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Open Educational Resources: HCC Intellectual Property

HCC Intellectual Property Statement

HCC Intellectual Property

Excerpt from Faculty Guidebook

Intellectual property refers to creations of the mind or intellect. Such creations can be patented or copyrighted and can be owned by the creator of the property or by a purchaser of that property.

The general policy of HCC supports and encourages the creation, development, presentation, and delivery of new intellectual works and endeavors, including works of art, literature, technology, as well as related technology-based instruction processes and creation of software products by its faculty, staff, and other employee consultants.

The official intellectual property policy can be found as Policy #5095 in the Board Policy Manual (full text below). This policy defines individual and institutional ownership and use rights in such intellectual property and the distribution of revenues and other benefits that accrue from the creation and commercialization of intellectual property. This policy also confirms the non-competition obligations of faculty and staff in the use, display or sale of intellectual property works that are subject to this IP Policy. Faculty who are creating intellectual property should familiarize themselves with this policy, especially if they hope to benefit financially from it.

HCC Intellectual Property Policy

Policy No. 5095
Board Approved: February 15th, 2022

INTRODUCTORY STATEMENT

Hagerstown Community College (hereinafter “the College”) supports and encourages the creation, development, presentation and delivery of new intellectual works and endeavors, including works of art, literature, technology, as well as related technology-based instruction processes and creation of software products by its faculty, staff, and other employees and consultants.

Purpose and Scope

The purpose of the College’s IP Policy is to support the creation and dissemination of intellectual property, while simultaneously defining individual and institutional ownership and use rights in such intellectual property and the distribution of revenues and other benefits that accrue from the creation and commercialization of intellectual property. This policy also confirms the non-competition obligations of faculty and staff in the use, display or sale of intellectual property works that are subject to this IP Policy.

I. Definitions

For purposes of this Policy, the following definitions shall apply:

Copyright/Copyrightable Work - The Copyright Law of the United States protects original works of authorship that are fixed in any tangible medium of expression. In the context of copyright law, “original” means that the work has not been copied, i.e., it is an entirely independent creation. A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Under U.S. Copyright law, software is generally protected under copyright law, though in some cases software may be the subject of patent protection. For the purposes of this Policy, software used to disseminate knowledge, (e.g., course notes created in and/or distributed through CD-ROM technology) is copyrightable. To the extent that such software is subject to patent protection, this Policy applies to ownership of patentable software as well.

“College Resource” - Any item that is cost-consumable or is a tool or technology only accessible through the College.

“Courseware” - The set of tools and technologies used to present course content, independent of the content itself.

“Course Content” - The intellectual content of the course, as taught at or through the College.

“Exempted” or “Traditional Scholarly Work” - A scholarly work that falls within certain categories of copyrightable works for which academic institutions have historically waived any ownership interest in favor of the author or work. The College will recognize the following as categories of exempted or traditional scholarly works: all forms of tangible art, including but not limited to paintings, sculpture, apparel and jewelry (not including software graphics or design elements), textbooks, class notes, original written handouts created by faculty, written syllabi created by faculty, research proposals, in-person classroom presentation and instruction (separate and apart from software that may be used in such presentation), scholarly articles, scholarly monographs, dramatic works and performances (but not including videotapes, movies and other multimedia presentations not performed in a live setting) poetry, and popular fiction and nonfiction. As new types of works become established as scholarly works, the College may, in its discretion, expand this list beyond these historically recognized and established categories.

“Institutional works” - Institutional works are certain works produced as part of a collaborative effort under the supervision of a department of the College. Institutional works include, for example, works created in a project initiated and directed by a department, or works that are created and then developed and improved over time by a series of individuals, where authorship cannot be attributed to any one individual or group of individuals. Examples of the latter would be certain kinds of software or certain administrative forms that are developed and then improved and updated over time by multiple creators. Generally, institutional works shall also include works that are created at the direction of the College to support administrative/non-instructional functions, unless there are specific written agreements to the contrary.

“Work for Hire” - “Work for hire” generally refers to a work that is prepared by Faculty, Staff, employees, or consultants to the College Administrative employee within the scope of his or her employment or pursuant to an agreement between the College and that individual.

“Work for hire status” of a Work means that the College shall be considered the author and owner of the Work under the Copyright Act, unless there is a written agreement to the contrary that is signed by both the creator and the College. Works that are considered “exempted or traditional scholarly works” shall not be treated as Works for Hire under this Policy unless there is a specific written agreement to the contrary between the College and the author.

”Works” - Intellectual property as defined or recognized by law and custom created or developed through the application of intellectual efforts by one or more persons.

II. Ownership of Intellectual Property
Title to Works.

Subject to specific exceptions as set forth herein, the College shall be the recognized sole owner of, and shall retain title to, all Works by faculty and staff who have created and developed such Works within the scope of their employment, or with substantial use of purpose-specific College resources; all Institutional Works; and any Works that are developed without disclosure to the College as required by this policy. Any attempt to assign, sell, or otherwise transfer title or rights to any Works owned by the College without the Board of Trustee’s prior written consent shall be void and of no effect whatsoever.

Exempted or Traditional Scholarly Work.

The College will continue to recognize ownership in the creator of Works that constitute “Exempted or Traditional Scholarly Work” as those terms are defined in this Policy.

Work for Hire.

Ownership of Works for Hire not otherwise exempted under this Policy shall vest in the College unless there is a specific written agreement regarding the creation of the work and that agreement specifically vests title or ownership in someone other than the College. In the case of non-employee third parties with which the College is contracting for services related to creation or development of the Work, it is the general policy of the College (subject to exception approved by the President or the designee of the President) to enter into written “work for hire” agreements in which the College will obtain or retain ownership rights in the work as part of the agreement for work or services. Where the College owns the copyright in a Work, it will acknowledge creators (including creators of Works for Hire) who have made a substantial creative contribution to the work, if the creators so request in writing to the Board of Trustees or other designated authority.

Institutional Works.

Software and related documentation as well as other works created by employees at the direction of the College for College administrative support purposes, such as documents for administrative use and computer software created by non-faculty staff employee programmers of the College for use by the College are considered works for hire. However, in the sole discretion of the College, the College may execute an agreement with employees to memorialize ownership in the employee creating such works. Staff employees may be directed to develop works, including software for use by the College, and all such works are considered work for hire that is owned by the College. At the College’s request, any employee developing such works shall execute an agreement acknowledging that the work is considered a work for hire agreement recognizing ownership in the College. Any refusal to execute such an agreement following the College’s request shall not affect or otherwise change the status of the work as a work-for-hire that is owned by the College.

Pre-Existing Works.

Works developed and pre-existing at the time of employment or other relationship with the College shall be exempt from this Policy, provided that written disclosure describing the Work is made to the College within 30 days of employment or the effective date of this Policy, whichever is later, and so long as no further derivative modifications are made by the creator during the term of employment or other relationship with the College.

Special Exemption Works.

An employee may apply in writing to the College for a Special Exemption from the Policy for Works created during employment with the College where such Works are clearly distinct from the education mission of the College and are outside of the scope of employment of the employee (e.g., creation of a new cooking tool by a member of the English faculty during employment with the College). The President of the College shall designate a person or committee to review the application for exemption and make recommendation to the President of the College (or designee) who shall have the final authority to grant the special exemption for the described Work.

License for Employee Use Following Termination of Employment.

Works created or developed by College faculty, staff, employees, and/or consultants, and which Works are owned by the College shall, upon the termination of such individual’s employment (or consultation agreement, as applicable), be subject to a royalty-free, fully paid, nonexclusive license in perpetuity for the former employee/consultant to use or display the Works for non-commercial purposes.

III. License for College Use (Including Display) of Intellectual Property.
License of Intellectual Property.

All Works created or developed by College faculty, staff, or consultants that are not owned by the College shall be subject to an irrevocable royalty-free, fully paid, nonexclusive license in perpetuity for the College to use or display the works. This license shall include the right to use all associated materials and documentation (such as syllabus and other material given to students), as well as the right to modify and amend, and to develop derivative uses, including use in contexts other than originally contemplated by the creators of the Work. This license shall include the right to make copies for use in scholarship, teaching, and research. Upon request of the College, the owner of the Work shall execute agreements that memorialize this license and the rights related to it.

IV. Obligations of Faculty and Staff
Disclosure and Coordination.

In order to (i) promote advance planning and collaboration for the most effective use of the Work by the College, (ii) avoid legal issues and conflicts that can arise, and (iii) effectively coordinate use of College resources to support the creation and development of any Work, disclosure to the College of the creation of a Work (or the intention to create a Work) must be made as soon as possible, and in any event, within one hundred and twenty (120) days of the effective date of this Policy, or within sixty (60) days of the initiation of the Work, whichever is later. An important obligation of faculty and staff who desire to create a Work is early disclosure of their creative activities to their respective Dean or administrative supervisor. This disclosure must be in writing and identify the goals and proposed applications for the Work and identify all resources of the College that could be used in the creation of the Work, or to facilitate the creation of the Work.

Required Permissions.

It is the responsibility of the faculty, staff, or consultants who are creating a Work, or intending to create a Work, to ensure that the Work does not use or infringe upon intellectual property that is owned by others. If the Work does include such any such third-party intellectual property, the faculty member, staff member, or consultant, as the case may be, shall be responsible for obtaining all necessary licenses, releases, and permissions for use of the intellectual property in the Work. The College may require assurance that the Work does not infringe upon the intellectual property rights of others, which shall be promptly provided. All faculty, staff, and consultants shall indemnify the College and hold it harmless against all costs, including court fees and attorneys’ fees, that the College incurs as a result of any claim that the Work infringes on the intellectual property belonging to a third party, and shall take all such remedial steps in connection therewith as requested by the College.

Conflicts of Commitment; Conflicts of interest.

Independent of ownership, and subject to any policies of the College regarding conflict of interest or conflict of commitment, a member of the faculty or staff may create Works at or for other academic institutions only with permission of the President or the President’s designee, and generally then only as part of ordinary scholarly exchanges, including visiting Instructorships and guest lectures, as long as these activities do not include or allow the commercialization of any course content, courseware or other teaching or research-related activities created or conducted at another institution, unless the Works are also licensed to the College for use in the same manner as provided herein for Works that are created at the College. The requirement for permission and prohibition on conflict of commitment and conflict of interest activities as they may apply to such Works shall extend for the term of employment, and in the case of software, for a period of three (3) years after the date of termination of the faculty or staff member’s employment by the College. The requirement for permission shall not apply to sales of developed Works to third parties so long as the member of the faculty or staff does not participate in rendering services in connection with the Work (e.g., in the sale of software consisting of courseware and course content, a faculty member may not physically present the course at another institution or through another entity other than the College, except with permission).

V. Royalty and Revenue Sharing
Net Revenue Sharing.

The College shall be entitled to share in revenue generated by sales of any Work outside of the College in the amount of five percent (5%) of the Net Revenues generated by such sales. “Net Revenues” shall be determined by subtracting from gross sales the costs of development, including attorney fees and accounting costs, together with costs of goods and marketing. The College shall be offered access to the books and records relating to the sales of the Works outside of the College at least once per year, together with such documentation of costs and expenses as the creator may wish to present or that the College requests. There is no requirement that the College exercise the right to access and review, and any to do so shall not constitute a waiver of any rights. Royalty payments shall be calculated on a quarterly basis and paid to the College within thirty (30) days following the quarterly report of sales and royalties due

Title and Ownership.

Title and ownership to the Works is unaffected by the revenue sharing provided in this Policy. Any transfer of ownership in any Works, direct or indirect (through stock transfers, etc.), shall not affect the right of the College to receive royalties, and notice of such transfers shall be given to the College (including name and address of all transferees).

VI. Miscellaneous Provisions
Use of College Name or College Marks.

Use of the College’s name or the College's Marks in connection with a Work, other than by way of identification of the creator as a member of the faculty, staff, or student at the College, constitutes use of a valuable College asset, requiring separate prior specific written permission from the College. Use of the College’s name or the College's Marks can affect the reputation and academic standing of the institution and the value of the College’s Marks, and can constitute a misuse of a public resource in certain situations. Faculty, staff, and students may not participate in the creation or use of works that might give the impression of College sponsorship unless there is specific written permission from the College. Any uses of the College name or the College's Marks (other than to identify the creator by his or her title at the College) in connection with a Work created by a member of the faculty, staff, or consultant, or by a student, must be approved in in writing in advance by the College.

Documentation regarding Rights of Use; Ownership.

The College and creators of works will cooperate in the execution of documentation that will establish and confirm rights of use, title, and ownership consistent with this policy. Each will execute such documentation as may be necessary to establish such respective interests in the works.

Attribution for Original Created Work.

All faculty, staff, consultants, and employees who use works created by other employees under this policy and procedure shall include a "created by" citation that gives credit to the original creator(s) of the work.

Application of Policy to Students.

This Policy shall apply to IP and Works created by students enrolled at the College using College resources, and the College shall be the exclusive owner of all such Works. The College shall use best efforts to make students aware of the applicability of this policy to students and their rights under it. Notwithstanding the foregoing, the College may, in its sole and absolute discretion, enter into a written contract with a student that establishes rights to the Work.

VII. Administration and Dispute Resolution

This Intellectual Property Policy and any disputes regarding the application of this Policy shall be administered by the Vice President of Academic Affairs and Student Services. Disputes that are unable to be resolved by the Vice President of Academic Affairs and Student Services shall be referred to the President of the College for final resolution. Within thirty (30) days of receiving notice of a dispute requiring the President’s resolution, the President shall advise the Board of Trustees in writing of the existence and nature of the dispute. Questions regarding forms of agreements and contracts shall be referred to the general counsel of the College.

VIII. Sales of Works Owned by the College
Right to Sell.

The College may sell intellectual property and Works owned by the College upon such terms and conditions as the Board of Trustees may deem appropriate. Such intellectual property may be sold on or off-campus.

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