Distance Education: Intellectual Property UPPS No. 01.04.25

Issue No. 2

Effective Date: 01/15/2008

Review: April 1 E2Y

01. POLICY STATEMENTS

01.01 This policy is intended to help Texas State fulfill its educational mission in accordance with applicable law and the Rules and Regulations of the Board of Regents, Texas State University System.

01.02 This document's purpose is to encourage the production and offering of quality distance education courses and programs and to protect the rights of faculty, students, and Texas State in these courses and programs. This document supports the "Principles of Good Practice For Academic Degree And Certificate Programs And Credit Courses Offered Electronically" adopted in July 1997 by the Texas Higher Education Coordinating Board.

01.03 This document addresses issues raised by the creation, use, and distribution of various forms of electronically published course materials and clarifies the rights and responsibilities of the parties involved.

02. DEFINITIONS

02.01 "Distance Education" is instruction in which the majority of instruction occurs when the student and instructor are not in the same physical setting. A class is considered a distance education class if the students receive more than one-half of the instruction at a distance. Distance education can be delivered synchronously or asynchronously to locations away from Texas State's main campus or via instructional telecommunications to any other location, including electronic delivery of all types.

02.02 ”Electronically Published Course Materials" are materials that use electronic methods to teach students.

02.03 "Intellectual Property" is the work product of authors and inventors.

02.04 "Category" is a classification of a work's ownership and the compensation associated with it. The classification reflects individual efforts and university resources used to produce the work.

03. GENERAL POLICIES

03.01 Copyright Ownership. The Regents' copyright policy recognizes that in most instances faculty members own copyright in scholarly works they create. Therefore, faculty members generally hold copyright in electronically published materials they create on their own initiative. However, the Regents' copyright policy recognizes that Texas State owns the copyright to works commissioned by the University and works made for hire.

a. Jointly Created Works. The faculty author and Texas State will jointly own electronically published course materials that are created jointly by the faculty author and others, whose contributions would be works for hire. Any owner of copyright in electronically published course materials may secure copyright registration. Joint owners may, but do not have to, agree on responsibility for enforcing the copyright.

b. Student Works. The copyright law controls works created by students. Students own copyright of their works. Faculty members must obtain a student’s permission to use the student’s work in a faculty-authored work.

03.02 Faculty Responsibility To Students. Faculty members have a responsibility to meet the reasonable needs of their students, including those needs best addressed by the use of technologies to make class materials readily available.

a. Example. For example, if remote students or students with disabilities need special accommodations or recordings, faculty should respond in the ordinary course of teaching and extend resources available under reasonable circumstances. (See UPPS No. 07.11.01, Section 03.03, or the Faculty Resource Guide)

b. Ownership. Electronically published course materials are the property and responsibility of the faculty member who creates or authorizes them. This ownership includes, for example, tape recordings and videotapes created in the ordinary course of instruction.

c. Disposing of Materials. Faculty should be willing to use technologies appropriate to the circumstances to make their course materials reasonably available to their currently registered students. Faculty may dispose of such materials in such manner as they deem appropriate in accordance with their department's Records Retention Policy. If Texas State has an ownership interest in these materials, Texas State's consent is necessary before faculty may dispose of these materials.

03.03 Course Development. Faculty may receive release time for duties performed in the best interests Texas State’s instructional program. These duties include developing electronically published course materials. Course release, however, does not automatically determine the appropriate category in which to place the work. Normally, a course release implies at least a minimal allocation of Texas State’s resources as provided in Category 2 (see Section 04.03).

03.04 Revision Rights. Faculty should generally retain the right and have the responsibility to update, edit, or revise electronically developed course materials that become out of date. In certain circumstances, faculty should place a time limit upon the use of electronically developed course materials that are time-sensitive, regardless of who owns the copyright to these materials.

a. These rights and limitations may be negotiated in advance of the creation of the materials and may be reduced to writing. In the absence of a written contract, each faculty member has the right and obligation to revise work on an annual basis in order to maintain academic standards.

b. If a faculty member does choose to revise the work and such revision is done satisfactorily, the faculty member retains the rights to full royalties as discussed below for another year. If Texas State believes a revision is necessary, and no timely revision is made or one is made but does not maintain academic standards, Texas State may refuse to market the product. Or, Texas State may employ another person to update the work and charge the cost of updating the faculty member's portion of the revision against any royalties paid to the original author.

03.05 Royalties. Faculty members will receive all royalties that may accrue from the commercialization of electronically published course materials they create on their own initiative. On the other hand, Texas State retains all royalties that may accrue from the commercialization of these materials created as a work for hire or created as a condition of employment.

a. Commercialization. Copyright law permits joint owners to pursue commercialization either jointly or separately, with accounting. Other circumstances may require review on an individual basis. An example would be the creation of electronically developed course materials initiated by a faculty member who uses substantial Texas State facilities.

b. Dividing Royalties. In the absence of a contract with other terms, specific division of royalties is addressed in Section 04 below. In instances of joint ownership among faculty members when Texas State retains rights to royalties, the faculty members shall determine by written document the division of royalties. Absent a written document of division of royalties, the faculty members shall divide their share pro rata based on participation.

03.06 Contributed Materials. The author may incur liabilities by including material in electronically published course materials that he or she has not created. Examples include using voices or images of persons without their permission.

a. Compliance with Law. Texas State's policy is that faculty and staff comply with copyright and privacy laws.

b. Author's responsibilities. The author of electronically published course materials is responsible for obtaining written permissions and releases necessary to avoid infringing copyright or invading privacy rights of others. The author is also responsible for retaining such documentation in accordance with the Texas State Records Retention Schedule.

03.07 Using Texas State's Name. Faculty members must observe the same requirements that apply in other contexts with respect to using the University's name in electronically published course materials.

03.08 Protecting the Work. Texas State will determine whether to register the copyright or to enforce the rights to works that it owns. Faculty members will make these decisions regarding works that they own. Any one of the authors of a joint work may register and enforce the copyright in the names of all owners, with appropriate accounting.

03.09 Retaining Non-exclusive License. Except in Category 1 below, Texas State retains a non-exclusive educational license to reproduce and use the electronically published course materials in teaching Texas State's classes on or off campus.

03.10 Administering this Policy. Texas State's Patent and Copyright Committee will administer this policy and apply it equitably across the campus.

a. Initial Determination. A faculty member should first meet with his or her department chair and dean to determine: (1) the category to which the electronically published course materials will be assigned; and (2) issues related to ownership, university resource commitment, and royalties. These parties will prepare their agreement in writing.

b. Review. The faculty member will forward the written agreement to the Patent and Copyright Committee for its review and assurance that the policy is being applied equitably.

c. Resolving Issues. The Patent and Copyright Committee will advise the faculty member, dean, and chair of any inequitable applications of the policy. The chair and dean shall resolve the matter with the faculty member. If they cannot successfully resolve these issues the decision of the Vice President for Academic Affairs will be final.

04. SPECIFIC CATEGORIES ASSIGNING OWNERSHIP AND ROYALTIES

04.01 Special Note. Categories 1 through 4 do not address situations in which Texas State faculty members use their own work in a Texas State class. For these situations, see Category 5. Faculty members should meet with their chairs and deans before creating electronically developed course materials for distance education in order to reach agreement as to the appropriate category classification. In some situations the initial category classification may change based on a modification in university support for the project.

04.02 Category 1: Totally Faculty or Staff Generated. A work is placed in Category 1 if it resulted from an individual's efforts on his or her own personal time without any direct support from or through Texas State and without the use of any of Texas State's resources beyond those normally provided by Texas State.

a. Example 1. A faculty member in Sociology 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.

b. Example 2. A professor in Psychology is approached by the publishing arm of a learned society to create a CD containing 2,000 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 used the department's copy machine. The learned society creates and markets the CD.

c. Ownership and Compensation. The individual owns all intellectual property, may receive compensation for the work, and retains distribution rights.

04.03 Category 2: Minimal University Resources. A work is placed in Category 2 if it resulted from the individual's efforts with minimal resources above and beyond those normally provided.

a. Example 1. A faculty member works with Digital, Inc., a web course publishing company, to put the course, "Serving an Aging Population", totally on the web. Texas State provides funds to purchase time from Instructional Technologies Support to videotape 2 hours of lecture to be streamed as part of the course. In addition, the faculty member checks out digital recording workstations for 2 weeks. Digital Inc. spends over 300 hours recording materials provided by the faculty member and creating the web course, and mounts the course on its server. The faculty member works on the project almost exclusively on his or her own time.

b. Example 2. An adjunct faculty member who teaches Accounting Principles for Texas State volunteers to put half of the course on the web. Texas State provides 30 hours of training on the web platform used. Texas State also provides 20 hours of assistance in creating a Power Point presentation to be used as part of the course. The adjunct faculty member spends 200 hours creating the course on his or her own time. The course is mounted on Texas State's server.

c. Ownership and Compensation. The individual owns intellectual property and has the right to distribute the work. The individual may receive compensation for any distribution outside the Texas State course delivery. Texas State has a non-exclusive educational license to use the work as part of Texas State course delivery. In such case, the faculty member will be compensated at a rate agreed by Texas State and the faculty member.

04.04 Category 3: Substantial University Resources. A work is placed in Category 3 if it resulted from the individual's efforts with substantial resources above and beyond those normally provided.

a. Example 1. A faculty member volunteers to make his or her department's literature course totally available on the web. Texas State provides the faculty member with a course release in the spring semester and pays him or her a course in the summer to develop the product. He or she also contributes some of his or her own time. Texas State provides a digital camera to use in the project and assigns a person adept at developing web pages to work with the faculty member. The course is mounted on Texas State's server.

b. Example 2. Texas State's MBA program will be offered by taping courses and allowing employees of 2 corporations to download the courses to view on their own schedules. Three faculty members from the program will rotate grading and answering questions for each course. A faculty member who teaches in the discipline volunteers to offer the first course. During the next year, this faculty member is given release time from teaching for each semester. Texas State funds production time in Instructional Technologies Support for producing the tapes. Other offices contribute significant hours helping with production. The faculty member spends 60 hours over the year on his or her own time designing the course for television delivery. The University mounts the course on its server.

c. Ownership and Compensation. The individual owns intellectual property and has the right to distribute it and receive compensation for any distribution outside Texas State's course delivery. Texas State has a non-exclusive educational license to use the work as part of Texas State course delivery. In such case, the faculty member will be compensated at a rate agreed by Texas State and the faculty member. Texas State also has a non-exclusive commercial license to market the course outside the University. If licensed for commercial purposes either by Texas State or the faculty member, Texas State and the

faculty member will each receive a percentage of the royalty as negotiated. In case of multiple authors, the authors will share the royalty pro rata based on their participation.

04.05 Category 4: Work Made For Hire/Texas State Assigns Duty to Faculty or Staff Member to Develop a Work. A work is placed in Category 4 if Texas State contracts with an employee to develop a specific product. Texas State provides all resources for the work. The work was carried out as a part of the faculty or staff member's assigned time.

a. Example. The Chair of Curriculum and Instruction assigns a faculty member to a course that will be videotaped and broadcast the next year to sites in 5 school districts as part of a new masters program offered by the department. The faculty member is given course releases for the fall and spring semesters. All of the design and production work is done during working hours. The faculty member is assigned a .5 FTE research assistant for the academic year. Instructional Technologies Support contributes 250 hours in the design and production of the videotapes.

b. Ownership and Compensation. Texas State owns all intellectual property, has an exclusive educational and commercial ownership and license authority. The faculty member or staff employee is not entitled to payment of royalty.

04.06 Category 5: Faculty Member Uses Own Work as Part of a Texas State Course Offering. A work is placed in Category 5 if the faculty member is using a work that he or she created as part of teaching at Texas State.

a. Example 1. See Category 2, Example 1. In this case, the faculty member might offer the course at Texas State. 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 course compensation.

b. Example 2. See Category 3, Example 2. 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. If Texas State used the materials with another faculty member, the faculty member who designed the materials would be compensated as negotiated with Texas State.

c. Ownership and Compensation. Ownership is determined as provided in Categories 1 through 4. There will be no extra compensation beyond normal teaching compensation for use of the work.

05. OTHER RESPONSIBILITIES

05.01 Academic Departments. The academic department chair, in consultation with the faculty, shall (a) ensure that the technology used is appropriate to the nature and objectives of the course and program; (b) ensure currency of materials, courses, and programs; (c) negotiate appropriate workload adjustments for faculty in accordance with their full professional responsibilities; (d) inform potential students of the technology and other resources required to successfully complete the course or program; and (e) ensure that evaluation of the distance education course or program examines effectiveness and that the course or program is comparable to campus-based courses and programs.

05.02 Support Services. Each university division shall provide appropriate student and faculty support services to ensure success in the development and delivery of distance education courses and programs.

06. REVIEWERS OF THIS UPPS

06.01 Reviewers of this UPPS include the following:

Position Date

Associate Vice President for Academic Affairs April 1 E2Y

University Attorney April 1 E2Y

07. CERTIFICATION STATEMENT

This UPPS has been approved by the following individuals in their official capacities and represents Texas State policy and procedure from the date of this document until superseded.

Associate Vice President for Academic Affairs; senior reviewer of this UPPS

Provost and Vice President for Academic Affairs

President