Board Policy 210.2
- Preamble
- Issues Raised
- General Guidelines
- Specific Categories Assigning Ownership and
Compensation
Copyright and Distance Learning
I. Preamble
This policy addresses the use of Technology Enhanced
Course Materials (TECM) to effectuate distance learning at the University
of Arkansas. Distance learning for purposes of this policy is two-way
communication between a teacher and student separated by a geographical
distance or time using technology for the purpose of facilitating and
supporting the education process. It is an educational process in which
most of the instruction occurs when the student and instructor are
not in the same place. Instruction may be delivered and received at
the same time (synchronous) or at different times (asynchronous). Distance
learning may employ printed materials or audio, video or computer technologies.
TECM are materials utilizing electronic transmissions to accomplish
such an activity. The objective of this policy is to protect the copyright
rights of both the faculty member and the University in TECM and to
encourage the offering of quality distance learning programs. Distance
learning programs that do not employ the use of TECM are not covered
by this policy.
TECM have been a part of the curriculum at the
University of Arkansas but, for a variety of reasons, there are still
many questions about the rights and responsibilities of the University
and its faculty members with respect to these methods of instruction.
Since the demand for distance learning appears to be increasing and
the continuing development of TECM in various media seems likely, it
is important to address the issues raised by the creation, use and
distribution of various forms of TECM and clarify the rights and responsibilities
of each of the parties involved. This policy is a supplement to Board
Policy 210.1, Patent and Copyright Policy, and only addresses copyright
in the context of distance learning and the use of TECM to facilitate
such education. To the extent this policy conflicts with Board Policy
210.1 on issues involving distance learning and TECM, this policy prevails
with the exception of cases in which TECM are also protectable by patent
law.
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II. Issues Raised
Who owns the copyright in TECM and how should
such rights be protected?
- What are the responsibilities of faculty members
to utilize various technologies to meet the needs of their currently
enrolled students?
- Under what circumstances should faculty members
be expected to prepare TECM for use by students not currently enrolled
in their classes?
- What are the rights of faculty members with
regard to the continuing use of TECM?
- Who may receive Revenues from the sale or licensing
of TECM?
- What procedures should be followed to limit
liability for infringement of copyright or invasion of privacy or
publicity if TECM contains material that belongs to someone other
than the University or faculty creator(s) or contains the image or
likeness of others.
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III. General
Guidelines
- Copyright Ownership. Board Policy 210.1recognizes
that in most instances faculty members own the copyright in scholarly
works created by the faculty members. Faculty members thus normally
hold the copyright in TECM they create on their own initiative. Board
Policy 210.1 also recognizes ownership of copyright in works of authorship
created under contract or as works made for hire as residing with
the University ("University Works"). TECM created jointly
by faculty authors and by those whose contributions would be works
made for hire will be jointly owned by the faculty authors and the
University. Specific ownership rights are addressed in Section IV
of this policy.
- Faculty Responsibility to Currently Enrolled Students. Faculty
members have a responsibility to meet the reasonable needs of their
currently enrolled students, including those needs best addressed
by the use of technologies to make class materials readily available.
TECM such as tape recordings and videotapes created in the ordinary
course of instruction and not intended for use beyond the end of
the current semester or by students other than those registered for
the class are the property and responsibility of the faculty member
who creates or authorizes them. Faculty should be willing to utilize
technologies appropriate to the circumstances to make their course
materials reasonably available to their currently registered students.
Faculty may dispose of such materials in whatever manner they choose
at the end of each semester and in accordance with a campus or unit
records retention policy.
- Course Development. Faculty may receive release time (including
off-campus duty assignments) for duties performed in the best interests
of the University's instructional program, including the development
of TECM. The grant of release time does not automatically determine
the appropriate category in which to place the work. Normally, such
a grant would imply at least a minimal allocation of University resources.
- Revision Rights. Faculty members should normally retain the right
to update, edit or otherwise revise TECM that become out of date,
or, in certain circumstances, should place a time limit upon the
use of TECM that are particularly time sensitive, regardless of who
owns copyright in the TECM. These rights and limitations may be negotiated
in advance of the creation of the TECM and may be reduced to writing.
Absent a written agreement, each faculty member will have the right
and moral obligation to revise the TECM on an annual basis in order
to maintain academic standards. If the University believes a revision
is necessary and no timely revision is made or if the revision is
made and, in the University's opinion, it does not meet academic
standards, the University may refuse to market the product or the
University may employ another person to update the TECM.
- Revenues. In accordance with Board Policy 210.1, faculty members
shall receive all Revenues (as defined in Board Policy 210.1and excluding
tuition or fees) that may accrue from the commercialization of TECM
they create on their own initiative. On the other hand, the University
retains the right to receive all Revenues from the commercialization
of TECM created by faculty members pursuant to contract or as a work
made for hire. However, the University may share such Revenues with
the creators according to Section I.F of Board Policy 210.1 or on
other terms as set by the University in its sole discretion. Copyright
law permits joint owners to pursue commercialization either jointly
or separately but with an accounting to the other joint owner for
Revenues received. Other circumstances may require review on a case-by-case
basis (such as the creation of TECM initiated by a faculty member
but using University resources over and above those usually and customarily
provided.) Absent a contract specifying to the contrary, specific
division of Revenues is addressed in Section IV below. In instances
of joint ownership between faculty members where the University also
retains rights to Revenues, the faculty members shall determine by
written document the division of Revenues. Absent a written document
of division of Revenues, the faculty members shall divide their share
pro rata based on participation.
- Contributed Materials. Liabilities may be incurred with respect
to the inclusion of materials in TECM other than materials created
by the author of the TECM, including copyrighted music and sounds,
and the inclusion of voices or images of persons in the TECM, including
audience members and guest lecturers. It is the policy of University
that all faculty and staff comply with the law, including copyright
and privacy laws; therefore, it is the responsibility of the creator
of TECM (normally the faculty member) to obtain all permissions and
releases necessary to avoid infringing copyright or invading the
personal rights of others.
- Protecting TECM. The University will determine whether to register
the copyright and will be responsible for enforcement of TECM it
owns. Faculty members will make such decisions and take such steps
to protect TECM they own. Any one of the authors of a joint work
may register and enforce the copyright in the names of all owners,
with accounting. If one of the joint authors or owners is the University,
only persons authorized by the University shall file for copyright
registrations in the name of the University.
- University Resources Usually and Customarily Provided. When determining
ownership and license rights in TECM, "university resources
usually and customarily provided" includes such support as office
space, library facilities, ordinary access to computers and networks
or salary. In general, it does not include use of students or employees
as support staff to develop the TECM, or substantial use of specialized
or unique facilities and equipment, or other special subventions
provided by the University unless approved as an exception.
- Retention of Nonexclusive License. Except in Category I below,
the University shall retain, at a minimum, a perpetual non-exclusive,
royalty-free license to reproduce and use TECM in its internally
administered programs of teaching, research and public service, including
distance learning.
- Conflict of Interest and Commitment. The activities of faculty
and staff under this policy shall be consistent with the provisions
of Board Policy 330.1, Employee and Contractor Conflict of Interest,
and Board Policy 450.1, Outside Employment of Faculty and Administrative
Staff Members for Compensation, and campus policies on conflict of
interest and commitment.
- Administration. The chief executive officer of the campus or unit
shall delegate to a person or a committee the responsibility of administering
this policy and applying the policy equitably across the campus or
unit. If , however, such a delegation is not made, then the Campus
Patent and Copyright Committee shall be so responsible. The faculty
member should first meet with his/her department chair and dean to
determine which category the TECM will be assigned and the ownership,
institutional resource commitment and the sharing of any Revenues.
A copy of the agreement will be forwarded to the designated committee
or administrator for review and assurance that the policy is being
applied in an equitable manner. The chair of the committee (or designated
administrator) shall inform the dean and department chair of any
inequitable applications of the policy and it shall be the responsibility
of the dean and department chair to resolve the issue with the faculty
member. If any dispute arises between the faculty member and department
chair and dean or other appropriate or designated administrator,
they shall initially attempt to resolve the disputed issue. Issues
that cannot be resolved by the parties shall be decided by the chief
executive officer of the campus or unit whose decision on such issues
shall be final.
- University-wide Committee. The President of the University shall
appoint a University-wide committee to advise the President on issues
relating to distance learning, including copyright matters. The committee
shall be composed of representatives from each campus and unit of
the University and any others who the President in his or her sole
iscretion determines is appropriate for membership on the committee.
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IV. Specific Categories
Assigning Ownership and Compensation
Faculty members should meet with their Department
Chair and Dean or other appropriate or designated administrator prior
to creating TECM for distance learning in order to reach an agreement
as to the appropriate category classification. Also, during the creation
and development of TECM, continuing interaction among the parties is
strongly encouraged. It is understood that in some circumstances the
initial category classification may change based upon a modification
in University support for the project. Written contracts should be
entered into between the University and the faculty member to resolve
any issues of ownership and compensation. In addition, each campus
or unit has the discretion to vary by written contract the ownership
of and compensation for any TECM despite the category classification
of the TECM.
Category I - Totally Faculty or Staff Generated
Description of Individual and University Contribution:
The TECM resulted from an individual's efforts
on his own personal time without any direct support from or through
the University and without the use of any University resources beyond
those usually and customarily provided.
Examples:
- A faculty member in the School of Social and
Behavioral Sciences at UAM works with a publishing company to create
a Web-based course. The publishing company provides 700 hours of
instructional design and production support and the course is mounted
on the company's server. All of the work is done on the faculty member's
own time, but some of the development is done on weekends using the
faculty member's office computer. Development software licensed by
UAM that is available throughout the department is also used. The
course is mounted on a commercial server.
- A professor at one of the law schools is approached
by the publishing arm of a learned society to create a CD containing
2,000 images of evidence that this professor has photographed in
preparing for classes over the years. The professor took the photographs
on weekends using own camera and film but on the department's copystand.
The learned society creates and markets the CD.
Ownership and Compensation:
The individual owns the copyright and is entitled
to receive all Revenues from the commercialization of the TECM, subject
to compliance with Section III.J of this policy on Conflict of Interest
and Commitment.
Category II- Minimal University Resources
Description of Individual and University Contribution:
The work resulted from the individual's efforts
with minimal resources above and beyond those usually and customarily
provided.
Examples:
- A faculty member at UAMS works with Digital
Inc., a Web course publishing company, to put the course, Serving
an Aging Population, totally on the Web. The University provides
funds to purchase time from UAMS's Media Services to videotape two
hours of lecture to be streamed as part of the course. In addition,
the UAMS Library checks out to the faculty member one of two digital
recording workstations for a period of two weeks. Digital Inc. spends
over 300 hours recording materials provided by the faculty member
and creating the Web course, and mounts the course on their server.
The faculty member works on the project almost exclusively on his/her
own time.
- An adjunct faculty member at UAPB who teaches
Accounting Principles for Non-Profit Agencies for UAPB volunteers
to put half of the course on the Web. UAPB provides 30 hours of training
on WebCT, the Web platform utilized. UAPB also provides twenty hours
of assistance in creating a PowerPoint Presentation to be used as
part of the course. The adjunct faculty member spends 200 hours creating
the course on his/her own time. The course is mounted on the University's
server.
Ownership and Compensation:
The individual owns the copyright and has the
right to distribute the TECM and receive the Revenues for any distribution
outside the University course delivery, subject to compliance with
Section III.J of this policy. The University has a non-exclusive, royalty-free
license to use the work as part of the University course delivery.
The University may agree, in its sole discretion, to compensate the
faculty member for its use of the TECM.
Category III- Substantial University Resources Are
Provided
Description of Individual and University Contribution:
The work resulted from the individual's efforts
with use of University resources above and beyond those usually and
customarily provided.
Examples:
- A faculty member at UA-Fayetteville volunteers
to make her department's Literature for Children course totally available
on the Web. The faculty member is provided with release time in the
Spring Semester and paid for a course in the Summer to develop the
product but also contribute some of her own time. The University
provides a substantial grant to purchase a digital camera to use
in the project or a .5 FTE Web developer housed in the department
for a semester to work with the faculty member. Personnel from Continuing
Education record speakers for the class and digitize audio and video,
totaling over 300 clock hours of production and support services.
The course is mounted on the University's server.
- UALR's MBA Program decides to offer the degree
by taping courses and allowing employees of two corporations to download
the courses to view on their own schedules. Three faculty from the
EMBA Program will rotate grading and answering questions for each
course. A faculty member who teaches Human Resource Management volunteers
to offer the first course. During the next year, this faculty member
is given release time each semester and paid for two courses in the
Summer. UALR funds production time in the Radio, Television and Film
Department for the production of the tapes. Computing Services contributes
significant hours in digitizing the tapes. The faculty member spends
60 hours over the year of their own time designing the course for
television delivery. The University mounts the course on its server.
Ownership and Compensation:
The individual and the University may be joint
owners of the copyright under Example 1 and therefore, absent an agreement,
each has the right to distribute it and receive Revenues for any distribution
outside the University course delivery, subject to an accounting of
Revenues to the other joint owner and subject to compliance by the
individual faculty member with Section III.J of this policy. At the
minimum, the University has a non-exclusive, royalty-free license to
use the work as part of University course delivery and a non-exclusive
commercial license to market the course outside the University, subject
to an accounting of Revenues to the faculty member.
Category IV- Work Made For Hire - University Assigns
Duty to Faculty or Staff Member to Develop a Work
Description of Individual and
University Contribution:
An employee of the University was contracted to
develop a specific product. The University provided resources for the
work above and beyond those usually and customarily provided. The work
was carried out totally as a part of the faculty or staff member's
assigned time.
Example:
- The Dean of the College of Education at UALR
assigns a faculty member to a course that will be videotaped and
broadcast the next year to sites in five school districts as part
of a new Master's Program offered by the college. The faculty member
is given release time for the Fall and Spring Semester and is paid
a task payment. The faculty member is assigned a .5 FTE research
assistant for the academic year. The Radio, Television and Film Department
contributes 250 hours in the design and production of the videotapes.
Ownership and Compensation:
The University owns the copyright and has exclusive
educational and commercial ownership and licensing rights. The faculty
or staff member is not entitled to a share of the Revenues except as
agreed upon by the University in its sole discretion.
Category V- Faculty Member Uses Own Work as Part
of Course Offering at University
Description of Individual and University Contribution:
The faculty member is using TECM that he/she created
as part of his/her teaching duties at the University.
Examples:
- See Category II, Example 1 above. In this case,
the faculty member might offer the course at the University. The
University would pay the previously negotiated fee to Digital, Inc.
for access to the course materials, but this payment would not include
compensation to the faculty member beyond the standard compensation
for teaching the course.
- See Category III, Example 2 above. In this
case, the faculty member might teach the course to students in the
program. There would be no compensation to the faculty member beyond
the standard compensation for teaching the course.
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Ownership and Compensation:
Ownership will be determined by categories one
through four.
October 2, 2001 (Revised)
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