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4.1 Intellectual Properties

Purpose
The purpose of this policy is to define the respective rights of creators and of the university in intellectual property ("IP"). The University of North Georgia (UNG) recognizes the significance of teaching and the supporting character of the scholarship and other IP created by its faculty, staff, and students in the course of their regular work. Universities should be places where innovation and creativity can flourish. To encourage such work, and in recognition of the efforts of its constituent members, the university distinguishes between IP created in the normal course of work and IP created under a specific contractual arrangement. Creators shall hold exclusive rights to IP created in the normal course of work-products of learning activities, exercising regular staff duties, teaching, writing, publishing and performing, etc. If the university and a faculty member, staff member, or student enter into an agreement about "assigned work," specific rules about the ownership, the commercial use, and the distribution of revenues will apply (see below).

Definitions
For definitions, refer to Board of Regents’ policy (6.3 Intellectual Properties - Board of Regents Policy Manual).  For the purposes of UNG, textbooks have the same status with respect to the creator's IP rights as other published material. 

Instructions for Registering Intent to Create Intellectual Property
When a member of the university community (student, staff, faculty) plans to develop IP and seeks to make special arrangements with the university or with outside funding organizations in order to develop intellectual property, the person must begin by contacting UNG's Office of Grants and Contracts Administration (GCA).

The GCA will then begin discussions on the best way to achieve the intended results. Furthermore, the office will be responsible for maintaining a file of agreements, disclosures, revenue-sharing documents and all other paperwork related to the production of IP. The staff of the GCA will direct the potential creator to other offices on campus as may be required; e.g., the VP for business and finance, HR, the provost, or other applicable entities.

Determining Ownership of Intellectual Property
Definitions for purposes of this statement:
The “creator” of Intellectual Property (IP) shall be determined to be the person or institution that has or shares a primary interest in the creation of the IP in question.   A creator refers to the person and/or institution that conceives, develops, perfects, or otherwise makes a substantial contribution to the creation of IP.  A creator of any IP owns that IP (or a percentage of that IP in the case of co-creators).

The university may share in the proceeds of IP and be considered a creator or co-creator only under circumstances wherein the institution has actively and intentionally agreed to provide (and resulting from said agreement actually does provide) extraordinary and substantial support specifically for the creation of said IP. Additionally, such extraordinary and substantial support must be actively and intentionally accepted by the primary “creator.” A written agreement is required to indicate the university's interest in all such cases. 

To qualify as “extraordinary and substantial university support” the university's participation in or support of the creative or developmental activity leading to IP must be active and intentional, material, significant, and beyond the resources normally provided to individual faculty, employees, staff members, and students.

The provision of normal and customary compensation, student financial aid, library resources, office or laboratory supplies and facilities, office staff or laboratory support, telecommunications facilities at routine levels, individual personal computers, and ordinary and reasonable access to the university's computer network and websites (or similar university-provided electronic communication tools used for non-commercial scholarly pursuits), and all other similar services, supplies, and facilities does not constitute “extraordinary and substantial university support.”

The terms “normal” and “customary” are subject to change as technology and university operations evolve. Ordinarily, “normal” and “customary” will be defined through general published procedure, actual practice, and/or established university policy.

Discussion and Illustrations of Extraordinary and Substantial University Support
“Extraordinary and/or substantial support” may include such elements as awarding release time, purchasing specialized equipment, paying support staff or providing student assistants specifically to assist the creator, or otherwise entering into the creation of IP after said project has been conceived (and/or otherwise begun) and providing significant support beyond the usual day-to-day support provided for teaching and/or research.

To qualify as having offered extraordinary and substantial support, the institution must actively desire and direct that the work be done and intentionally provide most or all of the financing, staffing, and/or material support (beyond the normal and customary levels) required for the work to end in a successful product.

The university may be considered the plenary “creator” of IP only in the limited circumstance wherein the institution has specifically hired staff (including the faculty and/or researchers responsible for conception, development, and/or completion) with the express intention of creating, ab initio, specific IP.

In certain instances, the university might hire an outside “creator” specifically to develop a project that was begun beyond the purview of this university. In such cases, the institution may not be considered the plenary “creator” but, at most, only a “co-creator” of the IP brought in under such a hire. However, there must be a clearly defined understanding (in writing created before said hire is made) that the staff, faculty, and/or researcher specifically agrees to share IP proceeds with the institution.

In the limited instances where the institution is deemed a “co-creator,” the "UNG Intellectual Property Revenue Distribution Guidelines" shall apply to indicate what percentage split between creator(s), department(s), and institution(s) should exist. The percentage split determined in these guidelines may be modified at any time by mutual consent of all parties involved under the provisions of this statement.

The cases numbered I through VIII constitute possible scenarios of extraordinary and substantial support.

I. The university actively and intentionally provides use of university software designers, programmers or other information technology staff or university computing or telecommunications facilities specifically for the creator's use in developing the agreed-upon IP, and these services and/or facilities are substantially above and beyond the services and facilities provided to other members of the institution.

II. In the case of students, the university actively and intentionally provides support beyond ordinary and reasonable classroom/laboratory resources provided in conjunction with a specific academic program.

III. In the case of any instructional materials, curricula, examinations, teaching or learning aids, “lessonware,” “courseware” or other student interactive audio/visual material created or used by any faculty, employee, staff member or student, extraordinary and substantial support would mean such materials:

  • are created under the active and intentional direction of the university and
  • are part of a university-initiated strategic plan for remote or distance education or cyber teaching program, and
  • have been substantially supported by the university, beyond the usual day-to-day support provided for teaching and/or research.

IV. The university owns special or rare holdings such as museum collections, rare manuscripts or books or the like that constitute a substantial portion of the IP in question.

V. The creator of IP makes use of university-provided student assistance substantially beyond that which is normal and customary for the department or division in question.

VI. The creator of IP uses substantial creative or developmental contributions from university faculty, employees, staff members, or students while those persons are engaged in the course of their regular university employment or academic program (excluding the creator(s)'s own contributions).

VII. The IP in question substantially uses voice(s) or image(s) of persons in their roles as university faculty, employees and/or staff members or substantially uses of university property in such a manner as otherwise to infringe upon university copyright, patent, trademark, or other such rights.

VIII. The use in IP of the university's name or insignia, or the name or insignia of any of its affiliate organizations (other than for the purpose of identification of places and/or individuals) to promote any product, services or enterprise, or any other identification or reference in the IP that could reasonably be understood by members of the public to imply approval or endorsement by the university or any of its affiliate organizations.

Illustrations
In a first case, where an employee works both in the office and at home developing an Internet database or writing a novel, or other such enterprise, that employee is not being given the degree of institutional support required for the university to assert any interest in the resultant IP despite the employee's use of the office computer, computer services, telephone, copy machine, paper, and all other services and materials available to said employee in the normal and customary course of the day.

In a second case, where an employee is substantially employed to develop software solutions, or other such enterprise, that employee is being directed and supported to some degree to produce potentially valuable inventions. That degree would need to be determined, either by institutional guidelines or a mutually agreed percentage split, and the resultant profit split should flow accordingly.

In a third case, where UNG hires a person or persons specifically to develop a new type of insect-resistant plant, or other such enterprise, and then provides all financing, space, and special equipment to cause the invention to occur, then the institution has greater (but probably not exclusive) rights to the profits resulting therefrom. Even in such a case as this, the conception, development, and successful completion of the project should earn the primary individual involved some agreed-upon share of the resultant profits flowing from said IP.

UNG Intellectual Properties Committee
An Intellectual Properties Committee (IPC) will be appointed by the university president in accordance with BOR policy (6.3 Intellectual Properties - Board of Regents Policy Manual). The committee's composition and duties are included in the Faculty Senate's bylaws. The committee acts in an advisory function to the president.

UNG Intellectual Property Revenue Distribution Guidelines
Applicability
Allocations are calculated for each innovation/creation and are not affected by changes in the licensee(s) for any particular innovation/creation.  The decision to license multiple, related innovations/creations as if they were one innovation/creation will be made by the IPC in consultation with the creators of the works. If there are multiple developers/creators and more than one innovation/creation covered by a single license agreement, the majority of the developers/creators will determine the weight that each innovation/creation should be given in order to calculate the developer's/creator's share. The results of this calculation will also be used to distribute the other shares. A net accumulation will be calculated for each innovation/creation but accumulation limits (see below) apply to the multiple, related innovations/creations as if they were one innovation/creation.  Decisions about whether licenses shall be exclusive or non-exclusive shall be made by the IPC in consultation with the creator(s).

The university's administration may reallocate central university funds and must approve any exceptions to the policy. The IPC will resolve disagreements about matters of definition and the applicability of distribution policy.

Unless the university and the creator have come to a prior written agreement the following distribution model shall apply. Expenditures for continuing development may be subject to limitations imposed by external entities with whose support these ideas were conceived.

Distribution of revenue from Intellectual Property substantially supported by the university

Net income is defined as the gross monetary payments the university receives as a

Result of transferring rights in the intellectual property less the university’s expenses (including legal fees) directly related to protecting, developing, and transferring that intellectual property.  The university’s administration reserves the right to deduct additional sums for extraordinary expenses.  After deductions the distribution of net income will be as follows:

 Revenue Distribution for University-Supported Intellectual Property Net Income

Distribution

Net income up to $25,000

Net income above $25,000

Creator

85%

60%

Creator's Research and Innovation Account

15%

10%

Department’s Research and Innovation Account

0%

10%

College’s Research and Innovation Account

0%

10%

University’s Research and Innovation Account

0%

10%

The following examples are given as illustrations of representative dollar amounts for intellectual property at varying levels of net income.

Example for IP generating $100,000 in net income:

Distribution

First $25,000

Above $25,000

Total

Creator

$21,250

$45,000

$66,250

Creator's Research and Innovation Account

$3,750

$7,500

$11,250

Department’s Research and Innovation Account

$0

$7,500

$7,500

College’s Research and Innovation Account

$0

$7,500

$7,500

University’s Research and Innovation Account

$0

$7,500

$7,500

Example for IP generating $200,000 in net income:

Distribution

First $25,000

Above $25,000

Total

Creator

$21,250

$105,000

$126,250

Creator's Research and Innovation Account

$3,750

$17,500

$21,250

Department’s Research and Innovation Account

$0

$17,500

$17,500

College’s Research and Innovation Account

$0

$17,500

$17,500

University’s Research and Innovation Account

$0

$17,500

$17,500

If new versions of intellectual property (e.g. software/new media) are significantly different from previous versions, the new versions will be considered separate innovations/creations for the purpose of determining revenue distributions.

Accumulation limits apply and are specified below.

Share for the Creator

The creator can be a person or persons or a department, college or the university. Developers/creators can also be a mix of more than one of these categories.

Developers/creators determine allocations of this share among themselves; the IPC will resolve disagreements.

In those cases in which the developer/creator is an individual, his/her share will not be altered when affiliation with the university is terminated. In the event of his/her death, his/her share shall inure to his/her estate.

Share for the Creator's Research and Innovation Account

The developer's research and innovation account can be controlled by a person or persons or by a department, college or the university. The account can also involve a mix of more than one of these categories.

The developer's research and innovation account may be used only for university research, innovation, or educational purposes designated by the developers/creators.

Any amount in excess of $500,000 received in a given year reverts to a strategic initiative fund maintained by the university and used for internal funding of research, teaching, and innovation projects.

In those cases in which the creator is a person whose affiliation with the university is terminated, the creator's research and innovation account will be transferred to the university. For these purposes, emeritus status is considered as continuing affiliation with the university.

If there is more than one creator, the same allocation percentages that govern the creator's share will be used for internal allocations of the creator's research and innovation account. Graduate students with no innovative areas of their own will not receive a portion of the creator's research and innovation account.

If there is more than one creator and one of them leaves, the creator's research and innovation account will be reallocated among the remaining creators. New allocation percentages are based upon original ratios. For example, if the original ratio was 50/25/25 and a creator with 25% leaves, the new ratio will be 67/33. If all creators leave, the creator's research and innovation account share reverts to the university to be reallocated.

Share for the Department's Research and Innovation Account

The department share may be used only for university research, innovation, or educational purposes designated by the department.  Any amount in excess of $1,000,000 received in a given year reverts to a strategic initiative fund maintained by the university and used for internal funding of research, teaching, and innovation projects.

If a creator belongs to more than one department, the unit(s) within which the innovation/creation arose receives the department share. Allocations among departments are determined by the departments according to the contribution each department made to the development of the innovation/creation; the IPC will resolve disagreements. If the creation involves several creators from different departments, allocation of the department share will follow the allocation ratio used for the creator's share. The department share is unaffected when a creator's affiliation with the university is terminated.

Share for the College's Research and Innovation Account

The college share may be used only for university research, innovation, or educational purposes designated by the dean of the college.  Any amount in excess of $5,000,000 received in a given year reverts to a strategic initiative fund maintained by the university and used for internal funding of research, teaching, and innovation projects. If the creation involves several creators from different colleges, allocation of the college share will follow the allocation ratio used for the creator's share.

The college share is unaffected when a creator's affiliation with the university is terminated.

Appeals Process
Disputes regarding the application of this policy may be appealed, in writing, to the provost.  All appeals will be referred by the provost to the Intellectual Property Committee, which will make a recommendation to the provost within thirty (30) business days or less of its receipt of the appeal. The provost will then make a final decision, which shall be made no later than forty-five (45) business days of the provost’s receipt of the appeal. If an individual wishes to appeal the decision of the provost, or if a decision is not made within the time specified above, the individual may appeal to the president, in writing, within forty-five (45) business days of the provost’s decision. The president shall make a decision no later than forty-five (45) business days of the president’s receipt of the appeal. If the individual wishes to appeal the decision of the president, or if the decision is not made within the specified time period, then the individual may appeal to the Board of Regents in accordance with Article VIII of the Bylaws of the Board.

Additional Resources:

UNG Intellectual Property Disclosure Agreement

AAUP “Statement on Copyright

AAUP “Sample Intellectual Property Policy & Contract Language

Intellectual Property Committee
Purpose: The Intellectual Property (IP) Committee shall recommend to the president or his or her designee the rights and equities in intellectual property created by faculty, staff, or students of the institution. The committee will also provide oversight for appeals within the institution in the event of a disagreement as to the ownership and use of such materials.

Composition: The committee shall be composed of the following members:

A. Chair - The Chair of the Intellectual Property Committee shall be a faculty member appointed by the president from the following list.

B. Administration members:

Representative from Office of Business and Finance

C. Faculty members:

Five (5) faculty members, one from each college, appointed by the Leadership and Appointments Committee.

Members shall serve staggered two-year terms.

D. The committee may also appoint up to three (3) additional members who have expertise in the field of IP.

Duties: The Intellectual Property Committee is a university-wide committee whose purpose shall be to advise the president or his/her designee on matters related to intellectual property policy and its application. The committee shall review disputes regarding the application of intellectual property policies and make recommendations to the provost for resolution. The committee shall also serve as a forum for the receipt and discussion of proposals to change existing institutional intellectual property policy and/or to provide recommendations for contract negotiations. The committee shall monitor changes to the BOR policy on IP

(Pending Approval by Academic Affairs Committee, July 2013)

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