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Distributing UC Davis's Copyright-protected Work

As a world-class educational and research institution, all kinds of copyright-protected materials are created at UC Davis, which has an interest in promoting unfettered and widespread dissemination without incurring undue risk or obligation. Sharing copyright-protected work that belongs to The Regents of the University of California requires thoughtful consideration, but can be simple and quick if you plan ahead, as many necessary steps are easier to do as the material is created rather than after-the-fact. Follow the step-by-step below.

Know As You Go

Distribution Preparation

When UC Might Not Own the Copyrights

IP Management Plans in Proposals With Copyrights

Concerns in Academic Publishing

Software is Special

Copyright

Know As You Go

  • The definition of “author” for copyright purposes and for scholarly articles is not the same.
  • The university has the sole right to determine the specifics of outside distribution for works it owns.
  • UC Davis employees do not have signature authority for copyright agreements; unauthorized agreements are void and related expenses may to be paid by the individual(s) who signed them.
  • In unusual circumstances the university may, at its sole discretion, share royalties with certain employees after development and distribution costs are recovered.  See UC policy at III.D here.
  • The irrevocable nature of digital distributions makes compliance with US copyright law critically important.
  • If there are people recognizable in images or recordings included in copyright-protected work, there's an additional concern - they have a right to privacy or publicity.  It's best to always get their written consent before you do anything.  You can find a generic form here.

 

Copyright

Distribution Preparation

Step 1:  If you are new to copyrights, find UC Davis basic copyright information here.

Step 2:  Make sure the work belongs to The Regents rather than a research sponsor or an individual author or artist. If the work doesn’t belong to The Regents, decisions and actions such as signing publication agreements (see Concerns in Academic Publishing below) are the responsibilities of the author or artist, although it is sometimes necessary to have a written agreement between The Regents and the author/artist. See the UC Policy on Copyright Ownership.

Step 3:  Complete a Proposal to Distribute Copyright-Protected Work Created Under University Auspices.  Plans for distribution of copyright-protected works which belong in whole or in part to The Regents, or for which UC Davis resources, funds or facilities (such as computers, but not including libraries) have been/will be used, must be approved by Technology Transfer Services so that necessary legalities and policies are complied with and appropriate licenses, including waivers of liability, are used.

For materials which are of limited interest, value or risk, a cursory review of the copyright-related issues may suffice. For projects that are large, resource-intensive, experimental, or which involve non-university authors or funding, an in-depth review and multiple sub-agreements and approvals may be necessary. Regardless, the University’s Principles Regarding Rights to Future Research Results in University Agreements with External Parties requires that distributions of externally-funded research results, including software, meet eight specific principles. Distributions which don’t meet the principles will not be approved, so be clear in your Proposal about the goals.

Step 4:  The copyright experts in InnovationAccess will help you with the legalese of waivers of liability, copyright notices, copyright licenses and assignments from authors or artists, publication or distribution agreements and copyright registration as appropriate. No distribution should occur until the Proposal has been approved by UC Davis Technology Transfer Services.

Step 5: Proceed with your distribution, and as concerns and new situations come up, contact UC Davis InnovationAccess for ongoing assistance.

Copyright

When UC Might Not Own the Copyrights ...

Non-university employees (such as visitors and collaborators) may develop copyright-protected works using UC Davis resources, funds or facilities (such as computers, but not including libraries). Clarifying facilities, financial obligations and copyright ownership in advance can avoid serious misunderstandings and unresolvable legal problems later. Per UC policy (III.A.6), an agreement must be done in advance. Contact UC Davis Technology Transfer Services for assistance.

For Independent Contractors/Consultants, specific copyright terminology must be in the Purchase Order or other agreement before the material is created; without it, you may irrevocably lose control of the material you paid to have made.  UC policy (III.A.5) is to own the copyright to material it contracts for. If the proposed independent contractor/consultant insists on owning the copyright to the material, an Independent Contractor or Consultant Agreement should not be used.  Instead, a Copyright License (at a fee commensurate with the limited scope of the license considering exclusivity, duration, territory and media, rather than payment for full development cost) is appropriate contract.  Contact UC Davis Technology Transfer Services.

Instructional materials created by UC Davis instructors using exceptional UC Davis resources may require a written agreement regarding use and distribution.  Under UC policy, most instructors own the copyright to their instructional materials but The Regents' reserves the right to continue using them for instructional purposes after the instructor leaves UC Davis.

The digital world occasionally presents a problem in the form of recordings of lectures, presentations, syllabi and other instructional materials showing up on the Internet without the instructor's advance knowledge or permission.  Only the copyright owner can assert copyright infringement; however, The Regents has a policy intended to assist the instructor with this.

University employees may create work related to, but outside of, the course and scope of their University employment, with or without UC Davis resources. Under UC policy (III.A.6), there is flexibility as to ownership, licensing, reimbursements and royalties, but they must be resolved in writing in advance. Contact UC Davis Technology Transfer Services as early as feasible.

Copyright

IP Management Plans in Proposals With Copyrights

Some sponsors require an "Intellectual Property Plan" as part of a proposal.  Good language to use when there might be copyright-protected results is:

Copyright-protected property generated in the course and scope of the Research Project that belongs to The Regents under the UC Policy on Copyright Ownership will be made available as appropriate under the “Principles Regarding Rights to Future Research Results in University Agreements with External Parties.”

Once you have more specific plans about what you have and how you might distribute it, you can follow the Distribution Preparation process above.

 

Copyright

Concerns in Academic Publishing

Academic scholars often face a copyright dilemma in the “publish or perish” requirement.  Many/most academic journals require that each author assign his/her copyrights to the journal in order to be published, but this is slowly changing. There are other ways to allow publication without such a sacrifice, including open access journals which are, increasingly, peer reviewed.  For an extensive list of publishers and their positions on author's copyrights, check out the Sherpa RoMEO database.

Because copyright to academic papers and books typically belong to the faculty authors under the UC Policy on Copyright Ownership, UC Davis neither signs publication agreements nor gives legal advice regarding them. However, the ad hoc University of California Special Committee on Scholarly Communication published several reports on the subject. Self-help ideas on protecting your own works when getting published can be obtained from SPARC. For information on open access publication, see here.

Because copyright to academic papers and books don't belong to The Regents, publishing costs such as for editing or indexing cannot be paid with "University Resources", which includes any funds paid from a Regents bank account (even if gift or research funds) or use of staff to handle copyright licensing.  (See the UC Policy on Copyright Ownership and the Standards of Ethical Conduct, Section 10.)  An exception is when there has been a grant or subvention for that particular project by the university's senior leadership (Chancellor, Vice Chancellor or Dean) or the Academic Senate, occasionally offered to new faculty as start-up funding.  You will need to include a copy of the written grant, including a specific reference to the project, to University Accounting when requesting the services.  This should be done prior to engaging the individual to ensure that copyright is handled properly, or the editor/indexer could end up owning the copyright!

 

Copyright

Software is Special

Software may be protected by both patent and copyright.  Because copyright ownership is based on authorship, and because software is often developed by multiple programmers, copyright ownership of software developed in the course of research at UC Davis can be quite complex, as it can include faculty, current and past graduate students, undergraduates, and staff as well as visitors.  For more information, see the UC Policy on Copyright Ownership.  Depending on the nature of the software, it may be more appropriate to complete a Record of Invention than a Proposal to Distribute (both forms here).

A common question is about "open source" (OS) licenses, which means simply that source code is available in some way, including under a secrecy agreement or at a cost.  In the spirit of sharing our research for the public good, the concept is a good one.  University policy is to encourage use of its intellectual property freely for academic and scholarly research, and to get a "fair return" when appropriate, such as on commercial distributions.  However, there are hundreds of OS licenses, including some which don't actually do what their reputation says.  Therefore, some OS licenses are prohibited for use on Regents'-owned code.

For example, rather than encouraging broad, open use of source code, the "GPL" (GNU General Public License) and the Apache 2.0 put strict, permanent limits on redistribution.  On the opposite end, the BSD (Berkeley Software Development), one of the original OS licenses, allows pretty much any use by anyone including allowing someone to commercialize code they didn't write.  That's not acceptable for reasons related to research grants and the public university licensing principles which the University of California endorses.

The most common OS license used at UC Davis is a variation of the BSD, which allows free use by nonprofit research institutions without requiring a formal individual license, but directs potential commercial users to ask first in the event there should be limits or shared revenue is appropriate.

If you have used any code that you obtained elsewhere in your own code, even if you modified it heavily for your own use, you must know the license that applied to that code when you obtained it, as it may dictate/limit your distribution rights.  As a general rule, while you may obtain and use code obtained under these OS licenses (except for the MPL), you may not (re)distribute code obtained under or using the following OS licenses without advance approval:

  • Apache 2.0 on
  • Common Public License (CPL)
  • Eclipse Public License 1.0
  • GNU General Public License 3.0 on (GPL)
  • Lesser General Public License (LGPL)
  • Mozilla Public License 2.0 (MPL)

There are other OS licenses which allow sharing of source code without violating university policies.

 

A Material Transfer Agreement is not the right way to transfer software, as it does not use the proper legal copyright or proprietary protection language and can permanently damage our ability to share it.

For more information, contact copyright (at) ucdavis (dot) edu.

Copyright

Definitions of capitalized terms and FAQs are on the University of California copyright website

If you have an ucdavis(dot)edu email address you can join the copyright-info listserv or email questions to copyright (at) ucdavis (dot) edu.

Disclaimer: This information is not intended to be legal advice about your personal copyrighted property or situation. If you have questions about your own copyright protected work, please consult an attorney with expertise in copyright. UC Davis students may be entitled to a free consultation through ASUCD.