Virginia Highlands Community College   Faculty & Staff Manual
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Section 4 Title

Section 1 - Introduction

Section 2 - Organization & Responsibility

Section 3 - Personnel

Section 4 - Administrative Rules and Regulations

Section 5 - Educational Programs

Section 6 - Student Development Services

Section 7 - Miscellaneous Information

4.7 Intellectual Property (Copyright & Patent) Policies & Procedures

4.7  Contents

The following policy determines ownership rights and responsibilities regarding intellectual property produced by a student and/or an employee of the VCCS. This policy is subject to applicable law and guidelines issued by SCHEV. Although the VCCS might legally claim ownership of all intellectual property created by or for it, this policy exercises that right more narrowly in order to encourage creativity.

4.7.0 Intellectual Property Guidelines (SCHEV)

The 1986 session of the General Assembly amended the Code of Virginia by adding Sections 23-4.3, 23-4.4, and 23-9.10:4 which require that each board of a state-supported institution of higher education adopt formal intellectual property policies consistent with guidelines developed by SCHEV. The guidelines adopted by the State Council in June 1987 stipulate that a State institution must: define the nature of the intellectual property it wants to own, if any; establish procedures by which the institution shall be notified by the creator of intellectual property within the purview of this policy; install procedures designed to protect and promote said property; when required, obtain prior authorization to transfer title to said properties from the Governor; and, submit an annual report including a quantitative listing of intellectual properties owned by the institution.

4.7.1 Intellectual Property Definitions

Assigned Duty is performance of a task or project pursuant to a contractual obligation, assignment, or directive whether or not within the normal scope of one's employment.

Claim an Interest - A college may “claim an interest” in intellectual property by asserting property rights pursuant to this policy. A college may choose not to "claim an interest" in some forms of intellectual property that it does not want to own, even though it might legally be able to assert ownership.

College Policy Administrator - Each college president shall designate an appropriate college administrator to serve as the college policy administrator.

Copyrightable Material is anything that is an original work of authorship, fixed in a tangible medium of expression coming within the definition of the US Library of Congress Copyright Office.

Creator is either an inventor in the context of patentable inventions or an author in the context of copyrightable works of authorship. Creator may be assumed to be either singular or plural.

Employees are full- and part-time faculty; full- and part-time classified employees, administrative staff; and students who are paid for specific work by the College. Students may be employees for some purposes and not for others. If they are paid as student assistants, for example, they are employees. Students receiving general scholarship funds would not normally be considered employees for the purposes of this policy.

Intellectual Property includes but is not limited to any material defined within one or more of the following categories:
  1. A potentially patentable machine, article of manufacture, composition of matter, process, or improvement, in any of these;
  2. An issued patent;
  3. A legal right that inheres in a patent; or
  4. Anything that is copyrightable

Some examples of copyrightable intellectual property include:

  1. Written Materials - literary, dramatic, and musical materials or works, published or unpublished;
  2. Visual and/or Recorded Materials - sound, visual, audio-visual, and television films or tapes, video tapes, motion pictures or other recordings or transcriptions, published or unpublished; and
  3. Computer Software - computer programs, procedures and other documents involved in the operation and maintenance of a data processing system, including program listings, compiler tapes, a library of sub-routines, user and programmer manuals and specifications.

Net Revenues are gross receipts including, but not limited to: rents, royalties, dividends, earnings, gains and sales proceeds, less all original and ongoing costs and losses paid or incurred by the College and/or the employee, in connection with the creation, marketing, and/or copywriting or patenting of the intellectual property, including but not limited to: direct costs of obtaining and securing copyrights or patents, indirect costs as determined by the College, and all attorney's fees.

Reporting Period is the period from July 1 of one year through June 30 of the following year.

Royalties Received are any values received during the reporting period, including cash payments as well as the market value of any property or services received, in consideration for a transfer of any intellectual property in which a college claims an interest.

Use of College Resources

  1. Incidental Use of College Resources is that which does not 1) involve any out-of-pocket expense on the part of the institution for materials or other resources, or 2) consume more than ten percent (10%) of the creator's normal duty time, or 3) demand more than 10% of the normal work hours of assisting college employees.
  2. Substantial Use of College Resources exceeds limits defined in “Incidental Use of College Resources.” The use of office space and facilities generally available to all college employees, such as library facilities, shall not constitute a substantial use of college resources. It is the responsibility of the creator to clarify with the college policy administrator whether the use of college resources constitutes a substantial use.
  3. Significant Use of General Funds - This phrase, and the phrase “developed wholly or significantly through the use of general funds,” mean that general funds provided $10,000 or more of the identifiable resources used to develop specific intellectual property. A reasonable cost should be assigned to those resources for which a cost figure is not readily available, such as salary, support staff, and other equipment and resources dedicated to the creator's efforts. Resources such as libraries that are available to employees generally should not be counted in the assessment of the use of general funds. This definition should be used for determining when transfers of intellectual property must be approved by the Governor.

4.7.2 Applicability of Intellectual Property Policy

This policy shall apply to employees and students of the VCCS.

4.7.3 Ownership of Intellectual Property

Except as otherwise provided by separate written agreement or waiver which is executed by a duly authorized officer of a college or the VCCS, an ownership interest is claimed by the VCCS in any intellectual property produced by a VCCS employee when produced as a result of an assigned duty or with the substantial use of college resources, facilities, or funds. Notwithstanding the foregoing, unless there is agreement otherwise with the creator, the creator shall own all dissertations, theses and classroom instructional materials prepared at the creator's inspiration when such theses, dissertations or materials are produced as a result of routine teaching duties and do not involve substantial use of college resources. Further, notwithstanding the foregoing, unless there is agreement otherwise with the creator, the creator shall also own all literary works (such as poems, plays, novels, essays, musical scores, etc.) prepared as a result of the creator's inspiration unless the creator was hired, assigned or directed to create the literary work in question or substantial use of college resources was utilized. Nothing in this policy invests any rights in any person who produces intellectual property as the result of an unauthorized use of college resources. Moreover, nothing in this policy shall be construed as prohibiting the VCCS or the college from making internal use of intellectual property covered by this policy in connection with its non-profit educational activities as authorized by law. Student-Developed Intellectual Property Materials

Absent written agreement to the contrary, materials produced by a student as part of course requirements making only incidental use of college resources shall belong to the creator. Sponsor-Supported Intellectual Property Efforts

Funds and facilities administered and controlled by a college which are provided by governmental, commercial, industrial, or other public or private organizations shall be considered, for the purpose of this policy, to be funds and facilities provided by or through the college. All rights in intellectual properties made or developed through the use of such funds and facilities shall belong to the college, unless waived in writing by the college president.

A college employee shall execute such assignments, waivers, or other agreements as the college may require, but no such agreements shall be made by a college employee directly with a sponsoring organization without the approval of the appropriate college policy administrator. The college reserves the sole right to make agreements with sponsoring organizations and to include therein such provisions regarding the ownership and disposition of rights in intellectual properties as it deems to be in the interest of the college and the public. Intellectual Property Consulting Work

Faculty and staff members desiring to perform consulting work for outside organizations during hours they would normally be expected to be on campus are required to obtain the prior approval of their Dean or other appropriate college official and the college policy administrator. Intellectual properties made or developed solely in the course of consulting work performed for outside organizations and making “incidental use of college resources,” for which the approval of the appropriate administrative official has been obtained, shall not be considered as having been made or developed in the course of college employment. Unless previously stated in writing by the college policy administrator, the college shall have no property rights in such materials.

Where there is more than “incidental use of college resources,” a college employee engaged in consulting work shall not execute any agreement with any organization covering rights in any intellectual properties unless such agreement has been approved in writing by the college president.

4.7.4 Administration of Intellectual Property Policy

Responsibility for administration of this policy is vested in the Chancellor. Each president is responsible for administration of this policy at the college level. The college policy administrator, as appointed by the president, shall be assisted by an appropriate college committee in implementing the provisions of this policy. The college president shall designate the committee and its function.

4.7.5 Intellectual Property Interest Notification

A creators of intellectual property owned by the college or in which a college might claim an interest is required to properly notify the college policy administrator. A creator of intellectual property shall provide the following information to the college policy administrator:

  1. Title of creation;
  2. Name and position of creator;
  3. Name of sponsor (if applicable) including grant or contract identification, title of project, and principal investigator;
  4. Description of creation;
  5. Year in which creation was (or will be) completed;
  6. College employment status of creator/author; and
  7. If more than one creator/author is involved, percent of interest recommended to be allocated to each creator/author.

4.7.6 Protection and Commercialization of Intellectual Property

Determinations to exploit the commercial value of any intellectual property in which a college claims an interest shall be made on a case-by-case basis. Patents

In the case of patentable inventions, consultative assistance from a patent professional shall be sought when deemed appropriate. Copyrights

  1. Registration of a copyright is not generally a condition of copyright protection, but it is a prerequisite to an infringement suit.
  2. Copyright protection applies to any work of authorship as soon as it is written or otherwise recorded. When a work is published, it should contain a copyright notice: a small "c" in a circle or the word "copyright" or the abbreviation "copr.,” the year of publication, and the name of the copyright owner.
  3. Copyright registration shall be decided on a case-by-case basis as a cost-benefit decision, depending on the commercial value perceived for a work. For example, a major computer program might be registered immediately, although a newsletter might never be registered.

4.7.7 Intellectual Property Royalty Provisions

The VCCS is committed to the encouragement and recognition of the creative efforts of VCCS and its employees by sharing any financial returns equitably with the creator. Two categories of use are defined for the purpose of administering this policy.

  1. Internal Use is use within the VCCS, a college or any unit of the college, including continuing education, or any other branch or subdivision of the college.

    The author or producer of college-owned materials or materials which the college has waived ownership rights thereto shall not be paid royalties for internal use thereof.
  2. External Use is use outside the VCCS, including, but not limited to educational institutions, government, nonprofit institutions, and commercial organizations operating under lease or other contractual agreements with the college. Loan, licensing or sale of college-owned intellectual property for external use shall be determined by the college in accordance with any written agreement, if any, between the college and the creator specifying conditions/limitations of use and reproduction and reserving the right of the creator to revise the materials periodically.

    For external use of intellectual property through licensing or sale, the creator shall share in any income received by the college under the general principles of division as stated below. Determination of Equities for Intellectual Property:

  1. Prior Written Agreements

    Whenever it can be foreseen that commercially viable intellectual property will be produced, a written agreement between the college president and the college employee shall be concluded prior to the creation of that material. In the absence of such agreement, the Chancellor shall make the determination which shall be binding on all parties. Nothing herein shall be interpreted as guaranteeing to an employee any compensation or share in royalties. The provisions of that contract shall govern all subsequent determination of equities and be binding on both the college and its employees.
  2. Determination Without Prior Written Agreement

    In the absence of a prior written agreement between a college and a college employee involved in the creation of intellectual property for publication or distribution, the college policy administrator shall recommend to the president:

    1. Which rights and materials belong to the college under the provisions of this policy;

    2. Which of the exclusive rights associated with copyright, including but not limited to royalties, shall be assigned by the college to the employee; and

    3. What the respective equities of the college and of the employee shall be.
  3. General Principle of Division

    In those cases where a royalty right is being recommended for the employee, the college policy administrator shall examine relevant factors, such as existing provisions in sponsored-research contracts, use of college resources and development time, both within and without the normal scope of employment. The administrator shall then recommend to the president a specific division of net revenues between the college and the employee on a case-by-case basis using the following guidelines.

    1. Incidental Use of College Resources
    Award creator no less than 50% interest in net revenues.

    2. Substantial and/or Significant Use of College Resources
    Award creator no more than 10% interest in net revenues until the college has recovered all direct and indirect production costs. After the college recovers production costs, award creator no less than 20% interest in net revenues.

    3. Waiver of College Rights
    The college policy administrator can recommend to the president waiving or releasing college claims of property rights to intellectual property when there has been no significant use of college resources.
  4. Adjustment of Percentages

    In any given fiscal year where the costs, expenses, and losses incurred by a college in connection with commercially viable intellectual properties exceed gross revenues, the college may unilaterally defer payments of royalties to the entitled parties until the revenues exceed the costs. However, the entitlements shall remain a liability of the college, and shall accrue interest at an agreed-upon rate until paid.
  5. Division of Equities Among Employees

    If more than one person is entitled to an equity, the college policy administrator shall recommend to the president division of equities according to:

    1. Agreement among the individuals themselves or

    2. Administrator's determination of a fair division in the absence of agreement among the creators.
  6. Sponsored Research

    When intellectual property is a result of the course of sponsored research, recommendations of the college policy administrator shall not abridge the provisions of contracts to which the college or its employees are parties.
  7. Divestment of Intellectual Property

    Notwithstanding anything to the contrary in this policy, the college always reserves the right unilaterally to negotiate and enter into contracts for the exercise, sale, use, or other disposition of any and all rights in intellectual property belonging to the college, under Section 4.7.3. Ownership of Intellectual Property. College employees shall have no rights with respect thereto except any agreed-upon residual right to share in net revenues, if any. All such agreements may contain appropriate provisions pertaining to the use and re-use of the intellectual property within and without the college, the length of time in which the intellectual property may be used or re-used, and the revision or withdrawal of the material.
  8. Use of Income Derived from Materials

    Use of income received by a college from the sale or lease of intellectual property shall be in accordance with established fiscal procedures.

4.7.8 Intellectual Property Dispute Resolution

Disputes may arise involving issues including but not limited to ownership rights, division of equities, percentage of royalty payments, and publication clearance. An interested party may appeal the final proposal for copyright or patent determination as forwarded to the college policy administrator by submitting a petition to the college president at any time prior to the signing of a contract between the college and involved parties. The petition shall set forth the grounds for an appeal and a proposal for a different determination. The decision of the president shall be final.

4.7.9 Transfers of Intellectual Property

Except when the Governor's prior written approval is required, the State Board may transfer any intellectual property in which the college claims an interest.

The Governor's prior written approval is required for transfers of title to patents and copyrights that were:

  1. Developed wholly or significantly through the use of State general funds, by an employee of the institution in the performance of the employees assigned duties within the scope of employment or
  2. Developed wholly or significantly through the use of State general funds, and are to be transferred to an entity other than the Innovative Technology Authority an entity whose purpose is to manage intellectual properties on behalf of nonprofit institutions, or an entity whose purpose is to benefit the transferring institution. Prior Written Approval of Intellectual Property Transfer

When prior written approval is required, the college shall send a description of the intellectual property and the proposed transaction through the Chancellor to SCHEV. Within 30 days the Council shall recommend action to the Governor, including any conditions the Council thinks should be attached to the proposed transfer. The Governor also may attach conditions to the transfer. Transfer of Intellectual Property Created Outside the Scope of Assigned Duties

When an employee is self motivated to create intellectual property or does so as part of a general obligation of scholarship, the college may transfer title to the property, without approval, if the transfer is to one of the entities noted under Section 4.7.9. Transfer of Intellectual Property Created with Significant Use of State Funds

When an employee creates intellectual property with significant use of State funds, the college must obtain the Governor's approval before transferring the property, whether or not the transferee is one of the entities listed under Section 4.7.9. Other Employment Agreement Relating to Intellectual Properties

  1. An employment agreement which allows certain intellectual properties to be retained by an employee from the moment of their creation is not a "transfer" to the employee and hence, need not be reported.
  2. An intellectual property that is owned by the institution and later transferred to an employee is a "transfer" and should be reported if it meets the requirements of Section 4.7.9. a. or b. Subsequent Transfers of Intellectual Property

The requirement for approval of certain transfers refers to transfers by the college itself, not to later transfers made by anyone other than the institution.

4.7.10 Intellectual Property Reporting Requirements

The General Assembly has directed SCHEV, in cooperation with the Innovative Technology Authority, to collect and report certain information about intellectual property. Each college must collect and report information for the preceding fiscal year. Each annual report should include the following information:

  1. The name of the college;
  2. The name of the official submitting the report;
  3. The number of intellectual properties in which the college claims an interest under its intellectual property policy. The number should be divided into patentable subject matter and copyrightable subject matter;
  4. The name of all transferees to whom the college has transferred any interest, including licenses, in intellectual properties (This requirement does not refer to later transfers made by anyone other than the college.);
  5. If the college is prohibited from disclosing the identity of the transferee of any intellectual property, the college shall identify the particulars of the transfer and state the reasons why such information may not be reported; and
  6. The total royalties received by the college during the reporting period.