Administrative Policies

New technologies in teaching and scholarship should be used for the purpose of advancing the basic functions of the university in order to preserve, augment, and transmit knowledge and to foster the abilities of students to learn. In particular, distance learning is a delivery system where students receive instruction via electronic transmission, often through the use of electronically developed course materials. Instruction offered through distance learning is expected to be comparable in quality to instruction offered through traditional methods. The curriculum for instruction offered through distance learning will be approved through the departments in the same manner as curriculum for instruction offered through traditional methods.

Since the demand for distance learning appears to be increasing and the continuing development of electronically developed course materials in various media seems likely, it is important to address the issues raised by the creation, use and distribution of various forms of electronically developed course materials, and to clarify the rights and responsibilities of the parties involved. The purpose of this policy is to protect the rights of faculty, students, and the university, and to encourage the offering of quality distance learning programs.

Issues:

(A) Who owns the copyright in electronically developed course materials and how should such rights be protected?
(B) What are the responsibilities of faculty members to utilize various technologies to meet the needs of currently enrolled students?
(C) Under what circumstances should faculty members prepare electronically developed course materials for use by students not currently enrolled in their classes?
(D) What are the rights of faculty members regarding the continuing use of electronically developed course materials?
(E) Who may receive royalties from the sale or licensing of electronically developed course materials?

General Guidelines:

A. Copyright Ownership: Board of Trustees Policy No.410 recognizes that in most instances faculty members own the copyright in scholarly works created by faculty members. Thus, faculty members generally hold the copyright in electronically developed course materials created on their own initiative. Board Policy No. 410 also recognizes ownership of copyright in works of authorship created pursuant to a contract or as a work-for-hire as residing with the university. Electronically developed course materials created jointly by faculty members and others, whose contributions are works-for-hire, are jointly owned by the faculty member and the university. Any owner of copyright in electronically developed course materials may secure copyright registration. Joint owners may agree to bear responsibility for the enforcement of copyright although there is no requirement to do so.

Ownership of works by students is controlled by copyright law. Students own the copyright in their works. A faculty member must obtain a student's permission to incorporate a student's work in a faculty-authored work.

For the purpose of this policy, the determination of copyright ownership and rights is based on an analysis of effort involved in and support provided for the development of electronically developed course materials. To assist with this analysis, the following descriptive categories are provided:

CATEGORY I:

Description of Support Used: The work is created without any direct support from or through the university and without the use of any university resources beyond those usually and customarily provided by the university. Resources usually and customarily provided by the university include office space, library facilities, ordinary access to computers and other equipment, networks, and routine technical support from the Distance Education Office, or salary.

Ownership and Rights: The work is original and results solely from a faculty member's efforts on his/her own personal time. The faculty member owns the intellectual property of works created in this category, may receive royalties for the work, and retains any distribution rights.

Example #1: A faculty member works with a publishing company to create a web-based course. The publishing company provides 500 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. University- licensed development software available through the department is also used. The course is mounted on a commercial server.

Example #2: A professor in the biology department is approached by the publishing arm of an organization to create a CD containing images of evidence that the professor has photographed in preparing for classes over the years. The professor took the photographs on weekends using his own camera and film, but on the department's copy stand. The organization creates and markets the CD.

CATEGORY II:

Description of Support Used: The work is created with university resources above and beyond those usually and customarily provided by the university. Resources within this category include reassigned time or a summer stipend equivalent to one three-hour course, the use of a graduate assistant, student worker, or other employee for one semester (for no more than 20 hours per week), the use of specialized or unique facilities, equipment, technical support, or other special subventions provided by the university for one semester unless approved as an exception, or additional compensation based on the Guidelines for Extended Study. Use of specialized or unique facilities and equipment, technical support, or other special subventions shall not disrupt the normal course of university business.

Ownership and Rights: The work results from the faculty member's efforts. The faculty member owns the intellectual property and has the right to distribute the work. The faculty member may receive royalties for any distribution made outside of university course delivery. The university has a non-exclusive educational license to use the work as part of course delivery. If the work is used as part of university course delivery, the faculty member who created the course materials will be given the first right of refusal to be the instructor of record either as part of his/her course load or as part of an overload assignment. The university may agree, in its sole discretion, to compensate the faculty member for its use of the work.

Example #1: A faculty member works with a web course publishing company to put a course totally on the web. The university provides funds to purchase time from Channel 6 to videotape two hours of lecture to be streamed as part of the course. In addition, the university checks out to the faculty member one of two digital recording workstations for a period of two weeks. The web course publishing company records the materials provided by the faculty member and creates the web course, and thereafter mounts the course on its server. The faculty member works on the project almost exclusively on his/her own time.

Example #2: A faculty member who teaches a course for the university volunteers to put the course on the web. The university provides thirty hours of focused individual training and/or technical assistance for the faculty member on university courseware. The university also provides assistance in creating a power point presentation to be used as part of the course. The faculty member creates the course on his/her own time. The course is mounted on the university's server.

CATEGORY III: Description of Support Used: The work is created with university resources substantially above and beyond those usually and customarily provided by the university. Resources within this category include release time equivalent to more than one three-hour course (this could include a summer stipend), use of a graduate assistant, student worker, or other employee for more than one semester or for more than 20 hours per week during one semester, use of specialized or unique facilities and equipment, technical support, or other special subventions provided by the university for more than one semester, unless approved as an exception.

Ownership and Rights: The work results from the faculty member's efforts. The faculty member owns the intellectual property and has the right to distribute it and receive royalties for any distribution outside of university course delivery. The university has a non- exclusive educational license to use the work as part of course delivery. The university has a non-exclusive commercial license to market the course outside of the university. If licensed for a commercial purpose, either by the university or the faculty member, the university and the faculty member will each receive a percentage of the royalties, as negotiated. In the case of multiple authors, the authors will share the royalty pro rata based upon participation.

Example #1: A faculty member volunteers to make a departmental course available on the web. The faculty member is provided with a course release in the spring semester and is paid for a course in the summer to develop the product, but also contributes some of his/her own time. The university provides a substantial grant to purchase a digital camera to use in the project and a .5 FTE web developer housed in the department for a semester for use by the faculty member. Personnel from the university's Division of Academic Outreach & Extended Programs (AOEP) and Channel 6 record speakers for the class and digitize audio and video. The course is mounted on the university's server.

Example #2: A graduate school offers a degree by taping courses and allowing employees of two businesses to download the courses to view on their own schedules. Three faculty members from the school will rotate grading and answering questions for each course. A faculty member volunteers to offer the first course. During the next year, the faculty member is given release time each semester and is paid for two courses in the summer. The university funds the production times through Channel 6 for production of the tapes. Information Technology contributes significant hours in digitizing the tapes. The faculty member spends much of his/her own time designing the course for television delivery. The university mounts the course on its server.

CATEGORY IV:

Description of Support Used: The university provides all of the resources for the work.

Ownership and Rights: An employee of the university is contracted to develop a specific product as a work-for-hire. The work is carried out as a part of the faculty member's assigned duties. The university owns the work, and has exclusive educational and commercial ownership and license authority. The faculty member is not entitled to payment of royalties, except as agreed upon by the university.

Example #1: The chair of an academic department assigns a faculty member to develop 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 department. The faculty member is given release time for the fall and spring semesters and is paid full salary. All of the design and production work is done during work hours. The faculty member is assigned a .5 FTE research assistant for the academic year. The Division of AOEP and Channel 6 support the design and production of the videotapes.

CATEGORY V:

Ownership and Rights: The faculty member is using electronically developed course materials created as part of his/her teaching duties at the university. Ownership will be determined by categories one through four. There will generally be no extra compensation beyond the normal teaching compensation for use of the electronically developed course materials except as agreed upon by the university in its sole discretion.

Example #1: See Category II, Example I above. In this case, the faculty member might offer the course at the university. The university would pay the previously negotiated fee to a web course publishing company 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.

Example #2: See Category III, Example 2 above. In this case, the faculty member could 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.

A. Administration: The Division of AOEP and the Distance Education/Extended Learning Advisory Committee, chaired by the dean of the Division of AOEP, shall be responsible for the administration of this policy, applying the policy equitably, and ensuring appropriate agreements are completed prior to mounting web-based courses for full delivery on the university's server. The university's legal counsel will assist with issues relevant to this policy, general copyright law, and attendant contractual agreements.

B. Prior Agreement: A faculty member should meet with the department chair and dean prior to creating electronically developed course materials for distance learning in order to reach an agreement on ownership, institutional resource commitment, revenue, and the resultant category classification. A copy of the Agreement will be forwarded to the dean of the Division of AOEP for distribution to the Distance Education/Extended Learning Advisory Committee for review and assurance that the policy is being applied in an equitable manner. The dean of the Division of AOEP shall inform the provost of any inequitable application of the policy, as observed by the Distance Education/Extended Learning Advisory Committee and of its recommendation to cure the inequities, and it shall be the responsibility of the provost to resolve the issue with the faculty member. In the event the provost and faculty member are unable to reach a satisfactory resolution, the matter will be forwarded to the Faculty Grievance Council in accordance with the requirements set forth in the Faculty Handbook. It is understood that in some circumstances the original category classification may change based upon a modification in university support for the project. In such cases, written agreements should be entered into between the university and the faculty member to resolve any issues of ownership.

C. 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 that make class materials readily available. For example, if recordings are needed by remote or disabled students, they should be created in the ordinary course of teaching and made available under reasonable circumstances. Electronically published course materials 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. Handouts and other teaching materials created by the faculty member to support such electronically published course materials are also the property and responsibility of the faculty member who creates or authorizes them. Faculty members should be willing to utilize technologies appropriate to the circumstances to make course materials reasonably available to currently registered students. Faculty members may dispose of such materials in the manner they choose at the end of each semester and in accordance with the schedule maintained by the Office of Internal Audit. If the materials are maintained on the university's server, the faculty member may request the Distance Education Office to delete the materials at the end of each semester.

D. Course Development: Faculty members may receive, through usual university processes, reassigned time or extra compensation for duties performed in the best interests of the university's academic program, including electronically developed course materials.

E. Revision Rights: Faculty members should generally retain the right to update, edit or otherwise revise electronically developed course materials that become out of date, or, in certain circumstances, should place a time limit upon the use of electronically developed course materials that are particularly time sensitive, regardless of who owns copyright in these materials. These rights and limitations should be negotiated by the faculty member and the department chair in advance of the creation of electronically developed course materials and reduced to writing. The Guidelines for Extended Study shall govern the development and revision of extended study courses. Absent a written agreement, a faculty member will have the right to modify the work on an annual basis in order to maintain academic standards. If the university believes a modification is necessary based upon university guidelines and/or consultation with faculty within the discipline, and no timely modification is made; or if the modification is made, and in the university's opinion, based upon university guidelines and/or consultation with faculty in the discipline, it does not meet academic standards, the university may refuse to market the product or may select another person to modify the materials.

F. Revenue: Faculty members shall receive all revenue that may accrue from the commercialization of electronically developed course materials created on their own initiative. Otherwise, the university retains all revenue that may accrue from the commercialization of electronically developed course materials created by faculty members pursuant to an agreement or as a work-for-hire, including electronically published course materials.

Copyright law permits joint owners to pursue commercialization either jointly or separately; however, an accounting is required. In instances of joint ownership between faculty members where the university also retains rights to revenue, the parties shall negotiate an allocation. Net fiscal year revenue derived from commercialization of intellectual property covered by this policy shall be shared as follows: 40% to the originator, 20% to the originator's department or immediate administrative unit, 20% to the dean's office of the originator's college, and 20% to the Division of AOEP. Where more than one individual is considered to be the originator, such persons will determine among themselves the individual share of the 40% each will receive. In the event an agreement cannot be reached, the determination shall be made by the Distance Education/Extended Learning Advisory Committee. Such determination by the Advisory Committee shall be final.

This policy shall not change income-sharing agreements entered into prior to the adoption of this policy. In certain university units, because of conditions of employment and the nature of work assignments, and the fact that units often assume continuing responsibilities for maintenance and periodic revision of the property, an alternate distribution of net income to the originator may be appropriate. Units wherein these situations may occur should propose appropriate modifications to the distribution scale described in this section. Upon approval by the Distance Education/Extended Learning Advisory Committee, such modifications shall be made as deemed appropriate. The determination of the Distance Education/Extended Learning Advisory Committee shall be final. Such modifications may not increase the combined shares of the originator and the department, as specified, except in unusual and very specific circumstances. The Division of AOEP reserves the right to suspend the distribution of income where there is reason to believe that substantial deductible costs will be incurred in the future. The originator, the department, and the dean of the college shall be informed of such decisions.

The originator's rights to share in net income as stated above, but not including shares to the other named entities, shall remain with the individual or pass to the individual's heirs and assigns for so long as net income is derived from the property.

An annual fiscal year detailed accounting of income and costs shall be made available to the originator, the originator's department, and the dean of the originator's college by the Division of AOEP.

Net revenue is defined as gross royalties, license fees, or other such payments received by the Division of AOEP on behalf of the originator and the university less necessary direct costs, e.g., development or production, licensing, copyright enforcement, necessary travel, auditing fees, sponsor shares, marketing, packaging and handling, mailing, or courier costs. The phrase "gross royalties, license fees, or other such payments" means agreed upon payments specified in a license or other commercialization agreement usually expressed as a percentage of sales, a fixed dollar amount per unit produced or sold, or a total fixed dollar amount for production in return for the right to use, copy, reproduce, make, or sell an item of intellectual property or product based on such property.

G. Contributed Materials: Liabilities may be incurred with respect to the inclusion of materials in electronically published courses other than materials created by the faculty member, and inclusion of voices or images of persons in electronically developed course materials, including audience members and guest lecturers. It is the policy of the university that all faculty members comply with the law, including copyright and privacy laws. It is the responsibility of the faculty member to obtain all permissions and releases necessary to avoid infringing copyright or invading the personal rights of others.

H. Use of University's Name: Faculty members who create electronically developed course materials identified in categories I, II, and III above shall not represent to outside entities that he/she acts as an agent or representative of the university with respect to the creation of these materials.

I. Protecting the Work: Faculty members will determine whether to register the copyright and take such steps to protect works they own. The university will determine whether to register the copyright and will be responsible for the enforcement of works it owns. Any one of the authors of a joint work may register and enforce copyright in the names of all owners, with an accounting.

J. University Resources Usually and Customarily Provided: When determining ownership and license rights in electronically developed course materials, "university resources usually and customarily provided" includes such support as office space, library facilities, ordinary access to computers and other equipment, networks, routine technical support from the Distance Education Office, or salary. In general, it does not include the use of students or employees as support staff to develop the materials, or substantial use of specialized or unique facilities and equipment, or other special subventions provided by the university, unless approved as an exception.

K. Retention of Non-exclusive License: Except for a work that is totally faculty generated as reflected in Category I, the university shall retain a non-exclusive educational license to reproduce and use the electronically published course materials in teaching university classes on or off campus. Since intellectual property designated as a work-for- hire in Category IV is owned in all respects by the university, there are no comparable restrictions on the use of these materials whether on or off campus.

L. Conflict of Interest: Faculty members may not create courses, substantial parts of courses or courseware for, or accept teaching assignments from, either a non-profit institution or a commercial enterprise, unless specifically authorized in advance by the provost on the recommendation of the appropriate dean. This policy applies equally to courses taught in person, or via the Internet, or other method of electronic transmittal. This policy is not intended to prevent faculty members from giving guest lectures at another institution or engaging in similar activities. Faculty should be sensitive to the fact that the distinction between occasional lectures, which are a part of academic life, and a teaching assignment for another university, which requires prior approval, is not always clear-cut. When there is a question as to whether an outside engagement falls within the range of allowable activities, a faculty member should first consult with the appropriate dean. The responsibility for recognizing and avoiding conflicts of interest rests primarily with the faculty member.

Comments and suggestions about Administrative Policies are appreciated.
Administrative Policy contents comments to: Susan Lilly, SusanL@uca.edu