UNIVERSITY PATENT AND COPYRIGHT POLICY

PATENT AND COPYRIGHT COMMITTEE (79) 

The President of the University shall establish an eight member Patent and Copyright Committee. There shall be two ex officio members with voting privileges, appointed by the President, one of whom shall be that person assigned to administer the University Patent and Copyright Policies and the procedures of sponsors. Four faculty members shall be appointed by the President for terms of up to three years each, upon recommendation of the University Senate. One professional personnel representative from a service unit of the University shall be appointed by the President for a term of up to three years, upon recommendation of the University Senate. The terms of the Senate-recommended members shall be staggered to provide that at least one new member per year will be appointed to the Committee. One student shall be appointed for a term of one year by the President upon recommendation of the Student Government Association. Members of the Committee will be charged with reviewing in confidence patent and copyright disclosures referred to it, performing other duties assigned to the Committee by either the Patent Policy or the Copyright Policy, and making recommendations to the President of actions to be taken in the best interests of the University and author or inventors.

UNIVERSITY PATENT POLICY

Research is an integral and inseparable part of the life at Ball State University. This concept is clearly delineated in the mission statement of the University. In conducting research, often improved or new devices, product designs or processes are developed. Just as Ball State recognizes its responsibility to encourage research among its faculty, professional personnel, other employees, and students, it also recognizes its responsibility to protect the interests of these people, the interests of the University, and those of the general public in all matters pertaining to inventions and discoveries. The University, furthermore, is responsible for fulfilling the terms of contracts and grants with external funding agencies and for increasing the University's research facilities by means of its portion of the income derived from such inventions. As conceived by this policy, the term "invention" shall be deemed to include all inventions, discoveries, computer programs, processes, machines, methods, uses, manufacturers, compositions of matter, plants or designs, whether or not patented or patentable at any time under the Federal Patent Act as now existing or hereafter amended.

1. Disclosure: Whenever a faculty member, professional personnel or other employee, or student creates a work that may be patentable and is, or may be, owned by the University, he or she shall disclose the existence of the work in writing to the University's Executive Director of Academic Research and Sponsored Programs. The written disclosure should be made as soon as practical, but shall be made not more than thirty (30) calendar days after the work is completed.

2. Administrative Action: After receipt of the written disclosure, the Executive Director of Academic Research and Sponsored Programs may take one or more of the following actions:

2.1 Refer any questions concerning patent ownership, patent assignment, or royalties to the University Patent and Copyright Committee.
2.2 In due course, register the patent with the United States Patent Office, if applicable.
2.3 Inform appropriate third parties (e.g., external funding agencies) of the creation of the patentable work.
2.4 Recommend to the University, after consultation with the Patent and Copyright Committee, other University action concerning the patentable work.

3. After review by the Patent and Copyright Committee, if it is determined that the University has a substantial interest in such invention or thing with patent potential, the inventor shall be required by the terms of the patent agreement to assign all rights to the invention or thing with patent potential to Ball State University or to some external granting agency if acceptance of that agency's support carried with it the obligation to assign all rights to said agency. In those instances where University funds, facilities, assigned time, or materials are used by a member to facilitate the contrivance of an invention or any other thing with patent potential, the University will be deemed to have an interest in the invention or thing with patent potential. For the purpose of this policy, University funds will be considered to include monies from state appropriations and all other such sources.

4. When an invention or other thing with patent potential has been determined to result from individual effort not involving use of University funds, assigned time, or materials and not resulting from any research program involving University funds, facilities, the invention or other thing with patent potential shall be the sole property of the inventor. For such cases, the name of Ball State University shall not be used in connection with the invention or its marketing.

5. It is a policy of Ball State University that the inventor share in any proceeds from the invention, even though it arises from a University-administered program of research. In arranging for the development of an invention, the University will protect the rights of the inventor to share in income derived from the invention.

6. When the administration of a patent in which Ball State University has an interest results in the accrual of income, the nature and amount of the share of the income shall be evaluated by the Patent and Copyright Committee which shall recommend to the President of the University a proposed royalty allocation; provided, however, the first fifteen hundred dollars ($1,500) of income shall be paid to the inventor. After payment of the first fifteen hundred dollars ($1,500) to the inventor, the University shall have the right to recover all of its direct costs and expenses (e.g., production and development costs, marketing expenses, commissions, legal fees) for the invention before sharing any additional income with the inventor. After the University has recouped its expenses, any further revenues generated by the inventor or faculty or professional personnel, other employees, and students who originated the patentable invention shall receive a minimum of 50% of any additional revenues or may negotiate for a higher percentage. If there is more than one inventor for the patented work, the fifteen hundred dollars ($1,500) and other share of income shall be divided between or among them as they may agree in writing. In the absence of such a written agreement, the inventors shall attempt to reach agreement among themselves as to the fair and equitable allocation of royalties among them based upon their relative contributions to the invention. If they fail to reach agreement, any one of the inventors may request that the Patent and Copyright Committee evaluate the relative contributions of the inventors and propose an appropriate royalty allocation. Upon a proper request from an inventor, the Patent and Copyright Committee shall select a meeting date to consider the relative contributions of the inventors and the appropriate royalty allocation. Each inventor involved shall be notified in writing of the meeting date and time and shall be given the opportunity to attend the meeting and to present evidence concerning his or her contribution to the invention. Based upon the evidence presented, the Patent and Copyright Committee shall then recommend a proposed royalty allocation to the President. Within five (5) days of this recommendation by the Patent and Copyright Committee, any of the inventors may appeal the recommendation to the Provost and Vice President for Academic Affairs. The Provost and Vice President for Academic Affairs shall then review the recommendation of the Patent and Copyright Committee and all supporting evidence. The Provost and Vice President for Academic Affairs may also request that the inventors provide any other evidence deemed useful or appropriate. The Provost and Vice President for Academic Affairs shall render his or her decision regarding the recommendation within ten (10) days of the inventors' request for appeal.81

7. The University shall have the right, on recommendation of the Patent and Copyright Committee, to enter into exclusive or non-exclusive agreements with not-for-profit organizations specializing in patent assistance to universities.

8. Inventions resulting from research by faculty, professional personnel, other employees, or students (see paragraph 4) may be offered to the University. In the event that the University accepts and administers an invention, it will be in accordance with University Patent Policy. The inventor shall receive such income as may be set forth in a written agreement.

9. All University faculty, professional personnel, other employees, or students are required to execute promptly all legal documents necessary to invest in the University, or its assignees, any or all rights to carry out the provisions of this patent policy.

10. Interpretation of this patent policy or disputes on patent matters which cannot be resolved between the Patent and Copyright Committee and the inventor shall be referred to the President of the University for determination. Appeals from the determination of the President may be made by any interested party to the Ball State University Board of Trustees.

11. This policy may be amended subject to the approval of the University Senate, the President of the University, and the Ball State University Board of Trustees.

12. This policy, as amended from time to time, shall be deemed to be part of the conditions of employment of every employee of the University and a part of the conditions of enrollment and attendance of every student of the University.

BALL STATE UNIVERSITY COPYRIGHT POLICY (82)

I Introduction

Ball State University encourages the creation of copyrightable materials by its employees and students. The University is committed to the dissemination of knowledge and creative work for the public good through open communication and publication. If the University receives income from copyrightable materials it owns, it is committed to sharing this income with the authors of the materials and, when applicable, with those whose support has made the creation of the materials possible.

The law governing copyright is contained in the United States Copyright Act of 1976, as amended, 17 U.S.C. section 101 et seq. The Act provides that "works made for hire" include copyrightable materials prepared by employees "within the scope of their employment" and that the employer is the owner of the copyright of such materials unless both the employer and the employee have signed a written agreement to the contrary. One of the purposes of Ball State University's policy is to maintain the historic, but unwritten, practice of the University that employees and student authors own the copyrights associated with their creative or scholarly materials when they are not considered to have been created within the scope of their employment by the University, while at the same time protecting the University's, and any sponsor's, interest in copyrightable materials of which its employees or students are the authors.

This copyright policy addresses three issues: (1) ownership of copyrightable materials created by University employees and students; (2) use of such materials by the University, and (3) the sharing of royalties. Compliance with this policy as amended from time to time shall be a condition of the employment of every employee of the University and of the enrollment and attendance of every student at the University.

II Definitions of Terms as Used In This Policy

1. Author. A person who creates copyrightable material in any form; a copyrightable work may have more than one author.

2. Copyright. The exclusive right to reproduce, distribute to the public (by sale, rental, or other method), publicly display, revise, prepare a derivative work from the product of artistic or intellectual effort, or to authorize another to perform any of these actions; also, as a verb, to carry out the procedure by which one legally secures this right.

3. Copyright assignment. The transfer of one or more of the ownership rights in a work from the copyright owner to another person.

4. Copyright license. Written permission to use copyrighted material; it is usually limited to a particular period of time or a specific use.

5. Copyrightable material. Anything which, under the United States Copyright Act, may be copyrighted, including (but not necessarily limited to) written work; lectures and other works prepared for oral delivery; musical and dramatic works; motion pictures; photographs, drawings, and other pictorial representations; sound recordings; computer programs, instructions, and other software. Copyright protection does not extend to ideas, procedures, processes, systems, methods of operations, concepts, principles or discoveries, even if presented in a copyrightable form.

6. Create. To fix copyrightable material in a tangible medium of expression for the first time. If copyrightable material is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the copyrightable material at that time; if copyrightable material has been prepared in a different version, each version constitutes separate copyrightable material.

7. Faculty and faculty member. For purposes of this policy only, any employee of the University who
7.1 holds one of the basic academic ranks of instructor, assistant professor, associate professor, or professor in an academic department and whose primary responsibilities as an employee are within that department;
7.2 holds one of the other ranks of lecturer, visiting professor, or adjunct professor in an academic department and whose primary responsibilities as an employee are within that department; or
7.3 is a post doctoral fellow.

8. Fair use. A use of copyrighted material for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, which is not an infringement of copyright. Demonstration of such purpose is not sufficient to sustain a claim that the use is "fair" the specific facts of the case must be considered in terms of the following: (1) the purpose and character of the use, including whether or not it is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use upon the potential market for or value of the work.

9. In the public domain. Outside copyright protection; copyrightable material is said to be "in the public domain" if it is available for use by anyone at any time without explicit authorization.

10. Publication. The public distribution of copies of a work (including the original) by sale or other transfer of ownership, or by rental, lease or lending. Although public performance or display of a work does not of itself constitute publication, the offer to distribute copies to a group of people for purposes of further distribution, public performance, or public display does constitute publication.

11. Royalty. A payment made to the owner of a copyright for the use of any of the exclusive rights of copyright ownership.

12. University resources. University-controlled funds, staff, equipment, and facilities--especially those of technical production units, such as University publications, radio, television, recording facilities, computing services, audiovisual, photocopying, and media services.

13. Work made for hire. Copyrightable material prepared by an employee within the scope of his or her employment; or a specially ordered or commissioned work that the parties concerned expressly agree in a written and signed instrument to be a work made for hire.

III Ownership of Copyright

1. Ownership. Ownership of the copyright of copyrightable materials created by employees or students of the University shall be determined according to the following provisions.

1.1 Employees. (a) If the copyrightable material is created by an employee pursuant to an agreement between the University and a third party (e.g., a government agency or a publisher), copyright ownership shall be governed by the provisions of that agreement. (b) If the copyrightable material is created by an employee within the scope of employment duties; or as the result of a specific assignment; or as the result of a special project funded, in whole or in part, by the University; or if the University subsequently decides to fund the publication of the material, the University will own the copyright. For purposes of this copyright policy (and only for these purposes), a faculty member's general obligation to produce scholarly works is not considered to be "within the scope of his or her employment." (c) Copyright in copyrightable materials created by an employee but not subject to (a) or (b), above, shall be owned by the author. For example, copyrightable materials produced outside the scope of his or her employment and without the use of any University resources shall be owned by the employee.
1.2 Students. (a) If the copyrightable material is created by a student pursuant to an agreement between the University and a third party (e.g., a government agency or a publisher), copyright ownership shall be governed by the provisions of that agreement. (b) If the copyrightable material is created by a student who is an employee of the University, e.g., a graduate assistant, ownership of copyright in the material shall be determined by the provisions of (1), above, as for other employees. (c) Copyright in copyrightable materials created by a student, but not subject to (a) or (b), above, shall be owned by the author. For example, copyrightable materials outside the scope of his or her employment and without the use of any University resources shall be owned by the student.

2. Variations from Policy. Copyright ownership may be changed from that established by this policy provided that: (1) the University and author sign a written instrument establishing the change; and (2) the written instrument is signed before the material is created. Such instruments may be signed on behalf of the University by the president (or by such person or persons as the president may designate from time to time in writing). The author may initiate this process by consulting his or her immediate supervisor.

3. Assignment of Copyright. This policy does not preclude an employee or student copyright owner from assigning any or all of his or her rights in copyrightable materials to the University if both parties believe that such action is to their benefit. Similarly, this policy does not preclude the University from assigning any or all of its rights in a copyrightable work to the author if both parties believe that such action is to their benefit, nor does it preclude the copyright owner from assigning any ownership rights to another party.

IV Disclosure by Author; Subsequent Administrative Action

1. Disclosure. Whenever an employee or student of the University creates copyrightable material that is, or may be, owned by the University or a third party under Section III of this policy, the employee or student shall disclose the existence of the material in writing to the University's Executive Director of Academic Research and Sponsored Programs. The written disclosure should be made as soon as practical after the author knows the material is to be created, but shall be made not more than thirty (30) calendar days after any portion of the material has been created.

2. Administrative Action. After receipt of the written disclosure, the Executive Director of Academic Research and Sponsored Programs may take one or more of the following actions:

2.1 Refer any questions concerning copyright ownership, copyright assignment, or royalties to the Patent and Copyright Committee;
2.2 In due course, register the copyright with the United States Copyright Office;
2.3 Inform appropriate third parties (e.g., funding agencies) of the creation of the copyrightable materials;
2.4 Recommend to the president, after consultation with the Patent and Copyright Committee, other University action concerning the copyrightable material.

V Use and Sale by the University; Royalties

1. Use and Sale. When the University owns the copyright of materials created by a University employee or student, the University shall have the sole right to:

1.1 Determine whether or not to register its copyright ownership with the United States Copyright Office, to take other appropriate action to protect its interests in the material, or to place the material in the public domain;
1.2 Determine the manner in which the material is to be distributed or used by others, if at all, and the charges, if any, to be imposed for such distribution or use.

The University shall provide for the disclosure of appropriate credits and shall consider the wishes of the author of the material concerning presentation, distribution, revision, and updating of the material.

2. Royalties. Although the University does not need to require the payment of royalties or other monetary consideration for use of the material or the University's granting of any of its ownership rights to any other person or organization, if the University does receive royalties or other monetary consideration for copyrighted materials created by its employees or students, it is the policy of the University that the author of the material will share in the income the University receives as a result of its copyright ownership of the materials.

If the University chooses to protect its ownership rights in copyrightable material through a means other than copyright (e.g., confidential disclosure and licensing of a computer program), it is the policy of the University that the author of the material will share in the income the University receives as a result of its use of the other means of protection.
The nature and amount of the share of the income to be paid to the author shall be evaluated by the Patent and Copyright Committee. Based upon recommendation of the committee, the President of the University shall determine a royalty allocation; provided, however, that the first fifteen hundred dollars ($1,500) of income received by the University shall be paid to the author. After payment of the first fifteen hundred dollars ($1,500) of income to the author, the University shall have the right to recover all of its direct costs and expenses (e.g., production and development costs, marketing expenses, commissions, legal fees) for the material before sharing any additional income with the author. If there is more than one author of the copyrighted materials, the fifteen hundred dollars ($1,500) and other share of income shall be divided among them as they may agree in writing. In the absence of such a written agreement, the authors shall attempt to reach agreement among themselves as to the fair and equitable allocation of royalties among them based upon their relative contributions to the material. If they fail to reach agreement, any one of the authors may request that the Patent and Copyright Committee determine the relative contributions of the authors and the appropriate royalty allocation. Upon a proper request from authors, the Patent and Copyright Committee shall select a meeting date to consider the relative contributions of the authors and propose an appropriate royalty allocation. Each author involved shall be notified in writing of the meeting date and time and shall be given the opportunity to attend the meeting and to present evidence concerning his or her contribution to the material. Based upon the evidence presented, the Patent and Copyright Committee shall then recommend a proposed royalty allocation to the President. Within five (5) days of this recommendation by the Patent and Copyright Committee, any of the authors may appeal the recommendation to the Provost and Vice President for Academic Affairs. The Provost and Vice President for Academic Affairs shall then review the recommendation of the Patent and Copyright Committee and all supporting evidence. The Provost and Vice President for Academic Affairs may also request that the authors provide any other evidence deemed useful or appropriate. The Provost and Vice President for Academic Affairs shall render his or her decision regarding the recommendation within ten (10) days of the authors' request for appeal.83

VI Use and Sale of Materials Owned by Authors

When the author owns the copyright he or she is free to assign, license, sell, or otherwise transfer or use any of his or her rights in the materials on such terms as the author believes to be beneficial to him or her.

VII Use of University Resources

Even if the author will own the copyright under this policy, reasonable use of University resources in the creation of the materials still may be appropriate. Such use should not be excessive or interfere with normal University activities. Before using the resources, the author should consult with his or her immediate supervisor or the person responsible for the resources involved, or both, about the limit of reasonable use of the University resources involved. Differences of opinion concerning reasonable use of University resources should be referred to the Executive Director of Academic Research and Sponsored Programs for referral to the Patent and Copyright Committee; the final decision concerning use of the resource shall then be made by the president of the University after receiving the advice and recommendations of that committee.

VIII Originality

Employees and students of the University who create copyrightable materials are responsible for assuring that the material they create is original and that no material copyrighted by others has been or will be knowingly included in the material they create unless (1) the use of the material copyrighted by others constitutes "fair use" within the meaning of the United States Copyright Act; or (2) the written consent of the copyright owner of such material has been obtained.