seven (7) members, which shall serve as an advisory body to the Provost and the Director. Membership of the Copyright Committee shall consist of four (4) faculty members, one non-faculty EHRA employee, one SHRA employee, and one graduate student, chosen for their involvement in copyright or other intellectual property matters. The Provost may also appoint non-voting, ex-officio members from offices such as General Counsel, Technology Transfer, Libraries, and Provost.

8.2 Duties

The Copyright Committee may be asked to:

(a) Review, recommend and advise the University on matters relating to this Policy;

(b) Identify areas in which policy development is needed and recommend to the Provost new or revised University policies and guidelines;

(d) Assist in identifying educational needs of faculty and others related to compliance with copyright policies and guidelines and advising on appropriate ways to address those needs; and

(e) Serve as a committee to which a party may appeal the Director’s decisions.

8.3 Appeals

When the creator, dean, or ORC disputes a decision taken in application of this copyright policy by the Director he or she may file a written appeal to the Provost or his or her designee within ten (10) University business days of receiving the Director’s decision. The creator, dean, or ORC shall be entitled to appear before the Copyright Committee and present evidence with respect to any matter specifically involving the application of this copyright policy to them or their work. The Copyright Committee will review the matter and make a recommendation to the Provost.

The Provost will conduct any further investigation deemed necessary and will issue the final University written decision to the employee or student and the Copyright Committee.

9.EXCEPTIONS

9.1 Exceptions to this copyright policy may be approved by the Provost if consistent with UNC Policies and federal and state law.