XVI. Intellectual Property
Intellectual Property Policy for Sponsor-Supported
Efforts of Faculty and Librarians at Lesley University
PREAMBLE
Lesley University, hereinafter referred to as "LU," is dedicated
to teaching, research, and the extension of knowledge to the
public. LU recognizes and encourages the production and publication
of scholarly works and research as an integral part of the process
of teaching, research, and service. Inventions and materials,
including the development of new and useful materials, software,
devices, processes, and other inventions, some of which may have
potential for commercialization, and which qualify for patent or
copyright protection, may come about through the activities of LU
faculty and librarians who have been aided wholly or in part
through external funding awarded to LU. LU therefore establishes
this Intellectual Property Policy that is consistent with the
Memorandum of Agreement of April 25, 2003 between the Massachusetts
Board of Higher Education and the Massachusetts Teachers
Association acting through the Massachusetts State College
Association (the "Memorandum of Agreement").
Intellectual Property, for the purpose of this policy, is
defined as creative and scholarly works and inventions that may be
protected under the laws of various countries that establish rights
called "Intellectual Property." This term includes patents,
copyrights, trade secrets, trademarks, plant variety production and
other rights (definitions are included in Section V) and includes
"intellectual property" within the meaning of the Memorandum of
Agreement, which states that " 'intellectual property' shall mean a
legally cognizable interest in a work or creation of whatever kind,
including a copyright or patent."
I. POLICY STATEMENT
It is the policy of LU that copyrights, patents, and all other
Intellectual Property rights arising from aesthetic, scholarly, or
other research, when developed through independent efforts and not
as part of a directed institutional assignment, shall reside with
the originator unless LU and the originator have otherwise agreed
or unless the terms of a grant external to LU and the System
otherwise provide. Independent effort is defined as the product of
inquiry, investigation, creative activity or research where the
specific choice, content, course, and direction of the effort are
determined by the individual without assignment or supervision by
the institution or System. Every faculty member and librarian is
therefore entitled to own and hold the rights to intellectual
property that he or she creates in any book, monograph, academic
paper, article, course materials (within the meaning of the
Memorandum of Agreement), musical composition, work of art,
dissertation, thesis software program, or like material, but this
entitlement is subject to any agreement made with LU or the
requirements of any external grant.
LU owns and holds the rights to intellectual property in
anything created for it and at its direction (including any
specific assignment or when it provides specific resources to
develop the intellectual property) unless, as a matter of law, this
Policy, any agreement or the terms of any external grant, they
reside elsewhere. Assignment, supervision, or resource support that
is customary for research and instructional purposes does not
establish an interest by LU or the System in resultant intellectual
property. Unless otherwise agreed, this Policy also applies to any
intellectual property in which LU has an interest under the terms
of contracts, grants, or otherwise. Any intellectual property in
which LU does not have a legal interest may be offered to LU and,
if accepted, LU will administer such intellectual property in
accordance with this Intellectual Property Policy or as otherwise
agreed.
The President of Lesley University, by virtue of authority
granted by the Board of Trustees, shall, in conformity with this
Policy, manage and oversee all Intellectual Property that is or may
become, in whole or in part, the property of LU, and he may further
allocate or dispose of LU's rights in such Intellectual Property in
such fashion as he judges is in the best interests of LU.
Occasionally, LU may enter into separate contractual agreements
with personnel, such as, but not limited to, consulting,
sabbatical, and in-residence agreements that benefit LU. The
Intellectual Property Policy will not supersede those instances of
separate contractual agreements between personnel and LU.
Regarding educational fair use and copyright issues, LU
personnel must adhere to established LU copyright policy and
applicable provisions of law.
II. RIGHTS AND EQUITIES IN INTELLECTUAL
PROPERTY
II.A. Ownership by Category of Work
II.A.1. Scholarly/Aesthetic Works: In keeping with traditional
academic practice and policy, ownership of copyrights, patents or
trademarks to scholarly or aesthetic works that are prepared
through individual effort and not as part of a directed assignment
shall reside with the originator except as otherwise provided in
this Policy. The general practice of faculty (including librarians)
to produce scholarly works does not constitute a directed
assignment, and nothing in this policy shall be deemed to alter or
abridge the rights to intellectual property conferred on faculty
and librarians by the Memorandum of Agreement.
II.A.2. Works Created by Individual Effort: The copyrights,
patents, or trademarks to any work that is prepared outside the
scope of an employee's employment at LU and without his or her use
of LU's or the System's resources shall be the property of the
employee. However, LU asserts its rights to sponsored
works and contracted works shall be governed by the sponsorship
agreements or applicable contracts.
II.A.3. Commissioned Works: When LU commissions the production
of a work, title to the Intellectual Property in it will normally
reside with LU. In all cases, copyright, patent, or trademark
ownership shall be specified in the written contract or other
writing detailing the terms of the commission.
II.A.4. Works Acquired by Assignment, Gift, or Will: If accepted
by the President acting as designee of the Board of Trustees, LU
may acquire works, including the Intellectual Property rights
therein, by assignment, gift or bequest; and all such works and
rights shall be held, applied and disposed of pursuant to the terms
of the instrument governing the same and otherwise as the President
judges is in the best interest of LU.
II.B. Sponsor-Supported Efforts:
Sponsored projects, including sponsored research, shall be
governed by agreements between LU (or the System) and the persons
(including employees) who are engaged in the project. Those
sponsored-project agreements must contain specific provisions with
respect to the ownership of any Intellectual Property developed
during the course of the project, in which case the terms of the
sponsored project agreement shall establish ownership. When the
sponsored project agreement is silent on the matter, all rights in
any such Intellectual Policy shall vest in LU unless the provisions
of this Policy, exclusive of this provision, otherwise provide
(also see Memorandum of Agreement, April 25, 2003, Article III.B
(12) (a)(b)(c)).
Income, if any, from such Intellectual Property shall be shared,
subject to the sponsor's requirements, in accordance with Section
III.H.
III. ADMINISTRATIVE PROCEDURES
III.A. Responsibility
The administration of the principles and policies set forth in
this document is the responsibility of the Provost and Vice
President for Academic Affairs, whose office shall do so through
the LU Office of Sponsored Projects with the advice of the LU
Intellectual Property Advisory Board (the "IPAB"). The IPAB shall
be appointed by the President and the MSCA, and consist of no fewer
than three and no more than nine members, one of whom shall be
designated by the President to serve as Chair. Additional ad
hoc members may be added by the Chair at any time as
considered necessary.
III.B. Disclosure of Intellectual Property
LU personnel will promptly disclose to the Provost and Vice
President for Academic Affairs, through the Office of Sponsored
Projects, any works, new material, devices, processes, or other
inventions or creations which, by the terms of this Policy
(including any agreements made in accordance with this Policy), LU
owns or in which by such terms it has a right to any Intellectual
Property. A disclosure form will be provided for this purpose by
the Provost and Vice President for Academic Affairs. LU personnel
shall also cooperate by signing all papers deemed necessary to
protect and/or to commercialize any such Intellectual Property.
III.C. Confidentiality
Certain contractual obligations and governmental regulations
(including, in the case of LU employees, the State Ethics Statute)
require that information be maintained in confidence. Additionally,
some works, such as certain computer software, may best be
protected and licensed as trade secrets, and inventions must be
maintained in confidence for limited periods to avoid the loss of
patent rights. Accordingly, the timing of publications and other
disclosures is important, and LU personnel shall use their best
efforts to keep the following items confidential:
(1) All information or material designated confidential in a
contract, grant, or the like;
(2) All information or material designated or required to be
maintained as confidential under any applicable governmental
statutes or regulations; and,
(3) All information relating to Intellectual Property developed
by LU employees in whom LU may have an interest under this Policy
until application has been made for protection or LU has declined
to make such application.
III.D. Collaboration
Collaboration between LU employees and persons not employed or
associated with LU, including researchers at other universities or
companies can result in the development of Intellectual Property
jointly owned by LU, its employees and other persons or their
employers. Protection and Commercialization of such joint
Intellectual Property can be difficult without extensive
cooperation and agreement among the owners. LU employees involved
in or contemplating collaborative activities that may result in the
development of Intellectual Property in which LU may have an
interest will advise LU of such activities.
III.E. Administration of Commissioned and Sponsor-Supported
Efforts
The IPAB has the responsibility to evaluate Intellectual
Property developed from Commissioned- and Sponsor-Supported Efforts
and to recommend to the President or her/his designee whether to
administer such Intellectual Property by undertaking such efforts
as he or she determines, in his or her sole discretion, to be
appropriate to protect and license or otherwise commercialize such
Intellectual Property.
III.F. Disposition of Certain Intellectual Property
Whenever LU chooses not to exercise or exploit its interest in
Intellectual Property or chooses to cease to do so, then LU,
subject to its obligations to any sponsor and to the requirements
of any agreement or other governing instrument, may assign such
interest to the originator to dispose of as the originator sees fit
or may otherwise dispose of it as LU sees it. Decisions of the kind
described here might be made the subject of deliberations by the
IPAB but shall be finally made by the President or her/his
designee.
III.G. Revenue Sharing with Originators of Commissioned and
Sponsor-Supported Efforts
In the cases of Commissioned- and Sponsor-Supported Efforts, the
division of Net Revenue generated from Intellectual Property
administered by LU shall be distributed in accordance with
individual agreements made between LU, the originator and any other
parties as required by the funding source.
The originator's share of Net Revenue shall be divided (equally)
among joint originators of jointly developed Intellectual Property
unless a written statement signed by all joint originators which
provides for a different distribution is filed with LU prior to the
first distribution of shared net revenue.
If the originator is no longer an employee of LU, this share is
returned to Administration for redistribution, unless any
applicable agreement, grant, or other instrument otherwise
provides. In the event the terms under which any Intellectual
Property is licensed, sold, or otherwise exploited provide LU with
equity, or an option to acquire equity, in the entity which
exploits the Intellectual Property, the share of such equity due to
originators as identified above will be distributed to the
originators when such equity is transferable or convertible to cash
and otherwise in accordance with any applicable agreement or other
governing instrument.
III.H. Interpretation, Decision, and Appeal
Cases where the originator and LU agree as to the classification
and proposed mechanism of commercialism of the Intellectual
Property will be processed by LU in accordance with this Policy.
All cases in which questions arise as to equities, rights, division
of royalties, or any other Intellectual Property-related manner
shall be referred to the IPAB for consideration, interpretation of
policy, and decision. Appeal of an IPAB decision shall be sent to
the Provost and Vice President for Academic Affairs, then to the
President, and, finally, to the Board of Trustees. Appeals within
LU must be made in writing within sixty (60) days of written notice
of a final decision. Appeals to the Board of Trustees shall be
filed within twenty (20) days of the final decision of the LU
President.
IV. PREVAILING POLICY: HEIRS AND ASSIGNS
IV.A. Prevailing Policy
In the event of conflicts between the Intellectual Property
Policy of Lesley University and the provisions of any collective
bargaining agreement, the provision of the latter shall
prevail.
IV.B. Heirs and Assigns
The provisions of this Policy shall inure to the benefit of and
be binding upon the successors, heirs and assigns of (1) LU; (2)
all LU employees and students; and (3) all others who agree to be
bound by it.
V. DEFINITIONS
- Intellectual Property shall be deemed to copyrighted
materials, patentable materials, software, trademarks, and trade
secrets, whether or not formal protection is sought.
- Course Materials shall mean lectures, exercises
designed for online collaboration, multimedia developed for web
distribution, notes, outlines, syllabi, bibliographies, tests,
instructional handouts, videotaped presentations and any like
materials and documents (whether in an electronic or other medium)
that a member of the faculty and librarian bargaining unit authors
or creates in connection with the preparation or teaching of a
course (per Memorandum of Agreement, April 25, 2003).
- Copyrighted Materials shall include the following: (1)
literary works; (2) musical works, including any accompanying
words; (3) dramatic works, including any accompanying music; (4)
pantomimes and choreographic works; (5) pictorial, graphic and
sculptural works; (6) motion pictures and other audiovisual works;
(7) sound recordings; (8) architectural works; and (9) computer
software.
The following are not protected by copyright: (1) works that
have not been fixed in a tangible form of expression; written,
recorded, or captured electronically; (2) titles, names, short
phrases, and slogans; familiar symbols or designs; mere variations
of typographic ornamentation, lettering or coloring; mere listings
of ingredients or contents; (3) ideas, procedures, methods,
systems, processes, concepts, principles, discoveries or devices,
as distinguished from a description, explanation, or illustration;
(4) works consisting entirely of information that are natural or
self-evident facts, containing no original authorship, such as the
white pages of telephone books, standard calendars, height and
weight charts and tape measures and rulers; (5) works created by
the U.S. government; (6) works for which copyright has expired; and
(7), works in a public domain. (Source: http://www.copyright.com)
- Mask Work means a series of related images, however
fixed or encoded: having or representing the predetermined, three
dimensional pattern of metallic, insulating, or semiconductor
material present or removed from layers of a semiconductor chip
product; and in which series the relation of the images to one
another is that each image has the pattern of the surface of one
form of the semiconductor chip product.
- Net Revenue means gross receipts received by LU from
license activity minus the costs incurred by LU in protecting,
licensing, marketing and distributing the Intellectual
Property.
- Novel Plant Variety means a novel variety of a
sexually reproduced plant.
- Patentable Materials shall be deemed to refer to items
other than software which reasonably appear to qualify for
protection under the patent laws of the United States or other
protective statutes, including Novel Plant Varieties and Patentable
Plants, whether or not patentable there under.
- Patentable Plant means an asexually reproduced
distinct and new variety of plant.
- Software includes one or more computer programs
existing in any form, or any associated operational procedures,
manuals or other documentation, whether or not protectable or
protected by patent or copyright. The term "computer program" shall
mean a set of instructions, statements, or related data that, in
actual or modified form, is capable of causing a computer or
computer system to perform specified functions.
- Trademarks shall include all trademarks, service
marks, trade name, seals, symbols, designs, slogans, or logotypes
developed by or associated with LU or any of its institutions.
- Trade Secrets means information including, but not
limited to, technical or nontechnical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing,
a process, financial data, financial plans, product plans, or a
list of actual of potential customers or suppliers which: derive
economic value, actual or potential from not being generally known
to, and not being readily ascertainable through proper means by,
other persons who can obtain economic value from its disclosure or
use; and is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.