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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
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