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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.