SENATE From the Office
From the Senate Committee on the Faculty:
Proposed Revisions to Two Policies in the Handbook for Faculty and Nonacademic Administrators
On Copyright Policy April 8, 1999
At the SEC meeting of April 15, 1998, SEC recognized that the University's current stated policy on copyright is substantially at variance with long-established University practice and general academic custom. Long-established customary practice is recognized and clearly formulated in the recommendations of the University Task Force on Intellectual Property, dated July 1995. Last year, the Committee on the Faculty, and the faculties of most of the schools of the University (some did not respond), strongly supported the established practice as most conducive to the free exchange of ideas that lies at the heart of the University community.
Pursuant to recommendation from the Committee on the Faculty, on April 15, 1998, the Senate Executive Committee (SEC) took the following actions:
"1. The University should acknowledge that customary practice is authoritative and converges with the recommendations of the task force report. The University should acknowledge that its written policy on copyrights, as presented in the Handbook, is at variance with practice and should not be regarded as authoritative.
"2. As policy is needed to cover new technology such as software, policies needed to cover these areas should be interpolated from current practices on patents and copyrights.
"3. An ad hoc committee should be established to codify the interpolation.
"All three resolutions were approved unanimously."
The Committee on the Faculty now recommends that SEC and the administration implement these recommendations by:
1. Changing the Handbook for Faculty and Academic Administrators section on copyright to conform to the language of the task force report that appears below; and
2. Appointing an ad hoc committee to codify how the University's policy on patents and the recommended policy on copyright will be applied to software and other forms of intellectual property embodied in electronic and other new media.
At the present time intellectual property issues relating to software
and new forms of courseware built upon computers, the "Net," and
other telecommunications technologies, are governed by copyright and patent
laws. The Committee on the Faculty recognizes the software and new forms
of courseware may not fit comfortably into categories recognized by patent
and copyright laws. Accordingly the ad hoc committee recommended in 2. above
may be charged to take a fresh look at the issues and make recommendations
going beyond "interpolation." In any case, the committee should
be appointed and an interim set of guidelines formulated as soon as possible.
Proposed Language for the Handbook from the July 1995 Report of the Task Force on Intellectual Property
V.D. Policy and Procedures Relating to Copyrights
Preamble
A given intellectual property may be protected in some cases inclusively by United States patent, copyright and trademark laws, and in some cases by only one or two such intellectual property laws, with each body of law protecting a different feature of the given intellectual property. Consequently, definitions in the Patent and Tangible Research Property Policies and Procedures and the Copyright Policy and Procedures will at times overlap. When a single license agreement incorporates more than one type of intellectual property protection, prior to the execution of said license agreement, a written agreement shall be executed by the University and the Authors stipulating which University intellectual property policy is applicable.
V.D.1 Policy Statement on Copyrights. The Trustees of the University of Pennsylvania, subject to the exceptions declared in Sections V.D.1.a. and V.D.1.b., affirm the academic custom of the authors have the individual right to apply for, own all right, title and interest, enforce, profit by and transfer to other parties, such as publishers, copyrights in their works under the laws of the United States and other jurisdictions. It is recommended that whenever authors transfer interests in copyrightable works, they secure for the University the right to reproduce such copyrightable works, free of royalties, for use in instruction.
V.D.1.a. Exceptions to this custom arise when works are made under government sponsored research, industry sponsored research, and certain grants in which the University assumes specific obligations with respect to a copyrightable work resulting from a given sponsored program. The Trustees of the University of Pennsylvania declare that if necessary to fulfill its obligations to a sponsor, the University will own all right, title and interest to copyrightable works created under such sponsored programs.
V.D.1.a.1. In accordance with such obligations, the University will secure an assignment from the authors of the copyrightable work prior to the commencement of the sponsored program. Authors who are also principal investigators and have responsibility for other authors will secure assignments from said authors prior to the commencement of the sponsored program.
V.D.1.a.2. The University shall negotiate a license with the sponsor in accordance with applicable provisions of the sponsored research agreement. Net revenues realized from said sponsored research agreements will be distributed in accordance with the procedures for the distribution of patent royalties described in Section 2.3 of the Patent and Tangible Research Property Policies and Procedures. When negotiating such sponsored research agreements, the University shall, whenever practicable, make reasonable efforts to protect the ownership rights of the authors.
V.D.1.b. Exceptions to this custom also arise when faculty create works considered to be "works made for hire" and are the property of the University. "Works made for hire" are those works that are prepared by the author pursuant to the express direction of a supervisor, or pursuant to specific provisions incorporated within a position description, or pursuant to part of the requirements of an academic degree. Works created by faculty authors in the course of their instructional or research activities shall not be considered "works made for hire."
V.D.1.b.1 Prior to the preparation of the "work made for hire," the University may request, and if so the authors shall provide, an assignment or other declaration of the University's ownership of that work. Authors who are also principal investigators and have responsibility for other authors will secure assignments from said authors prior to the preparation of a "work made for hire."
V.D.1.b.2 Net revenues realized from the commercialization of "works made for hire" will be distributed to the academic or administrative department or unit supporting the creation of such work, except that the Center for Technology Transfer shall be entitled to recover its out-of-pocket expenses and any previously negotiated service fee not to exceed 20% of gross revenue. Such net revenues shall be used in the fulfillment of the research, academic, or administrative mission of the department or unit.
V.D.1.c. In the event that a copyrightable work may also be defined as materials in the Patent and Tangible Research Property Policy and Procedures, the source of commercial income, i.e. whether it is derived from a patent or copyright license, shall determine whether a particular intellectual property falls under the provisions of the University's Patent Policy or Copyright Policy.
V.D.2. Procedures for the Administration and Management of Copyrightable Works
V.D.2.a. Authors who have created a copyrightable work that is subject to the provisions of Sections V.D.1.a. and V.D.1.b. shall promptly disclose the creation of such works to the intellectual property officer (IPO) with an intellectual property disclosure form.
V.D.2.b. Periodic Review of Policy and Procedures. The Policy Statement on Copyrights and these related procedures shall be reviewed on a periodic basis by a review committee appointed by the Provost in consultation with the faculty to determine whether they are accomplishing their intended purposes; are in conformity with federal and state laws, including intellectual property laws; and, are consistent with prevailing norms in university-industry relationships. The review committee shall make recommendations to the Provost and the Executive Vice President, who shall confer with the President.
V.D.2.c. The Provost in consultation with the faculty shall annually appoint a committee to resolve any disputes involving the interpretation or administration of the Policy Statement on Copyright and Related Procedures. The committee may, through equitable procedures of its own design, review, mediate, and decide any such dispute brought before it. The IPO shall provide staff support for the committee. Any decision of the committee may be appealed to the President, who will make a final decision for the University.
Additional Definitions
Assignment: In addition to Section 4.0.3 of the Patent and Tangible Research Property Policies and Procedures, the execution of a formal document which transfers the right, title and interest of an author of a copyrightable work.
Authors: The University faculty, emeritus faculty, visiting faculty, scientists or others, adjunct faculty, post-doctoral employees, or other employees, or students, who would be considered authors under copyright laws of the United States and other jurisdictions, for such works as books, journals, articles, text, administrative reports, studies or models, glossaries, bibliographies, study guides, instructional materials, laboratory manuals, syllabi, tests, proposals, lectures, musical or dramatic compositions, films, film strips, charts, transparencies, video or audio recordings or broadcast, computer software, CD ROMS, circuitry, microprocessor designs and other works that may be copyrightable under laws of the United States and other jurisdictions.
Copyrightable Work: A work fixed in tangible medium that may be copyrightable under laws of the United States and other jurisdictions.
Computer Software: the source code and the object code, and related documentation, of computer programs and designs of computer circuitry and microprocessor chips. In the context of computer software, for purposes of this policy, authorship refers to those persons who conceive of such computer software, as well as to those persons who author source code, object codes, masks, patterns and the like who would be considered authors under the copyright laws of the United States and other jurisdictions.
Proposed Revision to Policy on Extension of [Tenure] Probationary Periods March 25, 1999
(Deletions in brackets; insertions underlined)
II.E.3. Policy on Extension of [Tenure] Probationary Periods that Apply to Granting of Tenure or Promotion to Associate Professor
A. A nontenured member of the standing faculty shall be eligible for an extension of the tenure probationary period [(or, in the case of], a clinician educator[s] in the health schools[,] or the School of Social Work shall be eligible for an extension of the promotion review period of ten years [that normally occurs in the ninth year)], and a member of the research faculty shall be eligible for an extension of the six-year review period, corresponding to the semester or year during whichany of the following events occurred:
- a child is (or, provided that the child had not reached his or her second birthday, was during the immediately preceding semester or summer) born, adopted, or placed for foster care, into the faculty member's household;
- by reason of a serious health condition (as defined in Section 2611(11) of the Family and Medical Leave Act of 1993) persisting for a substantial portion of the period for which the extension is sought, the faculty member is required to act as the primary caregiver for a parent, child, spouse, or domestic partner (as defined in the domestic benefits policy); or
- by reason of a serious health condition (as defined in Section 2611(11) of the Family and Medical Leave Act of 1993) persisting for a substantial portion of the period for which the extension is sought, the faculty member is unable to perform the functions of his or her position.
In the event that both spouses or domestic partners (as defined in the domestic partner benefits policy) are members of the standing faculty, or the research faculty, or clinician educators, both spouses and domestic partners are covered by sections A.1 and A.2 of this section.
B. The length of the extension shall be one year unless the faculty member requests one semester instead and the department chair and the dean agree to its feasibility in light of the school's tenure or promotion review process.
C. Extensions of the tenure probationary period or the review period for promotion shall be without prejudice to the obligation of the University to provide faculty members with twelve-months' notice of termination.
D. Requests for extensions of the tenure probationary period or the review period for promotion shall be made in writing via the Chair and/or Dean for consideration by the Provost's Staff Conference subject to timeliness requirements adopted and publicized by the faculty member's school. Normally, requests will be viewed favorably by the University and granted unless specific and compelling factors require their denial. The action of the Provost shall be communicated in writing to the faculty member and shall specify any revised date of tenure or promotion review and termination date of the probationary period and (in the event that the request is denied) shall specify the grounds for the denial.
N.B. The statute defines a "serious health condition"
as "an illness, injury, impairment, or physical or mental condition
that involves"-- "(A) inpatient care in a hospital, hospice, or
residential medical care facility"; or "(B) continuing treatment
by a health care provider." "Health care provider" is defined
(2611(6)) as: "(A) a doctor of medicine or osteopathy who is authorized
to practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or "(B) any other person determined by the Secretary
[of Health and Human Services] to be capable providing health care services."
Almanac, Vol. 45, No. 30, April 27, 1999