Copyrightable Instructions Materials Ownership, Use, and Control

Revised: November 24, 1997

I. Background

UW System institutions are often directly involved in the development of copyrightable instructional materials, because they provide substantial public resources to support the creation and production of these materials. Institutional involvement is likely to expand substantially with the increased use of information technology in the creation of multimedia instructional materials and distance education course offerings.

The UW System does not assert a property interest in materials which result from the author’s pursuit of traditional teaching, research, and scholarly activities. The creation of materials such as theses, scholarly articles, journal articles, research bulletins, monographs, and books occurs, in most circumstances, as an integral part of the author’s position as a UW System employee. In those cases where substantial institutional resources are provided to support the development of instructional materials, however, the UW System may assert ownership or other property interests that should be addressed through specific agreements with the authors and producers of the materials. [1]

This policy paper identifies typical situations in which the development of copyrightable instructional materials occurs, and provides information and guidance for those situations when copyrightable instructional materials are developed with substantial support from UW System institutions.

II. Policy

A. Copyrightable Instructional Materials

Copyrightable instructional materials include, but are not limited to, the following: books, texts, glossaries, bibliographies, study guides, laboratory manuals, syllabi or 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.

B. Developmental Conditions

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

1. No UW System or institutional support or involvement;
2. Minimal[2] UW System or institutional support or involvement;
3. Substantial[3] UW System or institutional support or involvement.
4. As an assigned duty or pursuant to a work-for-hire agreement;
5. With support from an extramural sponsor.

C. Ownership Interests

1. It is the policy of the UW System that copyrightable instructional materials developed under the conditions identified in sections II.B.1. and 2. of this policy paper belong solely to the author.[4]
2. Copyrightable instructional materials developed under the conditions identified in section II.B.3. of this policy paper are required to be the subject of a written agreement between the author and the chief administrative officer of the institution involved, or his or her designee, that equitably determines copyright and ownership rights.[5]
3. When the production of copyrightable instructional materials is the primary purpose of an employment or independent contractor relationship with a UW institution, as under section II.B.4. of this policy paper, the UW institution shall own all rights, including copyrights, in the materials produced, and a written work-for-hire agreement[6] shall be executed. Under the work-for-hire agreement, fair payment shall be made to the author of the copyrightable instructional materials and the UW institution shall receive all rights, including copyrights, to the materials, together with any royalties and fees.
4. When copyrightable instructional materials are produced as an assigned duty of employment, the UW institution shall own all rights, including copyrights, in the materials produced, together with any royalties and fees, unless a contrary agreement has been reached prior to the beginning of the project between the author and the chancellor or his or her designee.
5. When copyrightable instructional materials are produced with extramural support, as under II.B.5. of this policy paper, the agreement with the extramural sponsor shall be considered in determining the copyright and ownership rights of the parties.

III. Contractual Guidelines

The conditions of production, use and final disposition of copyrightable instructional materials will vary from project to project. Where such materials are to be produced under the conditions specified in II.B.3. and 4. of this policy, however, it is necessary for the authors and the institution to enter into a written agreement prior to beginning the project that defines the rights and responsibilities of the author and institution, and where possible, describes the interests of any extramural sponsors or other participants in the project. Such an agreement may also be appropriate when copyrightable instructional materials are produced under the conditions specified in II.B.5. of this policy. In addition to establishing ownership interests in accordance with II.C. of this policy, all such written agreements should reflect the following principles:

A. Author and Institutional Responsibilities

1. The chancellor or his or her designee shall be responsible for determining whether a project is suitable and reasonably related to the academic mission of the institution.
2. The sponsoring department or functional equivalent shall be responsible for designating 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.[7] 
4. The responsible individual will also be 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 use,” as used in this section, means use by University of Wisconsin System institutions, within the University of Wisconsin System, by any means including broadcast, closed circuit television, compressed video, digital software or multimedia formats.
2. Internal use and sharing of instructional materials should be encouraged. Accordingly, agreements developed under this policy should address internal use, and may provide that any charges by the producing UW System institution to other UW System institutions for internal use of copyrightable instructional materials be limited to reflect actual, direct costs incurred by the producing institution, such as production, promotion, handling and duplicating.

C. External Distribution

1. Distribution external to the UW System may occur either through direct rental, sale or licensing by the producing UW institution 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. Whenever possible, the results of the negotiating process should be incorporated in the pre-project agreement developed under this policy. Since it is not always possible to anticipate all future uses of the instructional materials, the agreement should also provide that additional uses may be arranged upon further negotiation.

D. Revision or Withdrawal

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

1. Copyrightable instructional materials shall not be altered or revised without consultation with the author.
2. If the producing institution continues the use of copyrightable materials, or authorizes the use of such materials by others, contrary to the recommendation of the author, the producing institution shall not advertise or present the materials as the work of that author, 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 or her designee.
4. The author should be consulted when instructional materials are considered for uses other than the ones for which they were produced.

IV. 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, including the first and subsequent semesters of utilization.

B. Allocation of Financial Benefits of External Distribution

1. Where copyrightable instructional materials produced under the conditions specified in II.B.3. and 4. of this policy are to be distributed externally, the financial benefits of external distribution shall be shared by the sponsoring department or functional equivalent, the author and the institution.
2. Revenue generated by external distribution should be shared between the author and the institution in accordance with revenue distribution schedules, established in percentages, based on preamortization[8] and postamortization of the project costs, as follows:
   1. Preamortization. A reasonable pattern of distribution prior to amortization provides an approximate return of ten percent of gross receipts to the author with ninety percent retained for distribution to the department or functional equivalent or institution for amortization of their contributions.
   2. Postamortization. After amortization, the author’s share of receipts should increase to approximately twenty-five percent of gross receipts.
3. The share of receipts assigned to the department or functional equivalent should be used for the support of teaching load adjustments necessitated by the project, or the development of new course materials or the revision or improvement of the original project.
4. 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 a UW System institution.

C. Outside Resource Person

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

V. Administration and Review of Guidelines

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

These guidelines may serve as the basis of contract between the author and involved UW System institution.[9]

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

[3] “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] “Author,” as used in this policy, means the authors, artists or 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.

[5] A sample contract is attached to this policy as Attachment A.

[6] A sample work-for-hire agreement is attached to this policy as Attachment B.

[7] A sample letter requesting permission to use copyrighted materials is attached to this policy as Attachment C. If authors need more detailed guidance or have questions concerning the need for obtaining permission, legal assistance is available from the UW System Office of General Counsel, or from campus legal counsel offices.

[8] “Amortization” as used in this policy means that point at which the institution has recovered at least the costs of production of the project. Elements of costs eligible for amortization include, but are not limited to: costs of materials and services, costs of personnel time, usage costs of equipment, studios and the like, distribution costs and applicable indirect costs.

[9] See the sample contract attached to this policy as Attachment A.