Policies and Guidelines prior to May 19, 2020

[PSU Copyright Policy Prior to May 19, 2020]

Course materials created by faculty and other employees are subject to the same policies and guidelines as other copyright works, however there are aspects of the policies and guidelines that particularly impact course materials.

Even if, by policy, the copyright to course materials must be assigned to PSU (be PSU owned, see below for a more detailed discussion), the creator of those materials still retains quite a bit of control over those course materials. As with other copyrighted works, our guidelines allow faculty and employees to continue to use and distribute their course materials outside of PSU even if they are obligated to assign them to PSU, as long as those course materials are not sold or otherwise offered for monetary value and as long as they are appropriate marked © Portland State University.

Guidance for copyright works created prior to May 19, 2020

Ownership:

At PSU, employee authors will NOT be required to assign copyright of their works to PSU unless:

• The works were developed with institution support in the form of significant (more than incidental and more than minimal) institutional personnel time, facilitates, or other resources;

• The works were developed using sponsored effort in the form of funds administered or controlled by PSU; or

• The works were developed as a part of a specific work assignment given by a supervisor, or the works were specifically identified in a contractual provision, such as an employee’s employment agreement.

As discussed in more detail below, works developed without funding and not as a specific work assignment, but with minimal use of PSU resources, are not required to be assigned to PSU, but PSU may require their disclosure and require reimbursement for the institutional resources used if the material is subsequently licensed or assigned for compensation (IMD 6.255).

Assignment requirement

As a condition of employment, all employees shall agree to assign to the institution their rights in educational and professional materials which result from instructional, research, or public service activities of the institution.

IMD 6.215 states that the Board reserves ownership rights to educational and professional materials developed with institutional resources. Board and institution assisted effort is defined in IMD 6.210 as effort which involves institution support in the form of significant personnel time, facilitates, or other resources. IMD 6.215 further states that funds and facilities provided by external partners but administered and controlled by the institution shall be considered funds and facilities provided by the institution.

The IMD provides greater detail than the OAR regarding the educational and professional materials that are required to be assigned to the university. Because it would be impractical to require disclosure of and assert university ownership over ALL educational and professional materials produced at PSU, the university asserts copyright ownership over only those materials that fall within the parameters defined by IMD 6.215.

Specific inclusions

In addition to materials “developed with institutional resources”, IMD 6.215 states that educational and professional materials “developed in the course of employment” means either materials for which the author was employed for the specific purpose of preparing or producing, or for which the author was specifically directed to develop as part of general employment duties and responsibilities. These materials are to be owned by PSU.

IMD 6.255 also specifically includes materials which were developed with significant institution-assisted effort, and materials developed under sponsored assignments. These materials are to be owned by PSU.

Specific exclusions

IMD 6.215 specifically excludes lecture notes and other materials prepared by academic staff in connection with a teaching assignment and with only incidental use of institutional facilities, funds, staff, and other resources. These materials are to be owned by their authors or creators.

IMD 6.215 also explicitly excludes books, musical or dramatic composition, architectural designs, paintings, sculptures, or other works of comparable type, UNLESS these were developed under contractual provisions, with significant institutional resources, or as a specific work assignment, HOWEVER with regard to the last condition, an academic staff person's general obligation to produce scholarly works does not constitute such a specific institution assignment. These materials are to be owned by their authors or creators.

IMD 6.215 also specifically excludes materials which were developed with no institutional effort, and materials developed with minimal institutional effort, although for those developed with some - albeit minimal - institutional effort the author may be required to reimburse the institution for cost of the institutional effort out of any revenue received from the author’s licensing or assignment of such materials. These materials are to be owned by their authors or creators.

The following is a simplification of PSU's copyright materials ownership and disclosure guidelines. Please see the full guidelines for more detailed and thorough descriptions.

At PSU, employee authors and creators will own the copyright to works and materials which they create UNLESS:

• The works were developed with significant institutional resources, or

• The works were developed using funds awarded under a sponsored project or otherwise administered by PSU, or

• The works were developed as a part of a specific work assignment, e.g. given by a supervisor or identified in an employment agreement.

For some copyright materials that are owned by PSU under the rules above, the authors and creators have the ability to use and distribute the materials as they see fit. For copyright materials published in a journal or book for which the publisher requires assignment of copyrights, PSU waives its ownership requirement.

Publications:

PSU exempts material published in scholarly or professional journals without monetary compensation from any requirement to assign copyrights to PSU.

IMD 6.215 states clearly that the general obligation of academic staff to produce scholarly works does not constitute a specific work assignment, and therefore in the absence of the other guideline conditions above (no specific directed work assignment or contract, no funding, no significant institutional resources) the copyrights to such works are not obligated to be assigned to PSU.

This leaves open the possibility of scholarly works that are obligated to be assigned to PSU because of the guidelines above. However, IMD 6.215 also states that the institution’s reservation of ownership rights does not preclude an employee from granting copyright privileges to the publisher of a scholarly or professional journal when no compensation or royalty is involved. Most journals require and receive copyright assignments or licenses directly from the authors. Because it would be impractical to sort out, university-wide, which journal manuscript submissions should be first assigned to PSU before they are assigned to the journal, PSU exempts all works which need to be assigned to a journal (without monetary compensation) in order to be published from any competing requirement to first assign copyrights to PSU.

Course Materials:

For course materials, however, an additional piece of the policy is particularly relevant: IMD 6.215 states that PSU reserves the right to use and license such PSU-owned copyright works. Therefore, although the faculty or employee may use the PSU-owned course materials they create, so can PSU. For this reason, although IIP may not require disclosure of such materials, the department or center may wish to keep them on record for subsequent use.

PSU-owned course materials that the creator wishes to subsequently use, have licensed, or have distributed outside the university in exchange for monetary compensation are required to be disclosed to IIP. IIP will work with the creator to license and distribute these materials, and by policy will share 50% of all revenue from the licensing of such materials with the creator(s).

When are course materials obligated to be assigned to PSU?

PSU does NOT require employee copyright works to be assigned to PSU unless;

• The works were developed with institution support in the form of significant (more than incidental and more than minimal) personnel time, facilitates, or other resources;

• The works were developed using sponsored effort in the form of funds administered or controlled by PSU; or

• The works were developed as a part of a specific work assignment given by a supervisor or were specifically identified in a contractual provision, such as an employee’s employment agreement.

Although conditions one and three are in compliance with the following, for clarity IMD 6.215 specifically excludes lecture notes and other materials prepared by academic staff in connection with a teaching assignment and with only incidental use of institutional facilities, funds, staff, and other resources.

The second two conditions above are usually fairly clear. Course materials (even if developed with incidental or minimal use of resources) developed using funding given or controlled by PSU or as a specific work assignment or under a specific contract will always be obligated to be assigned to PSU.

Regarding the first condition, incidental use may include the use of a university computer, printer, routine office software, reasonable office supplies, and normal scholarly and pedagogical interaction with other employees. Generally, course materials developed with such incidental institutional resources are not obligated to be assigned to PSU.

There is a section of the policy that refers to minimal use of resources - more than incidental but not significant. Minimal use of resources may include any of the above used to a degree that exceeds the normal practice of course development (printing course packets with department supplies, etc.), and may also include services provided by the university such as copyright clearance, library services, or review by subject matter experts. Course materials developed in this way are also not obligated to be assigned to PSU, however, IMD 6.255 requires that the institution be reimbursed for the costs of these minimal resources if the course materials are ever licensed or distributed for monetary compensation by the author. These costs are to be agreed upon by the author and IIP.

Significant use of institutional resources may include help with course design, graphic design help for print or online materials, personnel or staff time in the form of course compliance with accreditation standards or assembly of materials into sequenced classes or an online platform. Course materials developed in this way are obligated to be assigned to PSU.

Disclosure:

As a condition of employment all employees are responsible for disclosing to the Board (through IIP) all educational and professional materials made during the conduct of normal activities, and the IMD implies that employees and other persons who conceive or develop copyright materials while engaged in activities utilizing institutional resources shall report such findings to the institutional official (6.225).

These disclosure requirements for copyright materials sound all-encompassing, and might be overwhelming when one considers that in practice all of us are creating copyright materials all the time (every time we fix a new and unique expression in tangible form). The disclosure requirements are further complicated by the “made during the course of normal activities” and “while engaged in activities utilizing institutional resources” conditions, which we interpret as materials that should be owned by PSU. Not all educational and professional materials will be owned by PSU (see ownership section above), and even for those that should be, it would be impractical to have all of them disclosed. Therefore, PSU provides the following practical guidelines for what must be disclosed and what doesn’t necessarily need to be disclosed to IIP.

PSU employees have a responsibility to properly mark with “© Portland State University” any copyrighted works that they create which should be assigned to PSU but which will not be licensed to third parties for monetary compensation.

In cases where copyrighted materials should be university owned but for which there are no rights licensed or that will be licensed to third parties in exchange for no compensation, IIP will consider proper attribution on the work (© Portland State University) rather than physical disclosure to IIP to be sufficient to fulfill any disclosure requirement. Support for this approach can be found in IMD 6.215, which states that the university’s reservation of ownership does not preclude an employee from granting copyright privileges to journals when no compensation in involved. For practical purposes we are extending this idea to other works, which may include software and other materials that may be distributed under Open Source or Creative Commons licensing, or course materials for either online or physical classes that are created with significant use of institutional resources (see course materials section, below). In essence, PSU is allowing the authors of these works to decide on how they would like to grant PSU’s copyrights to third parties (and not requiring that you tell us about it) as long as there is no money involved and as long as the proper name is used.

Although not required, these materials may still be disclosed to IIP, and IIP remains a resource to faculty and research projects to discuss the licensing and management of these copyright materials.

PSU employees have a responsibility to disclose to IIP any copyright works that they create which should be assigned to PSU and which may be licensed to third parties for monetary compensation.

In cases where copyrighted materials should be university owned and for which there will be or may be rights licensed to third parties in exchange for compensation, PSU requires disclosure to IIP per the requirements of the OAR and IMD. Typically the works owned by PSU will have used significant university resources, will have been developed with funding administered by PSU, or will have been directed by a supervisor. As such this guideline requires disclosure of this category of copyright material in order for IIP to fulfill our policy responsibility (IMD 6.235) to maximize public, Board, institution, and author benefits when seeking licenses and publishing agreements, and in general to act as good stewards of university assets.

If there is any question about whether or not a copyright work must be disclosed, we encourage you to discuss your project with IIP.

If you have a copyright you would like to disclose, please visit our Inventor Portal, or contact us directly.

Licensing:

IIP will endeavor to license copyrights in counsel with the authors and with the best interests of the innovation and the goals of the project in mind. See the copyright licensing section of the IP Primer for further detail. The PSU Royalty Distribution Policy related to authors of copyrighted works can be found at IMD 6.250.

As a consequence of our guidelines on copyright disclosure, there will be PSU-owned copyright works where the authors will have control over the grant of rights and licensing of the work as long as proper attribution is made. IIP is a resource for these employees to aid in navigating licensing options and structures, and we encourage authors to use the appropriate Creative Commons (http://creativecommons.org/) or Open Source (http://www.opensource.org/) licenses when distributing the work, if these schemes are applicable.