2.3.1 Intellectual Property

Policy: 2.3.1

Intellectual Property

Date Policy Adopted: December 12, 2000

Revised Effective Date: December 12, 2000

Scope: All Employee Groups

For purposes of this Policy, the following terms shall have the following meanings:

“College Community” means all faculty, adjunct faculty, staff, paid student employees, trainees, visiting faculty and researchers, and any other employees and/or visitors covered by contractual agreements with the College.

“Copyrightable Materials” means original works of authorship fixed in any tangible medium of expression, including, but not limited to, literary, artistic, musical, graphic, and dramatic works. Examples of copyrightable materials include articles, books, films, poetry, sculpture, songs, software, web pages, and media-based courseware (which includes online courses), including, but not limited to, the content and code for such courseware.

“Creator” (or “creators”) means a member (or members) of the College Community who creates Intellectual Property subject to this Policy. For example, in the case of media-based courseware, the creators may include the creator(s) of the content and the creator(s) of the code for such courseware.

“Intellectual Property” means certain forms of intangible personal property, including, but not limited to, Copyrightable Materials, Patentable Inventions, Trademarks, and Trade Secrets. Intellectual Property shall also include any new forms of intangible personal property that may be included as intellectual property while this Policy is in effect.

“Patentable Inventions” means new, useful, and non-obvious devices, discoveries, processes, or compositions (or improvements thereon) for which a patent may be obtained.

“Trademark” means any word, symbol, or device or combination thereof used to distinguish the source of goods. The various symbols and logos of the College are Trademarks of the College.

“Trade Secret” means any information that derives independent economic value from not being generally known to the public (or to those who could obtain economic value from the disclosure or use of the information) and is the subject of reasonable efforts to maintain its secrecy. Unless bound by an agreement with a third party to maintain Trade Secrets, academic institutions do not maintain Trade Secrets.

As a general rule, Intellectual Property created by members of the College Community within the scope of their employment with the College, as an assigned duty from the College, or with the use of significant College resources is considered by federal copyright and patent law to be the property of the College. Subject to certain exceptions set forth below, the College shall own all right, title, and interest in all Intellectual Property created by members of the College Community within the scope of their employment, as an assigned duty from the College, or with the use of significant College resources. Intellectual Property that is not created within the scope of employment, is not created as an assigned duty from the College, and is not created with the use of significant College resources shall be owned by the creator(s) of such Intellectual Property. Furthermore, Intellectual Property that is initially owned by the College but subsequently transferred to the creator(s) shall be owned by the creator(s) of such Intellectual Property.

For purposes of this Policy, the following shall be considered in determining scope of employment: (i) the type of work the creator(s) is employed to perform; (ii) whether the Intellectual Property was created substantially within the work hours and work space of the creator(s); and (3) whether the creation of the Intellectual Property was actuated, at least in part, by a purpose to serve the College.

For purposes of this Policy, significant College resources is defined as project-specific College-supplied financial support or project-specific College services provided to or supporting the creation of Intellectual Property outside that which is supplied free of charge to all members of the College Community. Significant use of College resources includes, but is not limited to, the use of the following: College-supplied research funding; financial support from the Innovation College; project-specific release time; College-paid time within the employment period; long-distance telephone service; assistance of support staff outside the member’s department; College programming support resources; or instructional design or media production services. The use of the following by members of the College Community shall not be considered use of significant College resources: office space, routine departmental administrative assistant support, e-mail, Internet access, local (non-charge) telephone service, library resources, standard ITS installed software, personal workstations, or personal computers.

In recognition of established academic traditions, the College does not presently claim an ownership interest in the following, unless the preparation of such work was specifically directed by the College or significant College resources were used for its development:

• Scholarly books, textbooks, and articles (and exact electronic versions of such books, textbooks, and articles).
• Artistic works, including music, art, dance, still photography, scripts, story boards, treatments, video and motion picture films (excluding audio and/or visual recordings of classroom lectures or online course content).
• Course notes.

Furthermore, Intellectual Property created under a grant, contract, or other agreement with a third party and approved in writing by the College shall be owned by the creator(s) of such Intellectual Property, subject to the terms of such agreement.

With regard to derivative works created by the College under this subsection, while the creator(s) is employed by the College, (i) the College shall not compete directly for revenue with the creator(s) of the original work; and (ii) when reasonable to do so, the College shall seek the input of the creator(s).

Additionally, prior to creating any derivative works under this subsection in the exact medium as the original work (except for derivatives of course notes), the College shall first notify the creator(s) of the Intellectual Property of the College’s intention to create such derivative work; provided, however, that such notification is not required if the creator(s) is not then employed by the College or if public health or safety require otherwise. Within ten (10) days of receipt of such notification, the creator(s) shall either (i) agree to create such derivative work for the College; (ii) grant permission to the College to create such derivative work; or (iii) deny the College permission to create such derivative work.

• Use in teaching, scholarship, and research at the College
• Use of portions of the work in compilations and other composite works
• Subject to Subsection 1.C. of these Procedures, use of the Intellectual Property with a new employer

The creators shall also have the right to be identified as the author or one of the authors of the Intellectual Property.

To protect the rights of members of the College Community and the College, all Copyrightable Materials created by a member of the College Community within the scope of his or her employment, as an assigned duty from the College, or with the use of significant College resources, and not subject to an exception in Section 3 of the Policy, shall contain an appropriate copyright notice. An appropriate copyright notice shall contain the following: (1) the symbol “©”, or the word “copyright” or “copr.”; (2) the year of first publication; (3) the name “Yavapai College”; and (4) “All Rights Reserved.”

A. For all Intellectual Property listed as an exception in Section 3 of the Policy, the creator(s) of such Intellectual Property grants to the College a non-exclusive, irrevocable, perpetual, royalty-free right and license to use, distribute, market, reproduce, and create derivative works and compilations from such Intellectual Property for instructional, educational, and administrative purposes within the College. Members of the College Community who create Intellectual Property subject to an exception in Section 3 of the Policy shall, in any agreement with third parties relating to the Intellectual Property, include appropriate provisions permitting such use by the College.

B. For all Intellectual Property owned by the College pursuant to this Policy, and not subject to an exception in Section 3 of the Policy, the College grants the creator(s) of the Intellectual Property a non-exclusive, irrevocable, perpetual, royalty-free license to use the Intellectual Property, subject to the provisions of Subsection 1.C. of these Procedures, for the following purposes:

Policy

Yavapai College (the “College”) is committed to encouraging innovation, creativity, and the development of Intellectual Property by members of the College Community. The College is also committed to protecting the interests of the public by recovering income generated from Intellectual Property created through the use of public funds. Through this Intellectual Property Policy (the “Policy”), the College seeks to ensure that the rights and interests of all parties are fairly determined, with full consideration given to the proper role of the College and the principles of academic freedom.

1. DEFINITIONS

2. OWNERSHIP

3. EXCEPTIONS

Procedure

1. RECIPROCAL LICENSE

C. For all media-based courseware created by members of the College Community, the license granted to the creator(s) of such courseware does not authorize use outside the College while the creator(s) is employed by the College or use of any kind for one year after termination of such employment. Upon expiration of such one-year period following termination, the creator(s) may only use the courseware outside the College if substantial changes are made to such courseware. Additionally, in accordance with Section 2.4.2 of the Policies and Procedures Manual, “It is the Policy of the College that faculty and staff avoid conflicts of interest that have the potential to adversely affect the College's interests, to compromise objectivity in carrying out College responsibilities, or to otherwise compromise the performance of the College.”

For purposes of this Section 1.C., “substantial changes” to media-based courseware must include the following: (i) substantial and significant changes to the core content of the media-based courseware; and (ii) substantial and significant revision of the content of the courseware for use with a different jurisdiction or audience.

Any media-based courseware owned by the College and used by the creator(s) outside the College according to the terms of this Subsection 1.C., shall not contain the name of the College; provided, however, that the courseware shall contain a statement that the courseware is based upon copyrighted materials owned by the College. At any time after termination of employment with the College, the creator(s) of the Intellectual Property may petition the Human Resources Office for a release from the provisions of this subsection. Any petition under this subsection shall include, at a minimum, all available information regarding the last date on which the course was offered at the College and the degree to which the petitioner plans to alter the course (if at all) for use at another institution.

Notwithstanding the foregoing, even while employed by the College, adjunct faculty may develop courses for online delivery by another institution if such course (i) would not be accredited in any Yavapai College program, (ii) will not compete with any existing, substantially equivalent online course offered or in development by the College (competition shall mean competition for the same student base in a similar or related topic area); (iii) will not interfere with the creator’s duties at the College; and (iv) will not lead the public to believe that such online course is sponsored by the College.

2. ADMINISTRATIVE OVERSIGHT

Determinations of award for academic personnel will be made by the Executive Deans, as the President’s designees, with the Executive Dean from the creator(s) home campus being the chair. Determination of award for non-academic personnel will be made by the Executive Deans and at least one additional member of college leadership, with the director from the creator(s) department being the chair. In the event that the creators are from more than one campus or more than one department, the reviewing group will decide the chair. The reviewing group shall exercise broad discretion in the encouragement, development, and protection of Intellectual Property. The Human Resources Office will coordinate the notification activities associated with this Procedure.

3. NOTIFICATION

A. To determine whether Intellectual Property that a member of the College Community is planning to create, is creating, or has created (after the inception of this Policy) is subject to this Policy, the member shall submit a report to the Human Resources Office. This report must identify the creator(s) of the Intellectual Property and must describe the Intellectual Property, the circumstances surrounding its creation, and any other relevant information.

B. The Human Resources Office will notify the creator(s) within thirty (30) days of receipt of the completed report whether or not the College claims an ownership interest in the Intellectual Property. At the same time, the Human Resources Office will present the creator(s) with an agreement setting forth the manner in which revenues received from the Intellectual Property will be distributed, which shall be determined by the College, pursuant to Section 2 of this Procedure. When there are two or more creators of the Intellectual Property, the creators shall devise an appropriate distribution of the creator’s share of revenues. If the creators cannot reach an agreement regarding distribution, the creators shall share equally in the creator’s share of revenues. If, at any time, the College no longer wishes to retain ownership in the Intellectual Property, the Human Resources Office will notify the creator(s) and will execute the necessary documents assigning all rights to the appropriate party or parties.

4. CURRENCY

A. As to all Intellectual Property created by members of the College Community and owned by the College, the College will use reasonable efforts to ensure that the Intellectual Property is current and accurate, consistent with reasonable academic standards. The creator(s) of such Intellectual Property may petition the College to amend the use of the Intellectual Property, to make necessary changes to the Intellectual Property, to no longer identify the creator(s) as the author of the Intellectual Property, and/or to request that the College no longer use the Intellectual Property.

B. If the College has not used Intellectual Property owned by the College under this Policy for any period of twenty-four consecutive months following notification under Section 3 of these Procedures, then the creator(s) of such Intellectual Property may petition the College to transfer ownership of the Intellectual Property to the creator(s).

5. DISPUTE RESOLUTION

Disputes related to the application of the Policy shall first be submitted to the Human Resources Officer. The creator(s) of the Intellectual Property submitting such dispute (the “Appellant”) may appeal the decision of the Human Resources Officer to the College President. Upon receipt of such an appeal, the College President shall appoint a committee, which may include faculty, staff, and/or students. The committee shall review the decision of the Human Resources Officer and shall make a recommendation to the College President for a final decision. During this process, the Appellant(s) shall provide the committee with a written description of the creation of the Intellectual Property and the basis for the appeal. The committee shall review all materials submitted by the Appellant(s) and shall make a recommendation to the College President within thirty (30) days of receipt of such materials. The College President shall make a final decision within thirty (30) days of receipt of the committee’s recommendation.

6. LEGAL COMPLIANCE

A. The College shall comply with all applicable federal and state laws and regulations relating to Intellectual Property governed by this Policy.

B. To the extent that the creator(s) of Intellectual Property governed by this Policy incorporates or uses intellectual property owned by a third party, the creator(s) shall secure all necessary rights and permission to use such third-party intellectual property.

Date Policy Adopted: December 12, 2000

Effective Date: December 12, 2000

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Dr. Ed Harris, Board Chair