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AP 3715 Intellectual Property

References:

17 U.S. Code Sections 101 et seq.;
35 U.S. Code Sections 101 et seq.;
37 Code of Federal Regulations Parts 1.1 et seq.;
ORS 341.319


The following intellectual property procedure shall be interpreted consistent with other College policies, including, but not limited to, the College’s policy on academic freedom and federal and state statutes and regulations.  This procedure shall also be interpreted consistent with all collective bargaining agreements.

Definitions
For the purposes of this procedure, the following definitions apply to the following words or phrases:

“Administrative Activity” means the execution of the College’s management or administrative functions such as preparing budgets, policies, contracts, personnel management, printing course materials and catalogues, maintenance of computer data, long range planning, and keeping inventories of equipment.  Teaching and academic endeavors are not administrative activities.

“Author” or “Creator” means an individual who alone or as part of a group of other creators, invent, author, discover, or otherwise create intellectual property.

“College Resources” means all tangible resources including buildings, equipment, facilities, computers, software, personnel, and funding.

“Course Materials” Materials prepared for use in teaching, fixed or unfixed, in any form, including, but not limited to, digital, print, audio, visual, or any combination thereof.  Course materials include, but are not limited to, lectures, lecture notes, and materials, syllabi, study guides, bibliographies, visual aids, images, diagrams, multimedia presentations, web-ready content, and educational software.

“Course Syllabus” means a document that includes information about the outline, standards for student evaluation, and additional information which reflects the academic work of the faculty member.

“Digital Encoded Work” means a work (on a bit-sequence) that can be stored on computer-readable media, manipulated by computers, and transmitted through data networks.

“Employee” means an individual employed by the College, and shall include full-time and part-time faculty, classified staff, student employees, appointed personnel, persons with "no salary" appointments, and academic professionals, who develop intellectual property using College resources, unless there is an agreement providing otherwise.

“Intellectual Property” means works, products, processes, tangible research property, copyrightable subject matter, works of art, trade secrets, know how, inventions and other creations the ownership which are recognized and protected from unauthorized exploitation by law.  Examples of intellectual property include scholarly, artistic, and instructional materials.

“Student” means an individual who was or is enrolled in a class or program at the College at the time the intellectual property was created.

“Student Employee” means a student who is paid by the College, and may include students participating in a work study program or who receive stipends while they are acting within the scope of their employment at the College at the time the intellectual property was created.

“Substantial Use of College Resources” means use of College resources beyond the normal professional, technology, and technical support generally provided by the College and extended to an individual or individuals for development of a product, project or program.  The use of College resources must be important and instrumental to the creation of the intellectual property.  The following do not constitute substantial use of the College resources: (1) incidental use of College resources or (2) extensive use of College resources commonly available to College employees.  A substantial use of the College’s resources may be implicated in situations where the creator spends such time and energy in the creation of a work that results in a great reduction of the creator’s teaching activity.

“Work” means an “original work of authorship fixed in a tangible medium" as used in the Copyright Act.

Ownership of Intellectual Property
The ownership rights to a creation at the College shall be determined generally as set forth below, unless ownership is modified by an agreement.

Employee Intellectual Property Rights
A College employee who is the creator of an academic work in their field of expertise owns the copyright in that work.  Academic works include textbooks, lecture notes and other course materials, literary works, artistic works, musical works, architectural works and software produced with no more than nominal or incidental use of the College’s resources.  Academic works described in this paragraph are owned by the employee even though such works may have been developed within the employee’s scope of employment.

Intellectual property unrelated to an individual's employment responsibilities at the College, and that is developed on an individual's own time and without the College ‘s support or use of College facilities is the exclusive property of the creator and the College has no interest in any such property and holds no claim to any profits resulting from such intellectual property.

College Intellectual Property Rights
The College owns all other intellectual property, including but not limited to patentable inventions, such as computer software, created by its employees under the following circumstances:

  • If intellectual property is created through the College’s administrative activities by an employee working within their scope of employment; or
  • If intellectual property is created by an employee executing a duty or specific assignment designated by the College; or
  • If intellectual property is created through the substantial use of College resources; or
  • If intellectual property is commissioned by the College pursuant to a signed contract; or
  • If intellectual property is produced within one of the nine categories of works considered works for hire under copyright law pursuant to a written contract, or
  • If intellectual property is produced from research specifically supported by state or federal funds or third party sponsorship.

Where circumstances give rise to College intellectual property rights, as described above, the creator of the potential intellectual property will promptly disclose the intellectual property to the College.  The College and the creator may enter into a written agreement whereby the creator executes documents assigning intellectual property rights to the College.

The President may waive the College’s interests in its intellectual property by executing a written waiver.

Student Intellectual Property Rights
College students who created a work are owners of and have intellectual property rights in that work.  College students own the intellectual property rights in the following works created while they are students at the College

  • intellectual property created to meet course requirements using college or College resources, and
  • intellectual property created using resources available to the public. Intellectual property works created by students while acting as College employees shall be governed under provisions for employees.

Special Situations
Situations may occur in certain courses or college sponsored activities, where students are presented with the opportunity to participate in projects or activities in which the ownership of any resulting intellectual property must be assigned to a sponsoring entity (such as a company) as a condition of the student's participation. Students are never obligated to participate in projects or activities that require the assignment of the student's intellectual property to an outside entity.

In these situations students will always be presented with a choice of two options:

  1. To participate in projects or activities which do not require the student to assign their intellectual property.
  2. To participate in projects or activities that requires the student to assign their intellectual property.

The student's grade and/or evaluation of performance in the course will not be affected by the student's decision to participate or not to participate in projects or activities requiring the assignment of the student's intellectual property.

Students who receive monetary support from RCC are required to assign their intellectual property rights that specifically relate to those projects which the students receive financial support.

Policy Exceptions
The relevant Dean may make exceptions to this policy in certain cases, after consultation with the Vice-President- Instructional Services and College Counsel.

Modification of Ownership Rights
The general provisions for ownership of intellectual property rights set forth in Section II may be modified by the parties as follows:

Sabbatical Works
Generally, intellectual property created by College employees during a sabbatical is defined as an academic work.  However, where a work to be created as part of an approved sabbatical plan requires resources beyond those normally provided to other employees during a sabbatical (substantial use College resources), the parties may enter into an written agreement to define the College and employee’s intellectual property rights in the sabbatical work.

Assignment of Rights
When the conditions outlined in the sections on employee intellectual property rights or student intellectual property are met, ownership will reside with the employee or student responsible for creating the intellectual property.  In these circumstances, the creator may pursue intellectual property protection, marketing, and licensing activities without involving the College.  If such a decision is made, the creator is entitled to all revenues received.

Any person may agree to assign some or all of their intellectual property rights to the College.  In the event the creator offers to share or assign intellectual property rights in the creation to the College, the College may support and finance application for intellectual property protection (trademark, patent, or copyright) or it may enter into an agreement for other exploitation of the work, including management, development and commercialization of the property under terms and conditions as may be agreeable to the parties.  After evaluating the creator's offer, the College may or may not decide to become involved in a joint investment agreement.  A negative response from the College will be communicated in writing to the creator.  An affirmative response from the College will be summarized as an offer to enter into a written contract.  If the creator accepts the College’s proposed contract, any revenues received from commercialization of the intellectual property will be distributed as defined in the contract.

Sponsorship Agreements
A sponsored work is a work first produced by or through the College in the performance of a written agreement between the College and a sponsor.  Sponsored works generally include interim and final technical reports, software, and other works first created in the performance of a sponsored agreement.  Sponsored works do not include journal articles, lectures, books or other copyrighted works created through independent academic effort and based on the findings of the sponsored project, unless the sponsored agreement states otherwise.  Ownership of copyrights to sponsored works shall be with the College unless the sponsored agreement states otherwise.  Where a sponsorship agreement does not define ownership of the intellectual property, ownership shall be determined under applicable law.  Any sponsorship agreement that provides for ownership of the work by one other than the College generally shall provide the College with a nonexclusive, world-wide license to use and reproduce the copyrighted work for education and research purposes.

Collaboration/Partnership Agreements
The College may participate in projects with persons/organizations that result in the creation of intellectual property.  Ownership rights of such intellectual property will be defined by the collaboration/partnership agreement, or shall be determined under applicable law.

Special Commissions
Intellectual property rights to a work specially ordered or commissioned by the College from a faculty member, professional staff member, other College employee, or other individual or entity, and identified by the College, as a specially commissioned work at the time the work was commissioned, shall belong to the College.  The College, and the employee shall enter into a written agreement for creation of the specially commissioned work.

Use of Substantial College Resources
In the event the College provides substantial resources to an employee for creation of a work and the work was not created under an agreement (such as a sponsorship agreement, individual agreement, or special commission) the College and the creator shall own the intellectual property rights jointly in proportion to the respective contributions made.

Encoded Works/Software for Administrative Activities
The College may hire an individual or entity to develop software or other encoded works, to be used in the College’s administrative activities.  The College shall maintain ownership of the intellectual property rights in such encoded works.  Similarly, the College shall have ownership of the intellectual property rights in encoded works created by an employee, even where the work was created out of the employee’s own initiative, if the work in related to the employee's job responsibilities.  For example, if an employee in the student records office creates a software program, on their own initiative, that will organize student records, such work is related to the employee’s job duties and will belong to the College.  Where an employee creates a program that does not relate to their job duties, and that program was created on the employee’s own time, the work belongs to the employee.

Collective Bargaining Agreement
In the event the provisions of these procedures and the provisions of any operative collective bargaining agreement conflict, the collective bargaining agreement shall take precedence.

Jointly Created Works
Ownership of jointly created works shall be determined by separately assessing which of the above categories applies to each creator, respectively.  Rights between joint owners of a copyright shall be determined pursuant to copyright law.

Work Acquired by Assignment or Will
The College may acquire copyrights by assignment or will pursuant to the terms of a written agreement or testament.  The terms of such agreements should be consistent with College policies and these procedures.
 

Materials Implicating Third Party Rights
College employees and students must comply with College policies and state and federal laws, including copyright and privacy laws, in creating works.  College employees and students must obtain all required licenses, consents, and releases necessary to avoid infringing the rights of third parties. College employees and students with questions or concerns regarding third party rights should direct all inquiries to the Vice President of Instruction.

Intellectual Property Coordinator
The Vice President of Instruction shall be the College’s Intellectual Property Coordinator.  The coordinator shall administer this procedure and will implement the College’s Intellectual Property Policy.  The Intellectual Property Coordinator will also monitor the development and use of the College’s intellectual property.  Any questions relating to the applicability of the College Intellectual Property or this procedure may be directed and answered by the Intellectual Property Coordinator.

Preservation of Intellectual Property Right

Protection of Rights
The College shall undertake such efforts, as it deems necessary to preserve its rights in original works for which the College is the sole or joint owner of intellectual property rights.  The College may apply for a patent, for trademark registration, for copyright registration, or for other protection available by law on any new work in which it maintains intellectual property rights.

Payment of Costs
The College may pay some or all costs required for obtaining a patent, trademark, copyright, or other classification on original works for which it exclusively owns intellectual property rights.  If the College has intellectual property rights in a jointly owned work, the College may enter into an agreement with the joint owners concerning payment of such costs.

Commercialization of Intellectual Property

Right of Commercialization
The College may commercialize its Intellectual Property using its resources or it may enter into agreements with others to commercialize the work as authorized by law.

Distribution of Proceeds
An employee who creates a work and retains an intellectual property interest in such work in which the College maintains intellectual property rights is entitled to share in royalties, licenses, and any other payments from commercialization of the work in accordance with applicable agreements and applicable laws.  All expenses incurred by the College in protecting and promoting the work including costs incurred in seeking patent or copyright protection and reasonable costs of marketing the work, shall be deducted and reimbursed to the College before the creator is entitled to share in the proceeds.

Intellectual Property Account
The College shall deposit all net proceeds from commercialization of intellectual property in its own general intellectual property account.  The Chief Financial Officer (CFO) may use the account to reimburse expenses related to creating or preserving the College’s intellectual property rights or for any other purpose authorized by law and College policy including the development of intellectual property.

Notification
The Intellectual Property Coordinator shall provide a copy of these Intellectual Property Procedures to persons upon request.  The College shall arrange training on a periodic basis for faculty, staff and/or other persons who are covered by this Intellectual Property Procedure.

 

Rescinds Procedure Number: None

Approved:  June 2, 2020