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Copyright ownership policy FAQs

1. Why is the Copyright Ownership Policy being revised?

UC’s Copyright Ownership Policy has not been updated since 1992 and has been due for a revision for some time. There have been repeated areas of concern and confusion over the years, including some of the key definitions in the 1992 policy, the copyright status of non-patented software created by faculty, and to what extent the use of University resources impacts their copyright ownership. Among other items, the definition of who is eligible to claim copyright ownership has been expanded. See “Academic Authors” definition in Section II of the revised policy.

2. What kind of works are eligible for copyright ownership?

Copyright protection is automatic for any “original work of authorship” and “fixed in any tangible medium of expression.” 17 U.S.C. § 102. Section 102 of the Copyright Act provides a non-exhaustive list of eight general categories of copyrightable works, including: literary works, musical works, dramatic works, choreographic works, pictorial and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Some common examples of copyrightable works created at universities are identified below in the next FAQ response. Please note that copyright does not protect mere facts or ideas. To learn more about copyright generally, visit the UC Copyright website at http://copyright.universityofcalifornia.edu/.

3. What is a Scholarly & Aesthetic Work?

As defined in the policy (Section II), a “Scholarly & Aesthetic Work” is any copyrightable work authored by certain UC employees within the scope of their employment and in connection with their teaching, research, or scholarship. This can include works such as: journal articles, books, short stories, poems, computer software, musical compositions/arrangements, sound recordings, documentaries, architectural drawings, visual works of art, sculptures, and other artistic creations. In addition, works in the performance arts (such as dance choreography and musical/theatrical performances) fall within the definition of “Scholarly & Aesthetic Works” assuming they are copyrightable and satisfy the other policy criteria. Essentially, anything within the subject matter of copyright ( 17 U.S.C. § 102) is eligible to be deemed to be a “Scholarly & Aesthetic Work” so long as the other policy requirements are met – i.e., such works must be “authored by Academic Authors within the scope of their employment as part of or in connection with their teaching, research, or scholarship.”

4. Who owns a Scholarly & Aesthetic Work?

In most cases, the individual who creates the scholarly or aesthetic work owns the copyright, except under certain circumstances (see next FAQ).

5. When does UC keep copyright in Scholarly & Aesthetic Works?

UC generally retains copyright in a Scholarly & Aesthetic Work if: (1) the work is sponsored by a third party funder; (2) it would be a breach of either policy, law, or contract to transfer the copyright back to the author; or (3) UC provided significant financial support for the work. See Section III.A.1 of the policy as well as the FAQs on Significant University Resources below.

6. Why is there a “transfer” of copyright ownership from UC to Academic Authors in Section III.A.1 of the revised policy?

Under U.S. copyright law, an employer normally owns the copyrights in works prepared by its employees within the scope of their employment. See first definition of “work made for hire” in Section 101 of the Copyright Act. Historically, courts had recognized a “teacher exception” to this rule, under which university faculty owned the copyrights in their scholarly works, even if university policy was silent. But legal scholars disagree about whether this exception survived the passage of the 1976 Copyright Act, which governs U.S. copyright in the present day. If a legal authority interpreting the policy was of the view that the teacher exception did not survive the current Copyright Act, then a policy stating that Academic Authors owned copyrights in their Scholarly & Aesthetic Works – without explaining that UC transferred them – could be found ineffective because U.S. copyright law requires copyright transfers to be made in writing. The policy is designed to avoid that outcome and to expressly provide for the copyright transfer of Scholarly & Aesthetic Works, as provided in Section III.A.1 of the revised policy. Meanwhile, if a legal authority interpreting the policy believes the teacher exception is still good law, then UC’s transfer of “any copyrights it may own” (emphasis added) in those works has no negative effect to the Academic Authors.

7. Are all UC employees considered Academic Authors?

No. As defined in this policy, “Academic Authors” is a narrower term than “Employees.” To be considered an Academic Author, a UC employee must have a general obligation to create copyrightable scholarly or aesthetic works as part of that person’s UC employment. See first definition in Section II.A of the revised policy.

8. For the purposes of copyright ownership, does it matter whether the UC employee was paid, unpaid, or employed only part-time?

For copyright ownership under this policy, it generally does not matter whether the UC employee was unpaid, employed part-time, or on a temporary leave. The term “employees” is broadly defined in Section II of the policy to mean “all individuals employed or appointed by the University in any capacity regardless of whether they are (1) faculty, staff, administration, or students, or (2) employed full-time, part-time, or in a temporary capacity” (emphasis added). Therefore, so long as other relevant requirements are satisfied, then unpaid or part-time UC employees are eligible to own copyright to works they create.

9. How do I know if I have a “general obligation” to create scholarly or aesthetic works as described in the definition of Academic Authors?

A “general obligation” to create scholarly or aesthetic works may arise in a number of ways, such as: labor contracts or other negotiated agreements; written job descriptions, job offers, or other documentation enumerating job responsibilities; the systemwide Academic Personnel Manual (APM) or related local manuals/guidance for academic appointees; and departmental policies and practices. When there are questions as to whether such an obligation exists (especially in the absence of clarity from the foregoing sources of information), employees may wish to consult with their supervisors or department/unit heads as to whether a “general obligation” to create scholarly or aesthetic works exists.

10. Is software covered under the revised policy?

Yes. Software is expressly identified as an example of a work whose copyright may be transferred to Academic Authors, so long as the other requirements of “Scholarly & Aesthetics Works” category (Section III.A.1) are met. However, even when the copyright is transferred to the Academic Author, UC continues to own the patent rights created in that software, if any. Patent rights in university inventions are governed by the UC Patent Policy and must still be disclosed to the appropriate campus technology transfer office. If there is any inconsistency between the copyright policy and the Patent Policy, the terms of the Patent Policy govern (Section III.F).

11. Can I use software that I created for commercial purposes?

The answer depends largely on the ownership status of the copyright in the software as well as the existence (if any) of underlying patent rights in the software. Questions should be addressed to the campus’s intellectual property licensing office where software issues can be disclosed. The appropriate campus licensing offices can assist you in determining: ownership status of the software (or related works); whether UC’s copyright and/or patent ownership policies apply; and whether the software can be made available for commercial purposes.

12. Are course materials covered under the revised policy?

Broadly, yes. However, ownership of course materials are specifically covered by a separate policy, the systemwide Ownership of Course Materials policy. That 2003 policy, which supplements the Copyright Ownership policy, addresses copyright ownership in greater detail for print, digital, and audio-visual course materials prepared for instructional purposes. For copyright ownership questions specific to course materials (including online course materials), please refer to the Ownership of Course Materials policy.

13. Is research data covered under the revised policy?

Generally, no. At present, ownership of original records of research is covered under a separate UC policy, known as Regulation No. 4 and codified in APM-020 of the Academic Personnel Manual. Please note that efforts are currently underway to draft a systemwide policy specific to rights and responsibilities in research data. Development of this policy will follow the standard UC policy review process. In addition, research data often will not, by itself, be protected by copyright.

14. How do I know whether I have used Significant University Resources when creating my copyrightable work?

It is difficult to provide a definitive answer to this question without further situation-specific information, given both the relative nature of such determinations and the fact that what constitutes Significant University Resources may shift in the future. In general, use of University Resources becomes “significant” when UC’s financial or facility resources used to create the copyrightable work are in excess of those resources generally available to similarly situated employees or students. It is a best practice to have written agreements in place when Significant University Resources are used in order to prevent uncertainty or confusion.

The following likely will not be deemed to constitute “Significant University Resources”:

  • Salary or student financial aid (including fellowships);
  • Campus-wide resources, e.g., libraries, networks and servers, computer labs open to students/faculty;
  • General amenities, e.g., office, laptop computer, office supplies, basic administrative and IT support; and
  • Small internal research grants or similar grants, such as grants administered by the Academic Senate or its Committee on Research.

Use of the following likely will be deemed to constitute “Significant University Resources,” unless an agreement states otherwise:

  • Unreimbursed use of dedicated equipment and resources not generally open to similarly situated employees or students, as applicable; and
  • At present, University funds disbursed by UC’s Innovative Learning Technology Initiative (ILTI) to create new online courses.

15. What factors are considered in determining whether my work involved Significant University Resources?

The determination of whether Significant University Resources were used to develop a copyrighted work is heavily fact-based and depends on the overall circumstances of each matter. Pertinent factors include the amount of funds, personnel, and facilities used to develop the copyrighted work, especially as compared with what is generally available to similarly situated authors.

UC does not construe the routine use of office, telephone, photocopiers, library or personal desktop work stations and their related communication and storage servers as constituting Significant University Resources. Similarly, the receipt of university salary alone is not sufficient to constitute use of Significant University Resources. On the other hand, if significant additional compensation (i.e., beyond one’s normal salary) was allocated specifically for the development of a copyrighted work, that may constitute Significant University Resources. However, Academic Senate grants are deemed to be not Significant University Resources.

Situations that are seemingly similar can result in different determinations as to whether Significant University Resources were used based on a variation of one key fact. So if you are working on a project that could result in a copyrighted work and you would like clarification as to whether UC is likely to claim copyright ownership for particular work, please consider reaching out to your supervisor or your campus’s delegated authority for copyright to discuss before you commence the project. Many such delegated authorities are identified at the following link: http://copyright.universityofcalifornia.edu/resources/permissions.html.

16. Is financial aid considered Significant University Resources for purposes of the Copyright Ownership Policy?

No. Under this policy, student financial aid does not fall within the definition of Significant University Resources.

17. For course materials I created but that involved using University resources in its creation, how do I know if the University can claim copyright ownership?

Ownership of course materials is governed by a separate systemwide policy – i.e., the Ownership of Course Materials policy. In the Ownership of Course Materials policy, the relevant provision is “Exceptional University Resources,” which is defined to be University resources “significantly in excess of the usual support generally available to similarly situated faculty members.” (This definition is similar to the “Significant University Resources” definition in the revised Copyright Ownership Policy.) For the Exceptional University Resources category to apply, there must be “a written agreement entered into between the Originator(s) and the University. The agreement shall specify how rights will be owned and controlled and how any revenues will be divided if the materials are commercialized.” (Section III.C of the Ownership of Course Materials policy.) In the absence of such written agreement, the course material “will not be deemed as created with the use of Exceptional University Resources.” (Id.) For questions about ownership of course materials – including online course materials or course materials created for distance learning – please refer to the Ownership of Course Materials policy.

18. How does this Copyright Ownership Policy affect students?

The revised policy clarifies that students, including graduate students, are the copyright owners of their theses, dissertations, and other student-created copyrightable works. (Section III.A.3.) Under specific circumstances, however, copyrightable works created by students are owned by the University. Those circumstances include if the work:

  1. was created primarily in the course or scope of the student’s UC employment;
  2. involved the use of Significant University Resources;
  3. is a Sponsored Work, Contracted Facilities Work, or Commissioned Work (as those terms are defined in the policy); or
  4. was created under a separate agreement that specifies a different copyright owner.

19. Are all copyrightable works created in the course of a sponsored research agreement owned by either the sponsor or UC?

No. Only those works that are created in the “direct performance” of a written agreement between UC and a sponsor can be considered a Sponsored Work. (See Section II, definition of “Sponsored Works.”) The revised policy now includes the word “direct” – a limitation intended to provide greater clarity and greater opportunities for Academic Authors to own the copyright in works created in connection with, but not directly in performance of, a sponsored project. For example, while a written report specified as a deliverable of a sponsored project likely would be considered “in direct performance” of a written agreement, copyrightable materials created as a by-product of the report (and not specified as a deliverable of the sponsored research project), such as a scholarly article discussing certain aspects of the report, would likely not be considered in the “direct performance” of a sponsorship agreement.

The revised copyright policy does not change the ownership status of laboratory notebooks “and other original records of the research” deriving from sponsored research agreements. Such “original records of the research” are typically considered owned by the University pursuant to the Academic Personnel Manual 020 (UC Regulation No. 4). While the creators of such research records may make copies for their own personal use, the original copies of such records should be archived on the relevant campus.

20. How does this policy interact with contracts and agreements between UC and other parties (e.g., external grant award contracts, agreements with represented employees, etc.)?

If the relevant agreement between UC and a granting agency, bargaining unit, or another third party is inconsistent with this Copyright Ownership Policy, the agreement prevails. For example, if there are any inconsistencies between this policy and an agreement governing copyright ownership by represented union employees, the provisions of the union agreement prevail (see Section III.E).

21. How does the policy handle copyrightable works by multiple authors?

Section III.B. of the policy addresses copyright ownership involving multiple authors. That provision states:

Copyright ownership interests in jointly-created works involving University Employees or University students will be determined by assessing the Category of Works and resulting ownership rights pursuant to Section III.A above for each person who qualifies as a co-author of the works. The copyright rights among joint copyright owners are governed under U.S. copyright law.

Therefore, upon assessing the policy categories in Section III.A, if there are multiple copyright owners for a jointly-created work, then the underlying rights for each joint owner will be governed by U.S. copyright law (unless an agreement among the joint owners provides different rights and obligations). For more information about joint copyright ownership, please visit the UC Copyright website’s page on “Joint authorship and collective works” at http://copyright.universityofcalifornia.edu/ownership/joint-works.html.

22. How does this policy interact with UC’s Open Access policies?

This policy determines copyright ownership, while UC’s Open Access (OA) policies have no bearing on the copyright ownership determination. For example, the Academic Senate OA policy states: “This policy does not transfer copyright ownership, which remains with Faculty authors under existing University of California policy.” The copyright ownership determination arising out of this Copyright Ownership Policy does, however, have some impact on certain provisions of the OA policies. For example, the Presidential OA policy for non-Academic Senate employees outlines different procedures for obtaining waivers depending on whether the author owns the copyright in their scholarly articles, as determined by “the 1992 UC Copyright Policy or its successor.” Under the revised Copyright Ownership Policy, more academic authors likely will own the copyright in their scholarly articles, but this policy does not change anything in the OA policies themselves.

23. How does this policy interact with UC’s Fair Use policy?

Copyright ownership and fair use cover different subject matter, but there is some overlap. UC’s Fair Use policy comes into play when UC personnel use copyrighted content owned by another party in ways that comport with fair use under U.S. copyright law (17 U.S.C. § 107). One example is where a UC author is preparing a scholarly article that reports on certain findings in a Sponsored Work (as that term is defined in the Copyright Ownership Policy). Though the Sponsored Work is not owned by the UC author, it is likely fair use for the author to reproduce or paraphrase limited excerpts of the Sponsored Work for a journal article (or a book, dissertation, or another scholarly work), unless the relevant sponsorship agreement states otherwise. Fair use under U.S. law requires consideration of four factors – i.e., the purpose and character of the proposed use, the nature of the original work, the amount and substantiality of the portion of the original work used, and the effect of the use upon the potential market for (or value of) the original work. For more information on fair use, please refer to UC’s Copyright Education website: https://copyright.universityofcalifornia.edu/use/fair-use.html

24. How does this policy interact with other UC policies on intellectual property (e.g., the Patent Policy)?

As discussed elsewhere in these FAQs, these other intellectual property policies are outside of the scope of this copyright ownership policy and generally do not overlap with this policy – except for the Ownership of Course Materials policy, which supplements the Copyright Ownership policy and provides detailed policy language specific to course materials prepared for instructional purposes.

25. Who can I ask for help understanding copyright at UC?

For questions about this policy, contact the “Contact” person identified on the first page of the policy. Assistance is also available at individual campus and lab locations. As noted in Section IV (Compliance and Responsibilities), Chancellors, Laboratory Directors, and their delegates can issue guidelines and supplementary local policies. They can also grant permission to use materials in cases when a copyright is owned by the University. A list of local contacts with authority over copyright matters is available at http://copyright.universityofcalifornia.edu/resources/permissions.html. Depending on your question and location, your campus counsel, campus policy office, or other campus-based resources may be able to help.

26. Who has the authority to alter or change the Frequently Asked Questions (FAQs) that accompany the UC Copyright Ownership Policy?

These FAQs were carefully drafted by the Systemwide Library and Scholarly Information Advisory Committee (SLASIAC) Standing Subcommittee on Copyright Policy (SSCP). The subcommittee is responsible for maintaining and revising the FAQs, as needed.