INSTRUCTIONAL MATERIALS: USE, OWNERSHIP AND CONTROL OF

No: S-32

Date: January 1998

Authority: UWS GAPP #27 (rev. 11/24/97)
                  (Also see S-14, Copyrights)


  1. Background

    The following guidelines provide that certain materials may be copyrighted in the name of the Board of Regents of the University of Wisconsin System.

    These guidelines are an effort to bring into focus some of the underlying issues involved in the ownership and copyrighting of instructional materials. This is necessary because an institution of the University of Wisconsin System (universities, colleges, or extension), with greater frequency, may have a direct interest in certain instructional materials because substantial public resources have been used in their creation and production or because the author(s) contracted with an institution specifically to develop the materials. An example of this would be a written agreement between the institution and the author(s) with the specific, stated intention that a videotaped lecture series with a published course outline and bibliography would be produced at the institution's expense.

    These guidelines do not assert a UW System property interest in materials which result from the activities of the author(s) in the pursuit of traditional teaching, research, and scholarly activities. Production of these materials, including theses, scholarly articles, journal articles, research bulletins, monographs and books, may be implicit in the author's role as a UW System employee and should be contrasted with instructional materials produced pursuant to an explicit agreement where the author acts under contractual agreement to produce copyrightable materials.

    Resolution of the interests of the UW System1 and of the author(s)2 must be on a case-by-case basis, applying the principles and considerations of these guidelines.

  2. Copyrightable Materials

    Copyrightable instructional materials include, but are not limited to, the following: books, texts, glossaries, bibliographies, study guides, laboratory manuals, syllabi, and tests; lectures, musical or dramatic compositions, and scripts; films, filmstrips, slides, charts, transparencies, and other visual materials; video and audio recordings of presentations, programs, or performances; programmed instructional materials and computer programs; computer software; and educational multimedia projects incorporating various copyrighted media formats including, but not limited to, motion media, music, text material, graphics, illustrations, photographs, and digital software which are combined into an integrated presentation.

  3. Developmental Conditions

    A.   Copyrightable instructional materials may be produced or developed under the following five conditions:

    1) No UW System support or involvement;
    2) minimal UW System support or involvement;
    3) substantial UW System or institutional support and involvement;
    4) an assigned duty or pursuant to a work-for-hire agreement;
    5) support from an extramural sponsor.

    B.   "Minimal," as used in this policy, includes the use of university laboratories or equipment but does not include released time from regularly
           assigned duties.

    C.   "Substantial," as used in this policy, includes, for example, released time from regularly assigned duties; direct investment by the university of
           funds or staff, or the purchase of special equipment for the project; use of multimedia production personnel and facilities; or extraordinary
           use of computing resources.

  4. Ownership Interests

    A. It is the policy of the UW System that copyrightable materials produced as stated in 3.A.(1) and (2) above belong solely to the author.

    B. Materials produced with substantial institutional support (as in 3.A.(3) above) are required to be the subject of a written understanding or     agreement between the author and the chancellor or his/her designee that equitable determines copyright and ownership rights. A sample
        agreement is included at Attachment A to this policy. If the institution chooses in writing not to assert a copyright interest to which it has a
        right, the author may do so in his/her own name.

    C. When the production of copyrightable materials is a primary purpose of employment or independent contractor relationship (as in 3.A.(4)
         above), the institution shall own all rights and a written "work-for-hire" agreement shall be executed. A sample "work for hire" agreement is
         included as Attachment B to this policy. Fair payment shall be made to the author, and the institution shall receive all rights to the materials
         and receive all royalties and fees.

    D. When such materials are produced as an assigned duty of employment, the institution shall own all rights and receive all royalties and fees,
         except where a contrary agreement has been reached between the author and the chancellor of his/her designee prior to the beginning of
         the project.

    E. When copyrightable materials are produced with extramural support, (in 3.A.(5) above), the agreement with the extramural sponsor shall be
        considered in determining the copyright and ownership rights of the parties.

  5. Contractual Guidelines

    Conditions of production, use, and final disposition of copyrightable materials will vary from time to time. Where such materials are to be produced under the conditions specified in 3.A.(3) and (4) of this policy the author and the producing agency must develop a written agreement defining the rights and responsibilities of all principal parties to be signed by the author and the chancellor or his/her designee prior to the beginning of production. Such an agreement may also be appropriate when copyrightable instructional materials are produced under the conditions specified in 3.A.(5) of this policy. In addition to establishing ownership interests in accordance with section 4. Of this policy, all such agreements should reflect the following principles:

    A.  Author and Institutional Responsibilities

      1. Suitability and relation of the project to the academic mission of the institution shall be determined by the chancellor or his/her designee.

      2. The sponsoring department or functional equivalent shall designate an individual ("the responsible individual") to assume responsibility for the content and structure of the project.

      3. The responsible individual will be responsible for obtaining clearances or any necessary permission for the use of previously copyrighted materials which are planned for inclusion in the project. A sample permission request form is attached to this policy at Attachment C.

      4. The responsible individual is also responsible for obtaining any necessary agreements, waivers, and releases of rights from project participants in connection with their contributions to the project.

    B.   Internal Use

      1. "Internal" is defined as all University of Wisconsin institutions, Extension, and UW System Administration by any means including broadcast, closed circuit television, compressed video, digital software, multimedia formats, or other means of distance learning.

      2. Agreements developed under this policy should address internal use, providing that any charges by UWM to other UW System institutions for internal use of copyrightable instructional materials be limited to reflect actual direct costs, incurred such as: production, promotion, handling, and duplicating. Internal use and sharing of materials should be encouraged.

    C.   External Distribution

      1. Distribution external to the UW System may occur either through direct rental, sale, or licensing by UWM or its designee or through commercial rental, sale, or distribution by a third party publisher under an agreement for payment of royalties.

      2. Release of instructional materials for external distribution shall be negotiated between the institution and the author. When possible, the results of the negotiating process shall be incorporated into the written contract prior to beginning of production. Since all future uses cannot be anticipated, provision should be made in the contract to assure that uses for external distribution could be arranged upon further negotiation.

    D.   Revision or Withdrawal

    Where the Board of Regents of the UW System owns a copyright interest in instructional materials on behalf of UWM, the materials should receive timely and periodic review by users and producers to ensure currency and relevance consistent with the following:

      1. The instructional materials shall not be altered or revised without consultation with the author.

      2. If the institution continues the use and/or the authorization of use by others of materials contrary to the recommendation of the author, it shall not be advertised or presented as the author's work, except to the extent appropriate to acknowledge the author's participation in the original production of the copyrightable materials.

      3. The author shall be offered the opportunity to assume responsibility for the revision of the instructional material. If the author declines, the assignment of responsibility will be made by the Chancellor or his/her designee.

      4. The author should be consulted when instructional materials are considered for uses other than the one for which they were produced.

  6. Remuneration Issues

    A.   Production
    1. A sponsoring department or its functional equivalent may grant released time from regularly assigned institutional duties to an author of copyrightable instructional materials.

    2. Released time under this section would normally be granted in the stages of planning, production, presentation, evaluation, and revision.

B.   Allocation of Financial Benefits of External Distribution

    1. The financial benefits of external distribution of copyrightable materials produced under the conditions specified in section 3.A.(3) shall be shared by the sponsoring department(s) or functional equivalent, the author, and the institution, with a portion of the institution=s share designated for the production group.

    2. Two schedules of revenue distribution based on (a) pre- and (b) post- amortization of costs should be established as follows:
    3. a)   Preamortization. A reasonable pattern of distribution prior to amortization provides an approximate return of ten percent
           of gross receipts to the author. Ninety percent is retained for distribution to the department or functional equivalent, the
           production unit, and the institution for amortization of their contributions.

      b)   Postamortization. After amortization, the author's share of receipts should increase to approximately twenty-five percent
            of gross receipts.

    4. It is recommended that the department's or functional equivalent's share of the receipts be used for support of teaching load adjustment necessitated by production, or development of new course materials and/or the revision or improvement of the original project.

    5. Any distribution of gross receipts agreed upon in accordance with this policy paper shall continue under the terms of the agreement, regardless of the author's termination from employment with UWM.

C.   Outside Resource Person

Fees for outside consultant(s) or other participants in a project shall be negotiated between the responsible author and the consultant or participant. Any agreement for the payment of fees shall include a waiver by the consultant or participant of any ownership interest, including any copyright or other intellectual property interest in the resulting materials.

   7. Administration and Review of Guidelines

A.   Administration of these guidelines shall be vested in the Chancellor or his/her designee.

B.   These guidelines may serve as the basis of contract between the author and UWM.

C.   These guidelines may serve as the basis on contract between the author and UWM.

 


1 Ownership interests acquired by the UW System under this policy vest and are taken in the name of "The Board of Regents of the University of Wisconsin
   System."
2 "Author" as used in this policy means the authors, artists and other creators of instructional materials and may include faculty, staff, or students who, as a regular
    part of the instructional program, become participants in the creation of copyrightable materials.




ATTACHMENT A

SAMPLE COPYRIGHT AGREEMENT AND ASSIGNMENT

This agreement is between the Board of Regents of the University of Wisconsin System on behalf of the University of Wisconsin-Milwaukee, Department (or School) of ______________________


(hereinafter "UW-Milwaukee" and___________________ , [hereinafter "Author(s)"].

Whereas it is the policy of the UW-Milwaukee to disclaim copyrights to the Works produced by its employees created during the course of their employment except as stated in General Administrative Policy and Procedure Paper #27 (hereinafter GAPP 27); and

Whereas the parties agree that an exception, [substantial university support/extramural funding] applies to a specific Work (to be) created by the Author(s) and the UW-Milwaukee claims a copyright interest in the Work:

Now, therefore, in consideration of the mutual promises contained herein, the parties agree as follows:

1.   The "Work" for purposes of this agreement is described as:

____________________________________________________

____________________________________________________

____________________________________________________

2.   The Author(s) agree(s) that all right, title, and interest in the Work, including subsidiary rights and the right to maintain copyright in the name of the
      Board of Regents of the University of Wisconsin System, is, or shall be by assignment through this agreement, exclusively vested with
      UW-Milwaukee.

3.   The Author(s) warrant:

  1. that the Work does not infringe any valid copyright or other property right of any other person;
  2. that the Author(s) have the power to convey all rights granted and assigned in this agreement;
  3. that the Work contains no libelous, defamatory or other unlawful material and Author(s) (jointly and severally) agree(s) to hold UW-Milwaukee harmless from any claim, suit or proceeding based on the grounds that the Work contains such harmful
    matter, and agrees to indemnify UW-Milwaukee for reasonable expenses incurred in defending, settling, or otherwise responding to such claims; and that the copyright has not been assigned previously nor the Work published.

  4. If the work includes any copyrighted material not in the public domain, the Author(s) will obtain permissions for the use of such material, and provide copies of such permissions to UW-Milwaukee before the Work is published. The cost for obtaining the permission shall be borne by the [Author(s)/UW-Milwaukee][choose one].

  5. If UW-Milwaukee intends to revise or publish future editions of the Work, it hereby grants the right of first refusal to the Author(s) to modify or edit the Work on behalf of UW- Milwaukee. If Author(s) do(es) not provide an acceptable revision within a reasonable time or should Author(s) be deceased, unable or unwilling to revise the Work, UW- Milwaukee may have the revision or edition prepared and may deduct the authorship cost from the Author(s) royalties. UW-Milwaukee agrees that the Author(s) shall have an opportunity to read and correct the edited or modified manuscript in proof if the Author(s) so request(s) in writing within ten (10) days of the completed revisions or edition by UW-Milwaukee. UW-Milwaukee will consult with Author(s) when the Work is considered for use other than the ones for which they were produced. If UW-Milwaukee continues the use of the Work or authorizes its use by others contrary to the recommendation of the Author(s), UW-Milwaukee shall not advertise or present the Work as the work of the author.

  6. The Author(s) will not, without written consent of UW-Milwaukee publish any abridged or other version of the Work, any derivative work, or any Work of a similar character tending to interfere with sales of the Work covered by this Agreement. Such consent will not be unreasonably withheld.

  7. When the Work is complete and acceptable for publication, UWBMilwaukee shall perform, at its discretion, reasonable efforts to market the Work.

  8. A royalty statement shall be prepared by UW-Milwaukee as of [ date ] of each year of publication, and within _____ days thereafter UW-Milwaukee shall pay the appropriate royalty based on the following schedule:
    Prior to recovery of UW- ______________costs:
    Author(s)                    10%*
    UW-Milwaukee        90%

    *NOTE: Multiple authors will share this amount as agreed to among themselves and give written notice to UW-Milwaukee of their agreement.

    After recovery of UW-Milwaukee costs:
    Author(s)__________ [25] _______ %*
    Department __________________ %
    [School] ____________________ %

    The distribution of royalties to Author(s) shall continue under the terms of this Agreement regardless of the Author(s) termination of employment with UW-Milwaukee.

  9. Notwithstanding the above, royalty accounting and payments will be discontinued when, for two (2) successive royalty periods, earned royalties from all sources do not exceed [twenty-five ($25.00)].

  10. If UW-Milwaukee determines that further publication of the Work is not desired it shall have the right to terminate this Agreement by sending written notification to the Author(s). Upon such termination, the Author(s) may request in writing that UW-Milwaukee assign the copyrights to the Author(s). Approval of such request will not be unreasonably withheld.

  11. This agreement and its attachments, if any, incorporated herein, constitute the entire understanding between the parties with respect to the subject matter hereof and supersedes any and all prior understandings and agreements, oral and written, relating hereto, and may be amended at any time only in a writing signed by both parties.

  12. The delay or failure of any party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights, nor shall the same be deemed to be a waiver of any subsequent breach, either of the same provision or otherwise.

  13. This agreement shall be governed by and construed under the laws of the State of Wisconsin, which shall be the forum for any lawsuits arising from or incident to this Agreement.

IN WITNESS THEREOF, the parties have accepted and executed this Agreement on the dates indicated below.

For the Board of Regents of the
Author(s)
University of Wisconsin System  
on behalf of UW-Milwaukee:  
   
_____________________
___________________
Date ___________
Date __________

 

ATTACHMENT B

SAMPLE WORK-FOR-HIRE AGREEMENT

AGREEMENT FOR PERSONAL SERVICES

This agreement is between the Board of Regents of the University of Wisconsin System, on behalf of UW-Milwaukee (hereafter, "UW-Milwaukee" and _________________ (hereafter, "Contractor"). For and in consideration of the mutual promises set forth below, the parties agree:

  1. Contractor shall [here insert a detailed description of the work to be performed by and the specific duties and responsibilities of the contractor].

  2. Contractor acknowledges that all services [he/she] provides under this Agreement are provided as an independent contractor on a work-for-hire basis. Copyright in any work resulting from the performance of the services under this agreement shall vest and be held in the name of the Board of Regents of the University of Wisconsin System.

  3. UW-Milwaukee shall pay to Contractor the total amount of $____________ for his/her services, as follows: [here describe the timing of payments and other relevant payment terms].

  4. Contractor agrees that all work under this Agreement shall be completed on or before ______________. In the event that Contractor fails to complete the work by that date, UW-Milwaukee may, at its option, extend this Agreement for a fixed period of time it determines to be appropriate. In the alternative, UW-Milwaukee may obtain the services of another contractor to perform the work described in paragraph 1, in which case the Contractor shall provide UW-Milwaukee with all work produced to the date of UW-Milwaukee's election under this paragraph.

  5. Contractor warrants that all materials furnished and used under this Agreement are his/her own original works or materials for which he/she has obtained ownership of the copyright. Contractor further warrants that the materials do not infringe on any copyright, common law right, or proprietary right of any third party.

  6. UW-Milwaukee will acknowledge Contractor's contribution to any copyrighted work resulting from the performance of services under this Agreement.

  7. To the extent permitted by Wisconsin law, the parties agree to save, hold harmless and defend each other and their respective agents, employees and officers against any and all liability claims and costs of whatever kind or nature, for injury to or death of any person or persons, and for loss or damage to any property or property interest or loss of personal interests occurring in connection with or in any way incidental to or arising out of such actions or any activities associated with the terms of this agreement.

Accepted and executed by the parties on the dates indicated below:

_______________________________ ____________________________________
Contractor Board of Regents of the University of
  Wisconsin System on behalf of UW-
  Milwaukee, by [name of contracting] officer
   
Date ________________ Date _______________

 

ATTACHMENT C

SAMPLE LETTER REQUESTING PERMISSION TO USE COPYRIGHTED MATERIALS

Dear [copyright holder]:

UW-Milwaukee requests permission to copy and use the following material:

Title:

Author/Editor:

Edition to be duplicated and year of copyright:

Material to be used [i.e., amount, page numbers, chapters of the material]:

Period of intended use:

Method of reproduction:

Nature and purpose of use [teaching, research, etc.]:

Form of distribution:

Whether or not the material will be sold:

Number of copies:

Please advise me not later than ___________________, whether permission is denied, granted or conditioned on any specific additional terms.

Thank you for your assistance.

Sincerely,

 

[Authorized institutional representative]