Whitman College Copyright and Intellectual Property Policy (April 2018)
III. Intellectual Property and Copyright Ownership
C. Independent Contractor Work
V. College Ownership Rights and Rights of Use
VI. Exceptional Use of College Resources
VII. Use of Copyrighted Works for Education and Research
A. Compliance with Copyright Laws
B. Assistance with Copyright Compliance
C. Fair Use of Copyrighted Works
D. Course Reserve and Course Management System Materials
E. Violation of Copyright Laws
VIII. Resolution of Conflicts Over Ownership and Use Rights
APPENDIX A: Definitions of Terms Used in Policy
As a community of teachers and scholars, Whitman College (hereafter the “College”) is committed to encouraging the creation of new works, new ideas, and new forms of creative and scholarly expression and to share this knowledge openly with colleagues and the public. This “Policy on Copyright and Intellectual Property” (hereafter the “Policy”) is intended to protect the interests of those who create and use intellectual property as well as the interests of the College itself, which supports this creative and scholarly work.
For additional assistance interpreting or using this policy, faculty, students, and staff are encouraged to consult the Guide to Copyright and Intellectual Property at Whitman College.
This Policy expresses the College’s approach to ownership and use of intellectual property. It covers all those who are a part of the College – faculty, staff, students, visiting artists, visiting scholars, or other participants enrolled, employed or affiliated with the College, and this Policy governs in all circumstances, unless the College has modified it through a specific agreement connected to a sponsored or commissioned work or as part of work under a grant or contract. Should there be any conflict between the provisions of this Policy and the terms of a separate agreement between the College and one of the individuals listed above, the terms of that separate agreement will govern.
The following terms are used throughout the Policy and are defined in Appendix A:
The Policy adheres to the long-standing academic tradition that creators of works own the copyrights in works resulting from their scholarly, pedagogical, and creative activities. It also underscores the commitment of Whitman College to fostering an environment of respect for and responsible use of the intellectual property of others. Whitman College is committed to helping members of the community comply with copyright laws by providing resources to help individuals make informed, careful, and situation-sensitive decisions about the lawful and fair use of work created by others.
As a general rule, the College does not claim copyrights in journal articles, books, lectures, musical compositions, creative works, or other copyrightable works that are created through independent or collaborative academic effort or creative activity and that are intended to disseminate the results of academic research and scholarship, and/or to exhibit forms of artistic expression on the part of faculty, staff, and students.
Exceptions to this general rule include works that are sponsored works, commissioned works, or works involving the exceptional use of College resources (see Section VI and Appendix A), or works made for hire. (See Section V and Appendix A for the College’s ownership rights and rights of use.) The College does not claim copyrights to syllabi created by faculty in the employment of the College. However, the College retains the right to use and reproduce syllabi in the unlikely event a faculty member cannot complete a course or as needed for administrative purposes. For practical purposes course and program descriptions are deemed to be works made for hire.
In terms of commissioned or sponsored works that are deemed works made for hire, the commissioning party is legally the author and thus owner of any such works. If a work made for hire is developed jointly by employees and/or students of the College and a non-College party, the copyright of the resulting work will be jointly owned by the College and that party, unless modified in a written agreement.
Ownership of all patents relating to employee works and sponsored works is discussed in the section of this Policy that addresses patents.
In the case of exceptional use of College resources, the authorizing parties within the College will develop a written agreement with the user of those resources to determine possible reimbursements, sharing of royalties, or other systems of compensation back to the College.
The College makes no claim of copyright ownership in works created by full-time, part-time, exchange, and “special status students” working on their own, or developed in the context of a course ( i.e., without the exceptional use of College resources), and outside of any employment by the College. The College also makes no claim of copyright ownership in works that are not sponsored, contracted, or commissioned by the College and do not make exceptional use of College resources. Note the following principles:
(a) Students working on a project governed by an existing intellectual property rights agreement to which the College is a party are bound by all terms of that agreement.
(b) Students hired to carry out specific tasks that contribute to a copyrighted or patented work of the College retain no rights of ownership in the whole or in part to that work or to the student’s contribution to that work.
(c) Students working collaboratively with faculty on projects that might result in copyrighted or patentable works are granted the same rights and subject to the same limitations of ownership as would be the faculty working on their own.
(d) In the case of exceptional use of College resources, the authorizing parties within the College will develop a written agreement with the user of those resources to determine possible reimbursements, sharing of royalties, or other systems of compensation back to the College.
As a general rule, the College will only retain the copyright in a work that is created by an independent contractor if the College has specifically ordered or commissioned the work and if a written agreement designating the work as a “work made for hire” and/or an agreement requiring assignment of the copyright in the work has been signed by both parties.
All College employees who are participating in approved independent consulting activities will retain rights to works created during the course of activity that bears no relation to their employment as defined by their job description and/or employment contract, and/or if they do not receive additional compensation from the College beyond that specified in their employment contract or appointment letter, and/or have not made exceptional use of College resources. Similarly, all College students will retain rights to works if the work carried out bears no relation to existing student employment and/or if they do not receive additional payment for the work from the College and/or have not made exceptional use of College resources.
This policy administers claims to patent ownership according to the principles and procedures outlined below:
(a) A patentable invention or discovery, if created within the scope of employment as defined by the employment contract and/or job description, or if it is the result of exceptional use of College resources, may be deemed the property of the College.
(b) All patentable work undertaken as a sponsored or commissioned work shall be deemed the property of the College unless otherwise provided for in a separate written agreement.
(c) Patentable work by students developed in the context of a course may be deemed the property of the College if it is the result of exceptional use of College resources.
(d) Upon becoming aware of the potential patentability of an invention or discovery that may be deemed the property of the College, an employee or student must either publish the work in furtherance of the educational mission of the College or report the finding to the Provost and Dean of the Faculty.
(a) Upon the report of potentially patentable work, the College may decide to pursue an investigation into the patentability of the specific invention or discovery through the use of appropriate legal and technical counsel. All costs for such an investigation will be borne by the College. If the investigation reveals that the invention or discovery may be patentable, the College will decide whether to commence the patent application process, again bearing all fees and costs.
(b) In the case of inventions or discoveries that are the subject of applications filed by the College, all right, title and interest to the inventions or discoveries, including the applications and any patents issuing therefrom vests with the College, and all employees and students subject to this clause do hereby assign and agree to assign all such right, title and interest to the College and to sign all documents considered necessary by the College to perfect and/or record the ownership rights of the College set forth herein.
(a) If the College does not pursue an initial patentability investigation with respect to an invention or discovery, or if the College decides upon investigation not to pursue a patent, or if the College discontinues pursuit of a patent at some point in the patent application process, the College may, in its sole discretion, reassign ownership to the inventor within a reasonable amount of time. At the inventor’s request, the College will provide written notification of the College’s intent not to pursue a patent and a statement allowing the inventor to pursue the patent. The inventor shall grant the College a royalty-free, non-exclusive, worldwide license to employ the invention for the sole use of the College for the life of the patent, unless the College specifically waives its rights to such a license, in writing.
(b) If a patent is obtained by the College and after a reasonable amount of time and reasonable amount of effort there has been no successful commercialization of the patent, the inventor may petition the College to have the patent reassigned to them. Reassignment shall be at the sole discretion of the College. In the event of such reassignment the inventor shall grant the College a royalty-free, non-exclusive, worldwide license to employ the invention for the sole use of the College for the life of the patent, unless the College specifically waives its rights to such a license in writing.
(c) In those cases where the College secures a patent, the College will make the appropriate licensing arrangements. All costs for patent development are to be borne by the College, but will be recovered by the College from accumulated net income prior to any inventor or College distributions. Subsequent to securing the patent the accumulated net income, including gross royalties and licensing fees from the patented discovery, device, or system, less all related direct expenses, will be divided as follows, unless the parties agree otherwise in writing:
(d) The inventor’s share will be divided among their co-inventors, assistants, and any other relevant parties, as determined by a prior contract between the inventor, co-inventors, assistants, other relevant parties and the College. The inventor’s share will continue regardless of their subsequent employment or educational status with the College.
Faculty, staff, and students shall grant to the College a royalty free, nonexclusive right to archive, use and reproduce all works created using College facilities, resources, or staff. This shall include works not subject to “work made for hire” agreements and works made by independent contractors retained by the College. If the College is not an owner of the subject work, then the College’s use shall be limited to non-commercial use, e.g., uses in support of education and scholarship, research, exhibition, archiving, accreditation, development, alumni relations, and promotion of the College and its activities generally.
The College retains ownership of sponsored works, commissioned works, or works involving the exceptional use of College resources (see Section VI and Appendix A,) or works made for hire (see Appendix A). The College retains all such rights unless they are modified by the specific terms of a written agreement. The rights of the College to a non-exclusive, global license to use and reproduce copyrighted or patented materials for educational, research, and promotional purposes must be included in any agreement with a non-College sponsor such as an external funding agency.
The College is the owner of the registered trademark WHITMAN COLLEGE, serial number 77848924. The College claims ownership and exclusive right to this and any other trademark or service mark developed by the College for use with sale of goods in commerce. The College’s marks include any and all names, logos, insignias, and related words, phrases, and images used by the College and its related entities. The College claims exclusive use of all relevant marks, and no College mark may be used without the prior, written authorization of the appropriate authorities in the College. This Policy is designed to protect the reputation of the College and related entities, and to prevent income from being generated through illegal or unapproved use of the College marks.
All requests for use of College marks must be submitted in writing to the Office of Communications. If the party seeking permission to use a College mark is an entity outside of the College, be it a business, institution, organization, or an individual, that party must sign a license agreement with an official agent of the College authorizing its use of the requested College mark(s). The Office of Communications retains information concerning what names, logos, insignias, and related words, phrases, and images currently comprise the College’s marks.
However, faculty, staff, and students may reasonably use the mark for professional identification or affiliation. All products and services bearing the College’s marks and distributed for sale or other promotional purposes are subject to the licensing policies of the College.
Although “Exceptional Use of College Resources” is defined (see Appendix A), it is acknowledged that such resources and their use may change over time, with changes in technology, physical infrastructure of the College, modes of employment, etc. Therefore, this Policy allows the College to review and revise the definition of “Exceptional Use” in order to establish an appropriate standard. At the same time, this Policy allows an appeal process as defined in the Guide to Copyright and Intellectual Property at Whitman College.
The copyright policy of Whitman College affirms the College’s commitment to comply with the United States law pertaining to copyright; to respect faithfully the property rights of authors and their assignees; to educate members of the campus community about copyright law; and to exercise vigorously the rights and responsibilities granted under this law.
It is the responsibility of members of the Whitman community to determine if their intended use of copyrighted materials is considered Fair Use and to seek permission from the appropriate copyright owner(s) when necessary.
Whitman College expects all faculty, staff, and students to make a reasonable effort in good faith to comply with copyright laws in their use of copyrighted materials.
Because of the complexity of copyright law and, in particular the Fair Use exception, Whitman College will provide resources to educate faculty, staff, and students and help them make informed, careful, and situation-sensitive decisions about the lawful and fair use of works created by others.
Whitman College encourages faculty, staff and students to take full advantage of the Fair Use exception to the exclusive rights of copyright owners. However, an educational purpose of the use does not automatically make the use “fair.” Reasonable people can and will differ in their understanding of the doctrine. The copyright law itself does not provide a definitive meaning of fair use for any specific application.
Before relying on the Fair Use exception, faculty, staff and students should educate themselves regarding the limits of fair use and should, in each instance, perform a careful, good-faith fair use analysis based on the four factors identified in Section 107 of the Federal Copyright Act, including:
(a) the purpose and character of the use;
(b) the nature of the copyrighted work;
(c) the amount and substantiality of the portion used in relation to the work as a whole; and
(d) the effect of the use upon the potential market.
Faculty, staff, and students are strongly encouraged to document and retain their Fair Use analysis as a defense against claims of copyright infringement.
The Library seeks to encourage Fair Use of copyrighted materials, balancing the research needs of faculty, students, staff, and other patrons, while respecting the intellectual property rights of copyright holders and abiding by the pertinent laws governing usage of copyrighted materials. Whitman College copyright compliance guidelines for Reserves and the course management system (CLEo) materials are based on Title 17 U.S.C. Sections 106, 106a and 107. All copied, scanned, and/or reproduced materials must meet the tests of brevity, spontaneity, and cumulative effect.
Upon obtaining knowledge that material residing on its systems or networks is infringing or that its systems or networks are being used for infringing activities (or upon becoming aware of circumstances from which infringing activity is apparent), the College will act expeditiously to remove or disable access to the infringing materials and may deny the individuals responsible further access to its systems or networks. In addition, members of the faculty or staff, or students, or other employed persons who violate copyright laws may be subject to disciplinary action in accordance with established procedures. These procedures are described: for students, in the Whitman College Student Handbook; for faculty, in the Whitman College Faculty Handbook; for staff, in the Whitman College Staff Handbook.
In the event of an infringement allegation, Whitman College may offer protection to faculty or staff members who have acted in good faith in accordance with this policy and consistent with their college duties and responsibilities.
Following an investigation of the issues by the Office of the Provost and the Dean of the Faculty with input from the faculty committee assigned to oversee copyright, IP, and patent concerns, conflicts over ownership and use rights will be jointly adjudicated by the Provost and the Dean of the Faculty, the College Treasurer and Chief Financial Officer, the Chair of the Faculty, and the Chair of the Library Advisory Committee.
The College reserves the right at any time in its sole discretion to modify and/or make changes to the Policy as advisable or appropriate. The College agrees, however, that it will endeavor to notify the entire College community of its intention to make modifications and/or changes to the Policy at least 30 working days prior to their enactment.
This policy is effective from November 18, 2018 and will remain in effect until modified or revoked by the College.
The College shall have the right to determine the most appropriate forum for any litigation. In addition to applicable Federal laws, the laws of the State of Washington without regard to choice of law provisions, shall also apply in interpreting any contract or property issues raised by this Policy.
Approved by the Board of Trustees of the College and incorporated in the Faculty Handbook, Staff Handbook, Student Handbook, and College Catalog.
For the Board of Trustees:
By: Kathleen M. Murray, President [11/19/18]
We are indebted to the following institutions for their work on intellectual property policy that has informed this statement: University of the Arts, Bates College, Carleton College, and Colorado College.
Adapted and used with permission from
The University of the Arts 04/27/18
Copyright is the intangible property right granted for a limited period of time by Federal statute (Title 17 of the U.S. Code) for an original work of authorship fixed in any tangible form of expression. Copyright provides the owner of a “work” (defined in F.(a) below) with a number of exclusive rights including the exclusive right to reproduce the work, to prepare derivative works based on the work, to distribute the work by sale or otherwise, to display the work publicly and to perform the work publicly (if relevant.)
A United States patent is a property right granted by Federal statute that permits the owner to exclude others from engaging in a number of activities including the making, using, selling or importing of a claimed invention throughout the United States for a set period of time. In the United States, an invention must be useful, novel, and non-obvious to be eligible for patent protection. Similar rights are granted in other countries, but the discussion of Patents in this Policy will focus specifically on United States patent rights.
A trademark or service mark is a distinct word or phrase, name, symbol, device, picture, graphic, or some combination of these elements that is used in trade to identify goods or services. A trademark/service mark (hereinafter collectively, a “mark”) serves both to identify the source of goods/services and to distinguish those goods and services from the goods and services of others. A mark owner can prevent other entities from using the same or a similar mark in a manner that dilutes famous marks of others, or to identify overlapping or related goods and services.
A College Employee is a full-time or part-time faculty member, lecturer, visiting faculty, artist, scholar, or fellow (as defined in the current Faculty Code), or a full-time or part-time staff member (as defined in the current Staff Handbook), or student, who is employed by the College or who is working under a College contract, either expressed or implied.
A Student is a regularly registered, full- or part-time, undergraduate at the College. It includes students attending the College as “special status students” (e.g., as participants in exchange programs or through special grants or fellowships, etc.).
A Work in this Policy is defined as any intellectual property that may be: (a)a copyrightable expression, including literary works; musical works (including any accompanying words); dramatic works (including any accompanying music); pantomimes and choreographic works; pictorial, graphic, and sculpture works; motion pictures and other audio-visual works; sound recordings; and architectural works. These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.” (b)a patentable composition, method, device, article or other technology, or system, as defined by United States Federal statute. (c)goods or services that merit a trademark or service mark.
A sponsored work is a Work (as defined above) that is produced or created pursuant to a written agreement between the College and a sponsor. Sponsored works do not include works created through independent academic effort or creative activity, even when based on the findings of the sponsored project, so long as an agreement does not state otherwise.
A student work is a Work that is produced or created by a registered full-time or part- time undergraduate or “special status students” of the College without the exceptional use of College facilities or equipment or the direct use of College funds (where student financial aid and/or scholarships would not be considered “College funds”), that is produced or created outside of any employment by the College, and that is not sponsored, contracted, or commissioned by the College.
A commissioned work is defined as a Work that is produced or created pursuant to a written agreement with the College and for College purposes by (a) individuals not under the employ of the College and/or (b) College employees acting outside the scope of their regular College employment, as determined by their existing College employment contract or job description.
A “work made for hire” is defined by the United States Copyright Act (Section 101) to be a copyrightable work “prepared by an employee within the scope of their employment.” Pedagogical, scholarly, and artistic works are typically not considered by the College to be “works made for hire.” Pedagogical and scholarly works include but are not limited to books, scholarly articles and papers written for publication in journals, presentations and scholarly papers prepared for seminars and conferences, and teaching materials, including classroom lectures, seminars, presentations, and online media. Artistic works include but are not limited to photography, film, audio-visual works, sculpture, painting, choreography and the like. Course and program descriptions are deemed to be works made for hire. The Copyright Act also notes that a work made for hire includes “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Examples of works made for hire include software programs created within the scope of an employee’s duties by a staff programmer for a computer company, a newspaper article written by a staff journalist for the newspaper that employs them, and a musical arrangement or ditty written for a music company by a salaried arranger on its staff.
Independent academic effort or creative activity is defined as the inquiry, investigation, research, or creative activity that is carried out by faculty, staff and students of the College that advances knowledge or the development of the arts, sciences, humanities, or technology where the specific direction, methodology, and content of the pursuit is determined by the faculty, staff member(s), or student(s) without the direct assignment, supervision, or involvement of the College.
“Exceptional use of college resources” for faculty or student work means that the College has provided funding, facilities, or staff support of a degree or nature not typically made available. Ordinary use of desktop computers, Penrose Library, routine support from Technology Service staff (WCTS), or the use of College office space does not constitute exceptional use of college resources. In addition, the College’s provision of standard labs and studios, start-up funds, funding of sabbatical leaves, and research funding provided through normal internal mechanisms (e.g., Aid to Scholarship and Instructional Development, Perry, Innovations in Teaching & Learning grants, etc.) are typically not considered to be exceptional use of college resources.
Resources not considered “commonly provided” include specially procured equipment or space, additional staffing or personnel, significant use of personnel not to the benefit of educational mission of the College, utilization beyond normal work hours of College personnel, and monetary expenditures that require additional budgetary support. Faculty may use the basic facilities unless use infringes on student use of those facilities for coursework.
Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright holder under section 106 of the Copyright Act (Title 17 of the United States Code.) These rights include the right to reproduce or distribute a copyrighted work. In the file-sharing context, downloading or uploading substantial parts of copyrighted work without authority constitutes an infringement.
Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statuatory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.
Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.
For more information, please see the web site of the U.S. Copyright Office, especially the FAQs.
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