March 22-23, 2001

TO:  Board of Regents

FROM:  LeRoy H. Schramm, Chief Legal Counsel

RE:  New Policy on Ownership of Electronic Course Materials

DATE: November 16-17, 2000 (as revised for January 18-19 and March 22-23, 2001)

This Item is a proposed new policy on (1) ownership of electronic course material developed by University System Employees, and (2) the division of income derived from such electronic course materials. The policy would be directly applicable only on campuses that do not have collective bargaining contracts that deal with this subject. However, even on bargaining campuses Regents policy often serves as a model for the contract clauses, so over time this policy may have some influence even on bargaining campuses.

Existing Regents Policy already covers ownership rights to patentable and copyrightable material developed by University System employees. But electronic course material may be either copyrightable or patentable, so it may not always be clear which policy is applicable. The new policy eliminates any ambiguity by putting electronic course material in a separate class. The substance of the new policy is roughly similar to the Regents existing patent policy. Similar to the patent policy, this draft covers only materials developed as part of an employee assignment or with the use of the Systems facilities. The definition of this latter phrase in Section 1 is broad enough to cover materials developed on University computer equipment. And like the patent policy, the new policy creates a bifurcated standard for the division of income. If electronic course materials are developed at the direct behest of the employer, the System retains 100% of the income. In all other cases the presumption is that net income will be divided 50/50.

However, the 100 and 50/50 percentages, as well as other provisions of the policy, can be varied by contract, although significant deviations must be justified. Also, the policy limits the use of covered electronic material for other schools unless the employee gets prior permission.

One might question just what the value of this policy is if virtually all of the terms laid out in the policy can be varied by contract at the campus level. The policy is written in such a manner because it seemed impractical to draft a one size fits all policy when the circumstances to which the policy applies will be varied, and maybe even unforeseen. But the policy enunciates a Regental expectation that the campuses will treat electronic course materials as a potentially valuable asset and that the University Systems legal rights to such materials should be guarded and handled with care.

This policy was the object of a substantial amount of discussion at both the November and January meetings. As a result of the November meeting subsection 1,c was added. This addressed the criticism that the initial draft gave the University System ownership of traditional classroom materials merely because they might become fixed in an electronic medium (putting a reading list on a web site was the example used). At the January meeting the Regents adopted three additional amendments. The amendments are either underlined or struck through in the draft now before the Board. The gist of the three amendments is to (1) more clearly define the scope of material covered; (2) emphasize the sharing of income between the school and the developer, and; (3) underscore the faculty member's general right to continued use of covered materials. The Board delayed final action on the amended proposal until the March meeting so that interested parties would have a chance to review the newly adopted changes.