FOR COMMENT

The proposed Policy and Procedures Relating to Copyrights and Commitment of Effort was developed and approved by a committee jointly appointed by the Faculty Senate and the Provost (Almanac January 18, 2000). The policy represents a revision of the Faculty Senate document which appeared in Almanac on April 27, 1999. It replaces the language on software that currently appears in the Handbook for Faculty and Academic Administrators and it supplements the current Policy on Conflict of Interest.

President Rodin and Provost Barchi have asked for the Faculty Senate's advice on the proposed language. The policy has been referred to the Senate Committee on the Faculty and will be considered by the Senate Executive Committee in October. Please send comments by e-mail to Professor Larry Gross, Chair of the Faculty Senate at lgross@asc or to Carolyn Burdon at burdon@pobox or by campus mail to the Faculty Senate, Box 12 College Hall/6303 by September 19.

Proposed Policy and Procedures Relating to Copyrights and Commitment of Effort

Spring 2000

Proposed Language for the Handbook for Faculty and Academic Administrators

(Deletions in brackets; insertions underlined)

V.D. Policy and Procedures Relating to Copyrights and Commitment of Effort

V.D.1. Policy Statement on Copyrights. The Trustees of the University of Pennsylvania, subject to the exceptions declared in Sections V.D.1.a., V.D.1.b. and V.D.1.c.,affirm the academic custom that creators of intellectual property own the copyright to works resulting from their research, teaching and writing and [of the authors] have the individual right to apply for, own all right, title and interest, enforce, profit by and transfer to other parties, such as publishers, copyrights in their works under the laws of the United States and other jurisdictions. Computer software not protected by patent law will be treated no differently from other copyrighted material.It is recommended that whenever authors transfer interests in copyrightable works, they secure for the University the right to reproduce such copyrightable works, free of royalties, for use in instruction.

V.D.1.a. Exceptions to this custom may arise when works are made under government sponsored research, industry sponsored research, and certain grants in which the University assumes specific obligations with respect to a copyrightable work resulting from a given sponsored program. [The Trustees of the University of Pennsylvania declare that] If necessary to fulfill its obligations to a sponsor, the University will own all right, title and interest to copyrightable works created under such sponsored programs.

V.D.1.a.1. In accordance with such obligations, the University will secure an [assignment] acknowledgement from the authors of the copyrightable work prior to the commencement of the sponsored program. Authors who are also principal investigators and have responsibility for other authors will secure [assignment] acknowledgement from said authors prior to the commencement of the sponsored program.

V.D.1.a.2. The University shall negotiate a license with the sponsor in accordance with applicable provisions of the sponsored research agreement. Net revenues realized from said sponsored research agreements will be distributed in accordance with the procedures for the distribution of patent royalties described in Section 2.3 of the Patent and Tangible Research Property Policies and Procedures, except that the 17.5% research foundation share and the 5% intellectual property fund share will be maintained as a copyright fund share. The copyright fund will be administered by the Office of the Provost to support the development of pedagogical innovation. When negotiating such sponsored research agreements, the University shall, whenever practicable, make reasonable efforts to protect the ownership rights of the authors.

V.D.1.b. Exceptions to this custom also arise when authors [faculty,] create works considered to be "works made for hire" and are the property of the University. Those works that are prepared by the author pursuant to the express direction of a supervisor, or pursuant to the specific provisions incorporated within a position description will be considered, for purposes of this policy, "works made for hire." ["Works made for hire" are those works that are prepared by the author pursuant to the express direction of a supervisor, or pursuant to specific provisions incorporated within a position description, or pursuant to part of the requirements of an academic degree.] Works created by [faculty and students]authors in the course of their instructional or research activities shall not be considered "works made for hire."

V.D.1.b.1 Prior to the preparation of the "work made for hire," the University may request, and if so the authors shall provide, an assignment or other declaration of the University's ownership of thatwork. Authors who are also principal investigators and have responsibility for other authors will secure assignments from said authors prior to the preparation of a "work made for hire." Failure to secure assignment does not negate the University's ownership of the work. In the event of subsequent disagreement over ownership of a "work made for hire," the case shall be referred to the committee noted in V.D.4.c.

V.D.1.b.2 Net revenues realized from the commercialization of "works made for hire" will be distributed as in V.D.1.a.2. [to the academic administrative department or unit supporting the creation of such work, except that the Center for Technology Transfer shall be entitled to recover its out-of-pocket expenses and any previously negotiated service fee not to exceed 20% of gross revenue. Such net revenues shall be used in the fulfillment of the research, academic, or administrative mission of the department or unit.]

V.D.1.b.3 The University will have the authority to waive the "work for hire" claim where it judges that doing so is in the interest of the University.

V.D.1.c. Exceptions to this policy arise when the faculty create works that make substantial use of the services of University non-faculty employees or University resources. When such support is provided the works produced shall belong to the University unless there is explicit agreement otherwise. The faculty member(s) and the units providing such support shall agree in writing on the ownership of such works prior to the provision of the support. Not withstanding the above, the faculty member(s) may subsequently petition the University to waive its ownership. The determining official for this action is the Dean of the School in which the faculty member has his or her (their) primary appointment(s) (or the Provost in the case where a Dean is the creator). In the event of subsequent disagreement over the use of University resources in the creation of some work, the case shall be referred to the committee noted in V.D.4.b.

V.D.1.c.1 The reference to "substantial use of the services of University non-faculty employees or University resources" means the use of University funds, facilities, equipment, or other resources significantly in excess of the norm for educational and research purposes in the department or school in which the creator(s) hold his or her (their) primary appointment(s). Academic year salary, office, usual library resources, usual secretarial and administrative staff resources or usual computer equipment are not regarded as constituting "substantial use of services of University non-faculty employees or University resources." Any question about what constitutes substantial resources should be referred to the committee noted in V.D.4.b.

V.D.1.c.2 Net revenues realized from the commercialization of such works will be distributed as in V.D.1.b.2. [to the academic or administrative department supporting the creation of such work, except that the Center for Technology Transfer shall be entitled to recover its out-of-pocket expenses and any previously negotiated service fee not to exceed 20% of gross revenue. Such net revenues shall be used in the fulfillment of the research, academic, or administrative mission of the department or unit.]

V.D.1.d. [In the event that a copyrightable work may also be defined as materials in the Patent and Tangible Research Property Policy and Procedures, the source of commercial income, i.e. whether it is derived from a patent or copyright license, shall determine whether a particular intellectual property falls under the provisions of the University's Patent Policy or Copyright Policy.] A given intellectual property may be protected in some cases inclusively by United States patent, copyright and trademark laws, and in some cases by only one or two such intellectual property laws, with each body of law protecting a different feature of the given intellectual property. Consequently, definitions in the Patent and Tangible Research Property Policies and Procedures and the Copyright Policy and Procedures will at times overlap. When a single license agreement incorporates more than one type of intellectual property protection, prior to the execution of said license agreement, a written agreement shall be executed by the University and the authors stipulating which University intellectual property policy is applicable.

V.D.2. [Conflict of Commitment] Commitment of Effort (See also Conflict of Interest policy) A full-time faculty member's primary commitment in teaching and research is to the University of Pennsylvania. Any teaching carried out in another setting, independent of medium, for which students receive academic credit must receive prior approval of the faculty member's Dean. Any teaching, research or other activity in which the faculty member's department or school is actively engaged will presumptively claim the faculty member's primary effort, and carrying out these activities in another setting will also require a specific release from such commitment by the Dean. Identification of activities covered by the preceding restriction must have explicit approval of the school faculty and Dean.

V.D.3. Audio-Visual Works. Any audio-visual works or recordings using other media of courses intended for students at the University ofPennsylvania belong to the University and may not be further distributed without permission from the appropriate school Dean. Such audio-visual works may not be used commercially without the permission of everyone who appears in the final program.

V.D.3.a. This policy is not intended to apply to audio-visual works or recordings that have a specific short term use such as videotapes of lectures by job candidates, audio-visual works used to provide an alternative lecture when students may miss class because of a religious holiday, or audio-visual works used in teacher development programs.

V.D.3.b. Net revenues realized from the commercialization of audio-visual works and recordings using other media will be distributed as in V.D.1.b.2. [to the academic or administrative department supporting the creation of such work, except that the Center for Technology Transfer shall be entitled to recover its out-of-pocket expenses and any previously negotiated service fee not to exceed 20% of gross revenue. Such net revenues shall be used in the fulfillment of the research, academic, or administrative mission of the department or unit.]

V.D.4. Procedures for the Administration and Management of Copyrightable Works.

[V.D.4.a. Authors who have created a copyrightable work that is subject to the provisions of Sections V.D.1.a., V.D.1.b. and V.D.1.c. shall promptly disclose the creation of such works to the intellectual property officer (IPO) with an intellectual property disclosure form.]

V.D.4.a. Periodic Review of Policy and Procedures. The Policy Statement on Copyrights and Commitment of Effort [these related procedures] shall be reviewed on a periodic basis by a review committee appointed by the Provost in consultation with the Faculty Senate to determine whether they are accomplishing their intended purposes; are in conformity with federal and state laws, including intellectual property laws; and, are consistent with prevailing norms in university-industry relationships. The review committee shall make recommendations to the Provost and the Executive Vice President, who shall confer with the President.

V.D.4.b. The Provost in consultation with the Faculty Senate shall annually appoint a committee to resolve any disputes involving the interpretation or administration of the Policy Statement on Copyright and [Related Procedures] Commitment of Effort. The committee may, through procedures of its own design, review, mediate, and decide any such dispute brought before it. The IPO shall provide staff support for the committee. Any decision of the committee may be appealed to the [President] Provost, who will make a final decision for the University.

Additional Definitions

Assignment: In addition to Section 4.0.3 of the Patent and Tangible Research Property Policies and Procedures, the execution of a formal document which transfers the right, title and interest of an author of a copyrightable work.

Authors: The University faculty and other members of the University community [emeritus faculty, visiting faculty, scientists or others, adjunct faculty, post-doctoral employees, or other employees, or students,] who would be considered authors under copyright laws of the United States and other jurisdictions, for such works as books, journals, articles, text, administrative reports, studies or models, glossaries, bibliographies, study guides, instructional materials, laboratory manuals, syllabi, tests, proposals, lectures, musical or dramatic compositions, films, film strips, charts, transparencies, video or audio recordings or broadcast, computer software, CD ROMS, circuitry, microprocessor designs and other works that may be copyrightable under laws of the United States and other jurisdictions.

Copyrightable Work: A work fixed in tangible medium that may be copyrightable under laws of the United States and other jurisdictions.

Computer Software: The source code and the object code, and related documentation, of computer programs and designs of computer circuitry and microprocessor chips. In the context of computer software, for purposes of this policy, authorship refers to those persons who conceive of such computer software, as well as to those persons who author source code, object codes, masks, patterns and the like who would be considered authors under the copyright laws of the United States and other jurisdictions.

Intellectual Property Task Force

Eric Clemens, Professor, Operations & Information Management

Peter Conn (co-chair), Deputy Provost; Professor, English

David Farber, Alfred Fitler Moore Professor of Telecommunications Systems; Professor, Computer & Information Science

Mike Fitts, Robert G. Fuller, Jr., Professor of Law

Richard Kihlstrom, Miller-Freedman Professor of Finance

Barbara Lowery (co-chair), Associate Provost; Independence Foundation Professor of Nursing

Mitchell Marcus, RCA Professor of Artificial Intelligence; Chair, Computer & Information Science

Gail Morrison, Vice Dean of Education; Professor, Medicine

Russell Neuman, Professor, Communications

Jim O'Donnell, Vice Provost, Information Systems & Computing; Professor, Classical Studies

Gerald Porter, Professor, Mathematics

Kenneth Shropshire, Associate Professor, Legal Studies; Associate Professor, Real Estate

Peter Stallybrass, Professor, English

Dana Tomlin, Professor, Landscape Architecture & Regional Planning

Almanac, Vol. 47, No. 2, September 5, 2000

| FRONT PAGE | CONTENTS | JOB-OPS | CRIMESTATS | WELCOME BACK | FOR COMMENT: Policy on Copyright | HOLIDAYS: RELIGIOUS & RECOGNIZED | TALK ABOUT TEACHING ARCHIVE | BETWEEN ISSUES | SEPTEMBER at PENN |