Distance Education: Intellectual Property UPPS No. 01.04.25
Issue No. 3
Effective Date: 09/22/2010
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, The 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-delivered course materials and clarifies the rights and responsibilities of the parties involved.
01.04 The Intellectual Property Committee administers this policy. As required by the Board of Regents, this committee consists of no fewer than three members, one of whom is designated by the president to serve as chair.
02. LIMITATIONS OF THIS POLICY
02.01 This UPPS does not cover other aspects of the copyright law. Other summaries are found in:
UPPS No. 01.04.20, Copyright Guidelines for Musical Performances on Campus
UPPS No. 01.04.21, Copyright Guidelines for the Texas State Albert B. Alkek Library
UPPS No. 01.04.22, Copyright Guidelines for Classroom Use and Research
UPPS No. 01.04.23, Copyright Guidelines for Showing Movies on Campus
UPPS No. 01.04.24, Policy on Copyrighted Computer Software
03.01 "Distance Education" is the formal educational process that occurs when students and instructors are not in the same physical setting for the majority (more than 50 percent) of instruction. A course is considered a distance education course if the students receive more than one-half of the instruction at a distance. Texas State can deliver distance education synchronously or asynchronously to locations away from its main campus or via instructional telecommunications to any other location. This includes electronic delivery of all types.
03.02 Two categories of distance education courses are defined:
a. Fully Distance Education Course – A course that may have mandatory face-to-face sessions totaling no more than 15 percent of the instructional time. Examples of face-to-face sessions include orientation, laboratory, exam review, or an in-person test.
b. Hybrid or Blended Course – A course in which a majority (more than 50 percent, but less than 85 percent) of the planned instruction occurs when the students and instructors are not in the same place.
03.03 ”Electronically Delivered Course Materials" are materials that use electronic methods to teach students.
03.04 "Intellectual Property" is the work product of authors and inventors.
03.05 "Category" is a classification of a work's ownership and the compensation associated with it. The classification reflects individual efforts and Texas State resources used to produce the work.
04. GENERAL POLICIES
04.01 Copyright Ownership. Texas State University System Rules and Regulations Copyright Policy Chapter III, Section 10 recognizes that in most instances faculty members own copyright in scholarly works they create. Therefore, faculty members generally hold copyright in electronically-delivered materials they create on their own initiative. However, the Regents' copyright policy recognizes that Texas State owns the copyright to works commissioned by Texas State and works made for hire.
a. Jointly Created Works. The faculty author and Texas State jointly own electronically-delivered course materials created jointly by the faculty author and others, as works for hire. Any owner of copyright in electronically-delivered 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 the copyright of their works. Faculty members must obtain a student’s permission to use the student’s work in a faculty-authored work.
c. Disposing of Materials. If Texas State has an ownership interest in these materials, Texas State's consent is necessary before faculty members may dispose of these materials.
04.02 Revision Rights. Faculty members may negotiate these rights and limitations in writing in advance of the materials creation. In certain circumstances, faculty members should place a time limit upon the use of electronically-delivered course materials that are time-sensitive, regardless of who owns the copyright to these materials.
a. Faculty members may negotiate these rights and limitations in writing in advance of the materials’ creation. 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 the faculty member does not make a revision that Texas State believes necessary or the revision 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.
04.03 Royalties. Faculty members will receive all royalties that may accrue from the commercialization of electronically-delivered 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. Example: Using substantial Texas State facilities, a faculty member initiates the creation of electronically-delivered course materials.
b. Dividing Royalties. In the absence of a contract with other terms, specific division of royalties is addressed in Section 05 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.
04.04 Contributed Materials. The author may incur liabilities by including material in electronically-delivered 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 members comply with copyright and privacy laws.
b. Author's responsibilities. The author of electronically-delivered 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, and assuring that those documents are accessible. Authors are also responsible for renewing permissions and releases according to the terms stated in the documents.
04.05 Using Texas State's Name. Faculty members must observe the same requirements that apply in other contexts with respect to using Texas State's name in electronically-delivered course materials.
04.06 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.
04.07 Retaining Non-exclusive License. Except in Category 1 below, Texas State retains a non-exclusive educational license to reproduce and use the electronically-delivered course materials in teaching Texas State's courses on or off campus.
04.08 Administering this Policy. Texas State's Intellectual Property Committee will administer this policy and apply it equitably across the campus.
a. Initial Determination. A faculty member should first meet with the department chair and dean to determine: (1) the category to which the department will assign the electronically-delivered course materials; and (2) issues related to ownership, university resource commitment, and royalties.
b. Review. The faculty member will forward the written agreement to the Intellectual Property Committee for its review and assurance that the policy is being applied equitably.
c. Resolving Issues. The Intellectual Property 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.
05. SPECIFIC CATEGORIES ASSIGNING OWNERSHIP AND ROYALTIES
05.01 Category Classification. Categories 1 through 4 below do not address situations in which Texas State faculty members use their own work in a Texas State course. For these situations, see Category 5. Faculty members should meet with their chairs and deans before creating electronically-delivered 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 Texas State’s support for the project.
05.02 Course Development Release. Faculty members may receive release time for duties performed in the best interests of Texas State’s instructional program. These duties include developing electronically- delivered 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 05.04).
05.03 Category 1: Totally Faculty or Staff Member 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 placed 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 courses 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 from parties external to Texas State, and retains distribution rights.
05.04 Category 2: Minimal Texas State 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 two hours of streaming video as part of the course. In addition, the faculty member checks out digital recording workstations for two weeks. Digital Inc. spends over 300 hours recording materials provided by the faculty member and creating the Web site course, and places the course on its server. The faculty member works on the project almost exclusively on the faculty member’s own time.
b. Example 2. A 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 for use as part of the course. The faculty member spends 200 hours creating the course on his or her own time. The course is placed 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 this case, Texas State will compensate the faculty member at a rate agreed to by Texas State and the faculty member.
05.05 Category 3: Substantial Texas State 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 a department's literature course totally available on the Web site. Texas State provides the faculty member with a course release in the spring semester and pays the faculty member a course in the summer to develop the product. The faculty member 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 placed on Texas State's server.
b. Example 2. Texas State offers its MBA program by taping courses and allowing employees of two 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. Texas State places 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 this case, Texas State will compensate the faculty member at a rate agreed to by Texas State and the faculty member. Texas State also has a non-exclusive commercial license to market the course outside Texas State. 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.
05.06 Category 4: Work Made For Hire or 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 the department will videotape and broadcast the next year to five school districts as part of a new master’s program the department offers. 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.
05.07 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. Texas State 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. The faculty member will not receive compensation beyond the standard compensation for teaching the course. If Texas State uses the materials with another faculty member, Texas State will compensate the faculty member who designed the materials as negotiated.
c. Ownership and Compensation. Categories 1 through 4 will determine ownership with no extra compensation beyond normal teaching compensation for use of the work.
06. OTHER RESPONSIBILITIES
06.01 Academic Departments. The academic department chair or school director, in consultation with the faculty, shall (1) ensure that the technology used is appropriate to the nature and objectives of the course and program; (2) ensure currency of materials, courses, and programs; (3) negotiate appropriate workload adjustments for faculty members in accordance with their full professional responsibilities; (4) inform potential students of the technology and other resources required to successfully complete the course or program; and (5) 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.
06.02 Support Services. Each Texas State division shall provide appropriate student and faculty member support services to ensure success in the development and delivery of distance education courses and programs.
07. REVIEWERS OF THIS UPPS
07.01 Reviewers of this UPPS include the following:
Associate Vice President for April 1 E2Y
University Attorney April 1 E2Y
08. 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