Radford University’s Intellectual Property policies are, like those of other Virginia universities, unique to the institution. Unlike university systems in some other states, Virginia allows considerable variance in policy areas like faculty intellectual property. Usually this involves copyright, but in some cases may involve patents. (Trademark, the third form of IP, is not germane to faculty issues).
At Radford, your work is yours alone unless you are assigned a specific task outside of your regular teaching and research responsibilities, or unless you are paid more than $10,000 for participating in specific work.
According to the faculty handbook, Section 3.4.2, p. 62
The university has an interest in intellectual property if and only if:
- – the property results from or is developed by faculty or employees acting within the scope of assigned duties; or
- – the property results from or is developed wholly or significantly through the use of state general funds
“Assigned duty” is narrower than “scope of employment,” and is an undertaking of a task or project as a result of a specific request or direction. A general obligation to do research, even if it results in a specific end product such as a vaccine, a published article, or a computer program, or to produce scholarly publications, is not a specific request or direction and hence is not an assigned duty. In contrast, an obligation to develop a particular vaccine or write a particular article or produce a particular computer program is a specific request or direction and is therefore an assigned duty.
The phrase “significant use of general funds” and the phrase “developed wholly or significantly through the use of state general funds” mean that state general funds provided $10,000 or more of the identifiable resources used to develop a particular intellectual property.
One new example of assigned duty is the development of online courses that are being marketed by third parties, such as Academic Partners. In these situations, faculty are offered voluntary additional contracts for developing courses, and our information does not indicate that payments have exceeded $10,000 per course, which would mean that the faculty still own the copyright on teaching and research materials presented in the course.
Patents are treated differently than copyrights under RU policy. The handbook states:
Where the University properly claims its interest in intellectual property, the inventor or creator shall be entitled to receive fifty percent (50%) of net royalties or other income accrued to the university by its sale, lease, licensing, exchange or other disposition of such intellectual property.
This 50-50 distribution is typical of patent royalty payments and is usually the product of a state or federally funded research program where the university has invested far more than the $10,000 threshold for IP that we see in the policy above.
What’s the difference
… between copyright, trademarks and patents?:
Here’s an example from the US Patent and Trademark office: Imagine you invent a new type of vacuum cleaner. You might apply for a patent to protect the invention itself. You could apply to register a trademark to protect the brand name of the vacuum cleaner once its being sold on the market. And you might register a copyright for the TV commercial you use to market the product. Those are three different types of protection for three separate types of intellectual property: brands, inventions, and artistic works.
Copyright and patent duration
Patent — 28 years. The expiration of patent protection is why we have “generic” as opposed to brand-name drugs.
Trademark — Brands — Registration usually lasts indefinitely. Trademark rules are enforced under the Lanham Act, which prevents infringement and false advertising.
Copyright Creative works – Registration is from 70 to 120 years, depending on the circumstances, according to the US Copyright Office.
Individual works copyrighted after 1978 are protected for the life of the author plus 70 years.
Works for hire, that is, creations copyrighted by corporations, are protected 120 years from date of creation or 95 years from publication, whichever is shorter.A “work for hire” is when an employee creates copyrightable art, literature, music or other creative work and, under contract, assigns that work to the employer. Without a contract, the law assumes that the work belongs to the original creator.
Works copyrighted before 1978 have a protection of 95 years. This means that works created before 1925 are in the public domain in 2020 and may be freely used for any purpose. Works created before 1926 are in the public domain in 2021. And so on.
The limits of copyright
Public domain works are those that have fallen out of copyright over time or have never been copyrighted. They are free for anyone to use. Anything created before 1925 (or, 95 years ago, this being written in 2020) is in the public domain. All government documents, texts of laws, photos and images produced by the US (for example. NASA or the EPA) are in the public domain from the beginning. All state and federal legal codes in the US are in the public domain.* In the UK, all government documents fall under an open government license.
Creative Commons License or other open source licensing arrangements mean that an author is giving others permission to share and build on an otherwise copyrighted work. In many cases, this will mean that a work is available for non-profit uses with attribution.
Fair use (US) — Students, authors, pundits, educators and others are free to cite portions of a work under copyright for the purposes of discussion, debate or education so long as there is no commercial value in using portions of the works. Just how small a portion, and how little commercial value is still being worked out. Over the years, the “fair use” concept under Title 17 Section 107 has eroded to some extent, but the four part test of fair use is described in the Copyright statute and also in court cases. The test involves:
- the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes;
- nature of material itself
- percentage used in relation to the work as a whole; and
- effect on the market for or value of the original works
Work for hire doctrine
Anything you create and fix in a tangible medium (write down or record) is automatically yours. You don’t have to register a copyright.
If you work for a commercial company in a research or creative capacity, and produce something for that company, then the company probably owns that research and you probably agreed to that in writing when you joined that company. This is “work for hire.”
If you are a freelancer and you create something for a company, and there is no specific contract assigning copyright to that company, the creative product is yours.
This “work for hire” doctrine was tested in Community for Creative Non-Violence v. Reid, 1989 A sculptor was commissioned to depict a homeless man by a non-profit organization called the Community for Creative Non-Violence. The sculptor was not an employee of the group and there was no specific contract. Reid, therefore, was the owner of the copyright to his work even if CCNV paid for his time and the copy of the sculpture.
University faculty are anomalous to the work for hire rules. While we work for a university, we do not have an agreement to give our intellectual property to the university, as noted above in the Faculty Handbook. There are a number of reasons why this is so. Chief among them is that faculty have academic freedom to write and speak without fear of being silenced through a copyright action by university authorities.