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Guidelines and procedures for determining ownership of computer software
Approved by Chancellor Leutze February 12, 1991
Introduction
Many faculty, staff and students at the University
of North Carolina at Wilmington are creating computer programs. In
many
cases there is
a demand for these works outside the university. There has been no
procedure for authors of software to use in seeking help from within
the university for distribution, licensing, or sale of these works.
In order to support the creative development of innovative software
by university faculty, staff, and students, as well as to provide
criteria relating to the ownership of such software, the following
procedures
have been developed.
Section G of the University
of North Carolina at Wilmington Patent
and Copyright Procedures contains the university's only copyright policy
statement. That statement reflects the traditional approach that allocates
copyright ownership to the author except in special cases. The full
text of the policy is as follows:
As a general rule, all rights to copyrightable material are the property of the creator. The distribution of royalties, if any, is a matter of arrangement between the creator and his publishers or licensees. Different treatment may be accorded by the institution in case of specific contracts providing for an exception, in cases where the constituent institution or sponsor may employ personnel for the purpose of producing a specific work, where different treatment is deemed necessary to reflect the contribution of the institution to the work, as in the case of software or audiovisual material, or where a sponsored agreement requires otherwise.
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No limitation on publication
Nothing in these procedures and guidelines is intended or designed
to restrict or limit in any way the freedom of faculty, students, and
staff to publish. This document sets forth the procedures and guidelines
for determining ownership of computer software and for licensing software
developed at the university.
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Special treatment for computer software
The University of North Carolina at Wilmington Patent
and Copyright Procedures recognize that computer software may receive different treatment
than other copyrightable material. The following guidelines and procedures
describe the principles that will be used at the University of North
Carolina at Wilmington in determining ownership of computer software,
in licensing and selling such works, and in distributing royalties
that may accrue from such activity. In all cases involving the use
of university computing equipment to develop software that is subsequently
marketed, the assumption is that development of such software is clearly
related to the author's instructional, research, or service activities
for the university.
The use of a computer assigned to an individual is not considered
to be significant use of university resources, provided that such use
does not interfere with the user's performance of duties and that such
use has been approved by the department head or other appropriate administrator
with the understanding that software may be developed as a result of
the use of the computer.
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Ownership
- A computer program, like other copyrightable works, is presumed
to be owned by its author unless it falls within one of the exceptions
listed. Specifically, faculty, staff and students at the University
of North Carolina at Wilmington are presumed to be the owners of
software including computer programs, documentation, and related
materials,
provided such software is not covered by one of the exceptions.
- Computer software jointly authored shall be jointly owned, with
the authors responsible for determining each of their relative
contributions for purposes of sharing royalty income.
- It may be impossible or impractical to identify the authors
of computer software developed and modified using the contributions
of
different faculty, staff, and students. In such cases the software
shall be deemed to be owned by the academic department with the
author's share of royalties to be directed to the departmental budget.
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Exceptions to author ownership of computer software
The following paragraphs list the situations in which the author of
computer software is not deemed to be the owner of the software:
- Work for hire: When computer software is prepared
by an employee as part of that employee's duties, the program belongs
to the university
by operation of the Federal copyright law. The software is considered
to be a "work made for hire." At the University of North
Carolina at Wilmington the creation of computer software is considered
to be work for hire when a written statement is given to the employee
indicating that software developed by that employee will be considered
to be done within the scope of employment and thus belong to the
university.
- Commissioned work: The university shall own the copyright to
any computer software that is specifically ordered or commissioned
by the
university if there is a written agreement, executed prior to the
creation of the software, in which the author and university agree
that the
copyright shall belong to the university.
- Sponsored contracts and grants: Computer software developed
under grants from the Federal government or a private agency or corporation
shall be subject to the conditions of the contract or grant with
respect
to ownership, distribution, use and other rights. Whenever a grant
or contract requires the development of computer software, the
agreement must include terms specifying the ownership of the software
that are
negotiated after consultation with the principal investigator.
In the absence of contract or grant terms relating to the ownership
of computer
software, ownership shall be determined through the use of these
guidelines and procedures.
- Unit policy: There are units at the University of North Carolina
at Wilmington that publish software as part of their regular activities.
The employees of these units are employed to develop computer software
and other copyrightable material as a part of their regular duties.
These units may adopt rules providing that ownership of the software
and other copyrightable material resides in the unit rather than
the author. Approval of the chancellor is required before any unit
may
implement such rules.
- Student projects, theses, and dissertations: In order to receive
credit for a thesis, dissertation, honors project, or other student
project that requires a written public product, a student must
grant to the university royalty-free permission to reproduce and
publicly
distribute on a noncommercial basis, copies of any software developed
as a part of the thesis, dissertation, or project. The university
must approve all exceptions to this stipulation that arise as a result
of
any sponsored contracts. In certain situations the thesis director,
the student and/or the graduate committee may conclude that joint
ownership by the university, faculty and student is appropriate for
computer
software developed as part of a student project, thesis or dissertation.
In such cases the graduate committee shall enter into a written
agreement with the graduate student as soon as practicable during
the research
project but prior to the final submission of the student project
report, thesis, or dissertation. Unless it is covered by one of the
exceptions
in this Section, other computer software developed by students
is owned by the students.
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Licensing and sale of computer software
- The university may pursue licensing or sale of computer software
that it owns or co-owns. If the university decides not to pursue
licensing or sale of its software in a timely fashion, the author(s)
of such
software may request that the university assign all of its rights
to the author(s) in order to permit the author(s), to pursue marketing
of the software. When it assigns its rights to the author(s), the
university
will retain the right to receive at least ten percent of the gross
royalty that may accrue. Any assignment shall be subject to obligations
which the university may have with respect to third parties who
may have provided funds or equipment for development of the software.
- An author may enter into a written agreement with the university
for the marketing of computer software through the university,
through an agent selected by the university, or through an agent
mutually agreed
upon by the author and the university.
- The university may enter into agreements with agents to assist
the university community in the licensing and sale of intellectual
property generated at the university.
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Maintenance and support of software
- There will be no obligation on the part of the author(s) to
support or maintain the software developed unless there is a written
agreement
concerning support and maintenance with the university or its agent.
- Unless there is a written agreement with the university for
software support and maintenance, university resources may not be
used for the
support and maintenance of software owned by faculty, staff, and
students.
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Distribution of royalties
- Royalties shall be divided in an equitable manner that recognized
the contribution of the parties.
- The University of North Carolina at Wilmington believes that
even when authors do not own the software because it was developed
in the
course of their employment, they should receive some additional
reward for creative effort. As a general rule such authors should
receive
at least ten percent of the gross royalties generated by the licensing
or sale of the software. In cases of joint authorship of a work
owned by the university, the authors must have a written agreement
among
themselves to determine what portion of the author's share each
is to receive.
- For software owned by the university, jointly owned by the university
and authors, or owned by the author and licensed or sold by the
university or its agent, the royalty distribution shall be determined
by a written
agreement between the author and the university or agent.
- An author who is an employee may waive in writing the receipt
of a portion or all of the author's share and instead request that
the
funds be paid to a department or other unit.
- Royalty received from the licensing or sale of software developed
pursuant to a sponsored grant or contract shall be distributed
according to the terms of the grant or contract. If the grant or
contract is
silent on the question of royalty distribution, then the royalty
shall be distributed according to these guidelines and procedures.
- The university or its agent may enter into licensing or sales
agreements with outside agencies that provide for different arrangements
for sharing
of royalty, provided that such agreements are reviewed with and
agreed by the authors and their departments.
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Administration
- These guidelines and procedures shall be administered by the
Office of the Provost and Vice Chancellor for Academic Affairs.
- Questions of ownership of computer software that is either partially
or solely owned by the university shall be referred to the Office
of the Provost and Vice Chancellor for Academic Affairs.
- All agreements for licensing and marketing of software shall
be approved by the Office of the Provost and Vice Chancellor of Academic
Affairs.
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Review
The Faculty Senate shall periodically review these guidelines and
procedures and recommend any appropriate modifications to the chancellor.
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Use of university name
The name of the University of North Carolina at Wilmington or reference
to the university shall not be used in any form of publicity or marketing
for the commercial use or sale of computer software without prior written
approval from the University of North Carolina at Wilmington.
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Effective date
These guidelines and procedures shall be effective on February 12,
1991.
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