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Initially
approved June 1, 2001
Policy
Statement #113
Copyright
Policy
I. Introduction.
II. Scope and Coverage.
III. Creation and Duties of the Faculty Copyright Education
and Policy Committee and the University Copyright Dispute
Resolution Panels; Consultation to the Chancellor.
A.
Faculty Copyright Education and Policy Committee.
B. University Copyright Dispute
Resolution Panels
C. Consultation to the Chancellor.
IV. Use of Copyrighted Works by
Faculty, Staff and Students
A. Infringement.
B. Fair Use.
V. Copyright Ownership.
A.
Works Created by Faculty or EPA Non-Faculty Employees.
B. Works Created by SPA Staff
Employees Considered Works Made for Hire.
C. Works by Independent Contractors.
D. Student Works.
VI. Works Subject to Both Copyright
and Patent Protection.
VII. Dispute Resolution.
I. Introduction.
The
University of North Carolina at Charlotte is dedicated
to its mission of instruction, research, and service.
It is the policy of this University that its faculty,
staff, and students carry out their scholarly work in
an open and free atmosphere, and that consistent with
applicable laws and policy they publish the results
of such work without restraint.
To those ends, and in order to effectuate provisions
of the Copyright
Use and Ownership Policy of the University of North
Carolina, this Copyright Policy is adopted.
II. Scope and Coverage.
This
Policy applies to the faculty, staff, and students of
the University. Compliance
with the terms of this Policy is a condition of employment
for University faculty and staff, and of enrollment
for University students.
This Policy is supplemental to the Copyright
Use and Ownership Policy of the University of North
Carolina, and is subject to any applicable laws
and regulations and to specific provisions in grants
or contracts that govern rights in copyrighted works
created in connection with sponsored research.
III. Creation and Duties of the Faculty Copyright
Education and Policy Committee and the University Copyright
Dispute Resolution Panels; Consultation to the Chancellor.
A.
Faculty
Copyright Education and Policy Committee.
(1) Composition.
The
Chancellor and the President of the Faculty shall jointly
appoint a standing committee of the faculty, designated
as the Faculty Copyright Education and Policy Committee,
to serve as the faculty’s consultative committee to
the Chancellor on copyright education and policy and
to carry out the duties in Section
III(A)(2) below.
(2) Duties.
The
Faculty Copyright Education and Policy Committee shall
have such responsibilities as the Chancellor may specify,
including but not limited to the following duties:
(a)
Assistance in the provision of resources to
and education of faculty, staff and students about the
Fair Use Doctrine and other copyright matters.
(b)
Advising the Chancellor regarding implementation
of the Copyright
Use and Ownership Policy of the University of North
Carolina and this Policy, including proposal
of such amendments to this Policy as the Committee may
consider necessary.
B. University Copyright Dispute Resolution
Panels
(1) Composition.
The
University Copyright Dispute Resolution Panels shall
be authorized by the Chancellor on an ad hoc, case-by-case
basis, and shall be composed of current full-time members
of the UNC Charlotte faculty or staff as follows:
(a)
One member of the Panel shall be selected by
each party involved in the copyright dispute.
(b)
An additional member of the Panel shall be selected
by the members of the Panel selected under III(B)(1)(a)
above and shall be deemed the Chair of the Panel.
(2) Duties.
Under
procedures specified in Section VII
below, the University Copyright Dispute Resolution Panels
shall have the duties of hearing and resolving:
(a)
Disputes between or among members of the faculty or
staff involving copyright ownership;
(b)
Disputes between or among members of the faculty or
staff and a department chair or director of an administrative
unit involving determinations of exceptional use of
University resources or Directed Works (as defined in
Section V(A)(3)(a) below); and
(c)
Such other disputes related to copyright matters as
may be authorized by the Chancellor.
C.
Consultation
to the Chancellor.
In
addition to the Faculty Copyright Education and Policy
Committee serving as the consultative committee to the
Chancellor as set forth in Section III(A)
above, the UNC Charlotte Staff Organization shall serve
as the consultative group to the Chancellor on copyright
education and policy as they relate to SPA staff and
EPA non-faculty employees.
IV. Use of Copyrighted Works by Faculty, Staff
and Students
A.
Infringement.
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 copyrighted
work without permission of the copyright owner.
B.
Fair Use.
(1) Permissible Use.
Under
United States Copyright law, the “fair use doctrine”
allows certain specified uses of a copyrighted work
without requiring prior permission of the copyright
owner under certain circumstances.
As stated in the Copyright
Use and Ownership Policy of the University of North
Carolina, the University supports “the responsible,
good faith exercise of full fair use rights, as codified
in 17 U.S.C. § 107,
by faculty, librarians, and staff in furtherance of
their teaching, research and service activities.”
(2)
Elements of Fair Use; Good Faith Consideration Required.
University
faculty or staff who propose to make fair use of a copyrighted
work must consider in advance the applicability of four
statutory factors to be weighed in making a fair use
analysis. These
factors are:
(a)
The purpose and character of the use, including whether
the use is of a commercial nature or is for nonprofit
educational purposes;
(b)
The nature of the copyrighted work;
(c)
The amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(d)
The effect of the use upon the potential market for
or value of the copyrighted work.
University
faculty and staff must apply these four factors and
make a good faith reasonable fair use determination
before using a copyrighted work without permission.
(3)
Assistance in Making Fair Use Determinations.
The
Faculty Copyright Education and Policy Committee, together
with the Office of the General Counsel, shall issue
and as necessary revise guidelines to assist University
faculty, staff, and students in making fair use evaluations.
Faculty, staff or students who require assistance
with fair use questions related to their University
work should consult the Office of the General Counsel.
Upon request, the Office of the General Counsel
will make a determination whether a specific proposed
use constitutes fair use, and the University will defend
such determinations.
V.
Copyright Ownership.
Ownership
of copyright in copyrighted works by faculty, staff,
or students shall depend on the category of the work
in question and on the status of its creator(s).
A.
Works Created by Faculty or EPA Non-Faculty
Employees.
(1) Traditional Works or Non-Directed Works.
(a)
Definition.
Traditional
Works or Non-Directed Works are pedagogical, scholarly,
literary, or aesthetic works by faculty or EPA non-faculty
employees resulting from non-directed effort.
(b)
Ownership.
(i)
The creator of such a work shall own the work unless
it is a Traditional Work or Non-Directed Work Involving
Exceptional Use of University Resources, a Directed
Work, a Sponsored or Externally Contracted Work
requiring University ownership of copyright, or
a Work for Hire (as those terms are defined below).
As a condition of employment, faculty and
EPA non-faculty creators of a Traditional or Non-Directed
Work shall be deemed to have granted the University
a perpetual, non-exclusive, non-transferable, royalty-free
license to use the work for the University’s own
non-commercial educational or research use. For
the purposes of this Policy, “educational” use means
use for the purpose of offering regular academic
course credit through a UNC Charlotte academic department.
Such license includes the right to make derivative
works. The original or a derivative work will credit
the creator as author unless the creator requests
that he or she not be credited upon timely written
notice to the Chancellor.
(ii)
Traditional Works or Non-Directed Works for which
authorship cannot be attributed to one or a discrete
number of authors but instead result from simultaneous/sequential
contributions over time by multiple authors who
are faculty or EPA non-faculty employees shall be
owned by the University.
(c)
Commercialization; assignment to University.
Where a University faculty or EPA non-faculty
creator of a Traditional or Non-Directed Work desires
assistance from the University in commercializing
the work, the creator shall report the work to the
Office of Technology Transfer using such forms and
procedures as that Office shall establish, and if
in its discretion it agrees to accept the work for
commercialization, the Office of Technology Transfer
shall be responsible for commercializing the work.
If the University is to be involved in commercializing
a Traditional or Non-Directed Work, the creator shall
assign the work to the University under an Assignment
Agreement, which shall include provisions outlining
the commercialization responsibilities of the University
and a mechanism for the sharing of commercial proceeds
with the creator.
(d)
Allocation of Commercialization proceeds.
Where
the Office of Technology Transfer agrees to accept
the work for commercialization, the creator’s share
of proceeds shall be negotiated between the creator
and the Office of Technology Transfer on a case-by-case
basis, taking into account the nature of the work
and the creator’s contribution, the prospective market
conditions for the work, the anticipated level of
effort and resources required for commercialization,
and other commercially reasonable factors. Unless otherwise directed by the Chancellor
or a designee, two-thirds of the remaining proceeds
from commercialization of the work shall be allocated
to the creator’s department, and one-third to the
Office of Technology Transfer.
(2)
Traditional Works or Non-Directed Works
Involving Exceptional Use of University Resources.
(a)
Definition
Exceptional
use of University resources occurs when the University
provides support for the creation of the work with
resources of a degree or nature not routinely made
available to faculty or EPA non-faculty employees
in a given academic department or administrative unit.
Use of University resources is presumed not
to be exceptional unless a department chair or director
of an administrative unit informs the faculty member
in writing before such resources are allocated that
such use is exceptional. If the creator of the work
disagrees with the determination that the use of University
resources is exceptional, he or she may submit a request
to the Chancellor that the matter be referred to a
Copyright Dispute Resolution Panel as set forth in
Section VII below. It shall be
the obligation of the department chair or head of
an administrative unit to establish that a proposed
use of resources is exceptional by reference to the
practices of the department or unit.
(b) Ownership.
Traditional
Works or Non-Directed Works Involving Exceptional
Use of University Resources shall be owned by the
University.
(c) Release to Creator.
With
agreement of the department chair or director of the
administrative unit as defined above, the Director
of the Office of Technology Transfer may release or
transfer the University’s rights in a Traditional
Work or Non-Directed Work created through exceptional
use of University resources to the work’s creator
through an appropriate written agreement.
(d)
Release Agreement.
Any
agreement for release to a creator of a Traditional
Work or Non-Directed Work created through exceptional
use of University resources shall include provisions
that:
(i)
The University shall have a perpetual, non-exclusive,
non-transferable, royalty-free license to use the
work for the University’s own non-commercial educational
or research use, including the right to make derivative
works, provided that “educational” use means use
for the purpose of offering regular academic course
credit through a UNC Charlotte academic department,
and that the original or a derivative work will
credit the creator as author unless the creator
requests that he or she not be credited upon timely
written notice to the Chancellor; and
(ii)
Upon commercialization of the work either (a) the
creator shall reimburse the University for the exceptional
resources provided the creator, or (b) the creator
shall share income from such commercialization with
the University, in an amount to be negotiated between
the creator and the Office of Technology Transfer.
Proceeds from commercialization shall be
allocated as provided in Section
V(A)(1)(d) above.
(e)
Selection of release options; appeal.
The
Director of the Office of Technology Transfer, in
consultation with the creator’s department chair or
unit head, shall determine which of the options available
under Section V(A)(2)(d)(ii) above to be selected in conjunction
with the release of such a work to its creator. Disputes regarding whether a work has been created through exceptional
use of University resources shall constitute disputes
regarding ownership to be resolved under the dispute
resolution procedures specified below.
However, decisions regarding financial terms
made under Section V(A)(2)(d)(ii)
above shall not be subject to appeal under this Policy. In the event that the creator and the University are unable to
reach agreement regarding such financial terms, ownership
of the work at issue shall remain with the University.
(f)
Joint ownership.
In
addition to the foregoing provisions for release to
the creator of a Traditional or Non-Directed Work
involving exceptional use of University resources,
the University through the Office of Technology Transfer
in consultation with the creator’s chair, and the
creator may alternatively negotiate for joint ownership
of the work. In such case either party will be allowed to
use and exploit the work without accounting to the
other, unless otherwise agreed in writing.
(3)
Directed Works.
(a)
Definition.
Directed
Works are works that are specifically funded or created
at the direction of the University.
For a work to be considered a Directed Work
under this Policy, a department chair or head of an
administrative unit must inform the faculty or staff
member in writing in advance of its creation that
the work is a “Directed Work.” Such funding need not
constitute exceptional use of University resources
in order for the work to be considered a Directed
Work. Directed Works shall also include works created
by faculty, staff, or students in an institute, center,
department, or other unit that, with approval of the
Chancellor, has adopted rules providing that copyright
in materials prepared by such faculty, staff, or students
in the course of their professional work or in the
course of study with that unit vests in the University
and not in its creator.
(b)
Ownership.
The University shall own copyright in Directed Works.
Where practicable in the estimation of the
creator’s chair, and subject to any additional terms
or limitations made necessary by University licensing
agreements, the creator shall be granted a perpetual,
non-exclusive, non-transferable, royalty-free license
to the work for the creator’s own non-commercial educational
or research use.
(c)
Release.
The University may release or transfer ownership in
a Directed Work to the creator.
(d)
Release Agreement.
Any
agreement for release to a creator of a Directed Work
shall include provisions that:
(i)
The University shall have a perpetual, non-exclusive,
non-transferable, royalty-free license to use the
work for the University’s own non-commercial educational
or research use, including the right to make derivative
works, provided that “educational” use means use
for the purpose of offering regular academic course
credit through a UNC Charlotte academic department,
and that the original or a derivative work will
credit the creator as author unless the creator
requests that he or she not be credited upon timely
written notice to the Chancellor; and/or
(ii)
Upon commercialization of the work either (a) the
creator shall reimburse the University for the resources
provided the creator in conjunction with creation
of the work, or (b) the creator shall share income
from such commercialization with the University,
in an amount to be negotiated between the creator
and the Office of Technology Transfer.
Unless otherwise directed by the Chancellor
or his designee, two-thirds of the proceeds from
commercialization of the work shall be allocated
to the creator’s department, and one-third to the
Office of Technology Transfer.
(e)
Selection of release options; appeal.
The
Director of the Office of Technology Transfer, in
consultation with the creator’s chair, shall determine
which of the options available under Section
V(A)(3)(d)(ii) above will be selected in conjunction
with the release of such a work to its creator.
Disputes regarding whether a work is a Directed
Work shall constitute disputes regarding ownership
to be resolved under the dispute resolution procedures
specified below.
However, decisions regarding financial terms
made under Section V(A)(3)(d)(ii)
above shall not be subject to appeal under this Policy. In the event that the creator and the University are unable to
reach agreement regarding such financial terms, ownership
of the work at issue shall remain with the University.
(f)
Joint Ownership.
In
addition to the foregoing provisions for release to
the creator of a Directed Work, the University through
the Office of Technology Transfer in consultation
with the creator’s chair and the creator may alternatively
negotiate for joint ownership of the work.
In such case either party will be allowed to
use and exploit the work without accounting to the
other, unless otherwise agreed in writing.
(4)
Sponsored or Externally Contracted Works.
(a)
Definition.
A
Sponsored or Externally Contracted Work shall be any
copyrighted work developed using funds supplied under
a contract, grant, or other arrangement between the
University and a third party, including a sponsored
research agreement.
(b)
Ownership.
(i)
Unless the agreement expressly requires copyright
ownership by the University or conveyance of rights
to a third party, the creator of a Sponsored or
Externally Contracted Work shall own the work.
As a condition of employment, faculty and
EPA non-faculty creator-owners of a Sponsored or
Externally Contracted work shall be deemed to have
granted the University a perpetual, non-exclusive,
non-transferable, royalty-free license to use the
work for the University’s own non-commercial educational
or research use. For the purposes of this Policy, “educational”
use means use for the purpose of offering regular
academic course credit through a UNC Charlotte academic
department. Such license includes the right to make
derivative works. The original or a derivative work
will credit the creator as author unless the creator
requests that he or she not be credited upon timely
written notice to the Chancellor.
(ii)
The University will own a Sponsored or Externally
Contracted Work where the relevant agreement requires
copyright ownership by the University or conveyance
of rights to a third party, in which case the University
will convey rights to the third party as required.
In such cases the creator of the copyrighted
work shall be required to report the work to the
Office of Technology Transfer, using such forms
and procedures as that Office develops.
Where a proposed sponsored research agreement
or research grant will require that copyrighted
works be owned by the University or a third party,
the Office of Research Services should inform the
relevant Principal Investigator of the copyright
provisions and secure his or her consent to such
provisions before the agreement is signed or the
grant accepted.
(c)
Release.
Sponsored
or Externally Contracted Works owned by the University
may be released to the creator or jointly assigned
to the creator and the University, through the procedures
mandated for Directed Works, where the University
has ascertained that such release will not conflict
with the terms of the relevant agreement or grant,
or with written consent of the other party to the
agreement or grant.
(d) Disclosure.
If an agreement under which a Sponsored or
Externally Contracted Work is created
addresses copyright ownership, then the disclosure
terms of that agreement control. If an agreement under
which a Sponsored or Externally Contracted
Work is created
is silent on copyright ownership, then the creator
must disclose the existence of the work prior to any
commercialization of that work.
Disclosure shall be made in writing to the
creator's department head and dean (or other supervisor,
if applicable). Any questions on commercialization
may be addressed to the Office of Technology Transfer.
B. Works Created by SPA Staff Employees Considered
Works Made for Hire.
(1)
Definition.
For
purposes of this Policy, a “work made for hire” is:
(a)
A work prepared by an employee within the scope of
his or her employment; or
(b)
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.
(2)
Ownership.
Works
made for hire by SPA staff shall be owned by the University.
Exceptions to University ownership may occur
where
(a)
The University with written approval of the Chancellor
or a designee enters into an agreement with an SPA
employee in advance of creation of the copyrighted
work specifying that the work shall be owned in whole
or in part by the employee;
(b)
University ownership is waived by the Chancellor or
a designee; or
(c)
The SPA Staff creator is an author or co-author of
a Traditional or Non-Directed Work, but only to the
extent necessary to allow the SPA Staff creator to
assign rights to academic publishers for publication
made with no more than nominal consideration to the
creators.
C. Works by Independent Contractors.
Each
University unit or department entering into arrangements
for work to be produced by an independent contractor
must execute a written contract, signed by an authorized
University official, which includes a provision that
the University shall own copyrighted works produced
by the independent contractor. Any exceptions must be
approved by the appropriate vice chancellor or designee.
D. Student Works.
(1)
Definition.
Student
Works are papers, computer programs, theses, dissertations,
artistic and musical works, and other creative works
made by University students.
(2)
Ownership and Use.
(a)
Students retain ownership of copyright in their Student
Works; provided however, that as a condition of enrollment
the student shall be deemed to have granted the University
a non-exclusive, perpetual, world-wide, royalty-free
right and license to reproduce and publicly or privately
display, distribute or perform each Student Work for
the University's own non-commercial educational purposes.
The University's right and license in this paragraph
is subject to the student’s privacy rights under federal
law. Other
exceptions may be granted when the student offers
the work to the Office of Technology Transfer for
commercialization.
(b)
Student Works created in the course of the student’s
employment by the University shall be considered Works
Made for Hire, and ownership and use of such works
shall be as specified in Section V(B)
above.
(c)
As a condition of enrollment at UNC Charlotte, Student
Works that constitute notes of classroom and laboratory
lectures and exercises shall not be used for commercial
purposes by the student generating such notes.
VI. Works
Subject to Both Copyright and Patent Protection.
Where
an invention is subject to protection under both patent
law and copyright law, if the University through the
Office of Technology Transfer determines to retain title
to its patent rights, the inventor/creator shall assign
copyright to the University. On commercialization of such works, the inventor/creator
shall be compensated only in accordance with the provisions
of the University of North Carolina Patent Policy and
the UNC Charlotte Patent Policy
and such procedures as may be developed thereunder.
The Office of Technology Transfer may on its own initiative
investigate whether a copyrighted work reported to it
may also be subject to patent protection.
VII. Dispute
Resolution.
A. Jurisdiction.
Any
University faculty or staff employee or student may
seek resolution of a dispute regarding ownership of
a copyrighted work governed by this Policy, including
a dispute over whether use of University resources is
an exceptional use, by filing a written request with
the Chancellor. Upon
receipt of such a request, the Chancellor shall authorize
the creation of an ad hoc Copyright Dispute Resolution
Panel, composed pursuant to Section III(B)(1) above.
B. Conduct of Hearing.
The
Copyright Dispute Resolution Panel shall conduct a hearing
into the matter or may make a recommendation based upon
the written record, provided that all parties to the
dispute are given an opportunity to present evidence
and arguments in support of their respective positions.
Each party shall provide the other party with
a copy of any written materials submitted to the Panel
simultaneously with submission of such materials to
the Panel. Any hearing will be conducted following procedures
set forth by the Panel or promulgated by the Faculty
Copyright Education and Policy Committee. No party shall
have the right to be represented by counsel before the
Panel, but any party may be accompanied at a Panel hearing
by an adviser of his or her choosing, who shall not
participate in the hearing, but who may provide advice
and assistance to the party he or she accompanies.
C. Disposition.
Each
Copyright Dispute Resolution Panel shall report its
findings and conclusions to the Chancellor in writing,
along with a written recommendation for disposition
of the matter, within forty-five days of authorization
of the Panel by the Chancellor. Provided, however, that for good cause the
Chair of the Copyright Dispute Resolution Panel may
extend the time period for such report by not more than
an additional thirty days. Copies of such findings, conclusions, and recommendation
shall be provided to all parties. On receipt of such findings, conclusions and recommendation, the
Chancellor shall issue a written decision in the matter. The Chancellor’s decision shall be final.
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