ARTICLE 30 - Intellectual Property
A. Purpose and Scope
The understandings regarding Intellectual Property that are set forth in this Article are intended to:
1. Commissioned/Institutional Works are defined and directed by the District for a specific District purpose. Faculty members’ contributions to such work are outside their normal duties, and are specified in advance by written agreement (Exhibits N & O).
2. Derivative Work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adopted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”
3. Good Standing, for purposes of this agreement only, means the faculty member’s performance is satisfactory or above in connection with the on-line course(s) he or she is teaching. In the absence of an evaluation, good standing shall be presumed unless the District has documented the deficiency and followed the process set forth in Article 11.C.4 through 11.C.6. Mere unsatisfactory performance in teaching an online course does not constitute an independent basis for discipline but may preclude the faculty member from further assignment to an online course. When the faculty member’s deficiency is solely related to the unique nature of on-line teaching, the District shall not rely on such documentation in connection with future discipline.
4. Intellectual Property means any work that is eligible for copyright protection including (but not limited to) literary works, books, articles, dramatic and musical compositions, poetry, instructional materials (e.g., syllabi, lectures, student exercises, multimedia programs, and tests), analysis (e.g., scientific, logical, opinion or criticism), works of art and design, including pictorial, graphic and sculptural works, photographs, films, video and audio recordings, computer based programs and media (e.g., software or computed code of their representation in forms such as CD-ROM, video disk, compressed video, web-based material and the like), original “maskworks” (i.e., original images derived from semi-conductor chip products), architectural and engineering drawings and choreography.
5. Joint Work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
6. License is contract in which a copyright owner grants to another permission to exercise one or more of the rights under the copyright.
7. Personal Work is intellectual property that is prepared outside the course and scope of District employment without the use of District resources.
8. Royalty is a payment made to an owner of a copyright for the privilege of practicing a right under the copyright.
9 . Scholarly/Aesthetic Work is “Intellectual Property” originated by a faculty member resulting from independent academic effort. Such works include faculty prepared textbooks, lecture notes, syllabi, journal articles, reviews, and other course materials such as outlines, workbooks, presentations, and laboratory manuals, as well as literary, musical and artistic works, and periodicals or other serial publications.
10. Substantial Support means financial support over and above the cost of the faculty member’s normal compensation, office space, office computer, local telephone use, minimal office supplies and copy services. Substantial support includes extra compensation or the assignment of reassigned time to create the work, the cost of providing secretarial, technical, legal or creative services specifically for the creation of work, as well as the cost or value of the use of District equipment or facilities. Neither District-sponsored training nor compensation to a faculty member while on sabbatical, standing alone, constitutes substantial support.
1. Scholarly/Aesthetic Works are the property of the faculty member and the copyright is owned by the faculty member.
2. Commissioned/Institutional Works – unless otherwise stipulated in the agreement, ownership will rest with the District if the elements of this definition are substantially present.
3. Personal Work – ownership of copyrights to personal works shall reside with the faculty member.
4. Faculty Efforts Supported by District – Where the faculty work(s) as defined in Section B involve(s) substantial support of District resources (as defined in Section B.10), the faculty member and the District will negotiate a separate agreement as outlined in Exhibit N. As provided in Section D, AFT will be a party to the negotiations. In addition, one of the following applies:
4.1 The faculty member shall retain the right to copyright the material, but shall reimburse the District for the reasonably assessed cost of the substantial support.
4.2 The District and the faculty member may agree to share the right to copyright materials. This will be accomplished through a separate contract at the time the project is initiated. As provided in Section D, AFT will be a party to the negotiations.
4.3 The District may seek the right to market the work(s) created by the faculty member. The terms of the license to market the work(s) shall be agreed upon by the faculty member and the District. As provided in Section D, AFT will be a party to the negotiations.
4.4 Before a faculty member makes substantial use of District facilities, equipment and resources to create a work, he/she shall seek approval from his/her Department Chair or Dean and the appropriate Vice Chancellor. If the request is approved, the Vice Chancellor and faculty member shall enter into a signed agreement specifying the degree to which District facilities, equipment and resources will be permitted to be used, as well as disposition, including use, of copyrighted works. As provided in Section D, AFT will be a party to the negotiations.
5. Creation of Intellectual Property During Paid Sabbatical
5.1 Creation of intellectual property during a paid sabbatical leave is the property of the faculty member and the copyright to the work(s) is owned by the faculty member, except as stated in Section C.4.
5.2 Where the District has provided to the faculty member substantial support as defined in Section B.10 above in the creation of work(s) included in the faculty member’s approved sabbatical proposal, issues of approval for the use of District resources, ownership, and copyright of the created work(s) shall be governed by Section C.4.
6. Joint Work – Rights between joint owners of a copyright shall be determined pursuant to copyright law.
7. Grant-funded Work – Ownership and use of works stemming from grant-funded projects shall be subject to and determined by the terms of the grant. This provision shall not be deemed to create a beneficial interest for any Grantor.
8. District License for Use of Copyrighted Materials – In cases where the faculty member retains ownership of a work produced during the faculty member’s employment, with the exception of Personal Work as defined in section B.7, the faculty member and the District may agree upon terms for a license permitting the District’s use of such work for internal instructional, educational and administrative purposes. Under normal circumstances, the license shall be non-exclusive and royalty-free. In the event of a dispute under this section, the Union, faculty member and Chancellor shall meet in an effort to collegially resolve the dispute.
D . AFT 's Role in Intellectual Property Rights Negotiations between the District and Individual Faculty Members
In negotiations pursuant to this Article between the District and a faculty member over the terms of a written agreement covering matters within the scope of representation (Government Code Section 3543.2), AFT will be a party to the negotiations. Before initiating any negotiations with any faculty member over a written agreement pursuant to this Article, the District shall notify AFT.
Responsibility for official registration of copyright will lie with the owner of the copyright. Where the District and faculty member(s) share ownership, the District will be responsible for filing for both parties for registration of copyright.
F. Royalties and Distribution Rights
Unless mutual agreement is made to the contrary, the ownership of copyright determines royalty distribution as follows:
1. When faculty has full copyright ownership, they retain full royalty distribution rights.
2. When the District has full copyright ownership, it retains full royalty distribution rights.
3. If the District and the faculty member(s) share copyright ownership, all royalties or profits will be distributed to reimburse copyright owners for documented expenses related to the creation and production of the materials. Any remaining royalties or profits will be distributed equally among the owners or according to a different percentage under the terms of a separate agreement.
1. Distance Education is defined as instruction, education or training where the instructor and the student are separated geographically. Communication between the student and instructor is made through one or more technological devices such as live or recorded visual presentations and materials using direct signal or cable, transmission by telephone line, fiber-optic line, video tape, CD-ROM, computer or internet technology, or email. “Course” as used in this Article refers to any class offered by the District.
2. Compensation, including extra pay or release time for work performed by faculty members who develop Distance Education courses, shall be negotiated by the Union and the District. In each case in which the faculty member develops a Distance Education course, an agreement regarding this compensation and the work to be performed will be executed by the faculty member, the District and AFT (see Exhibit O).
3. The faculty member retains ownership of and the right to copyright course materials of Distance Education courses, except for ownership of the courseware shell.
4. Right of First Refusal and License
4.1 The faculty member who creates a distance education course, whether a new distance education course or an existing course converted to a distance education course, shall maintain the right of first refusal to teach the course for four (4) semesters, provided that (a) there is adequate enrollment to offer the course, and (b) the faculty member remains in good standing, as defined above. Faculty members meeting these conditions are referred to as “such originating faculty members.”
4.1.1 If such originating faculty members decide not to continue to teach the course, the terms of G.4.2 apply.
4.1.2 If the District wishes to reassign the course and provide the course materials of such originating faculty members to another faculty member over the originating faculty members’ objection, the District shall consult with the originating faculty members and Union before determining a final course of action, with review by the Chancellor in the event of continued disagreement. The District, Union and originating faculty members shall agree, prior to reassignment of the course, to the amount to be paid the originating faculty member for a license fee and shall also agree to the duration of the license.
4.1.3 If the faculty member does not remain in good standing with adequate enrollment for the entire four semesters, the terms of G.4.2 apply.
4.2 After the initial period defined in G.4.1, the District shall retain a non-exclusive, non-transferable license to use such course for internal instructional, educational and administrative purposes without compensation for a period of four (4) semesters additional to any semesters in which the course was already taught by the originating faculty member. This license shall not include the right to create derivative works absent the written consent of the originating faculty member.
5. If the district seeks to assign one or more other faculty member(s) one or more additional section(s) of an online course using the materials from an online course currently taught by a unit member:
5.1 the decision shall be subject to agreement with the Union and originating faculty member;
5.2 the load factor for the additional section(s) shall be the same as provided for the original section; and
5.3 the parties will reach a written agreement over an appropriate license fee and duration of use.
6. Distance education course curriculum shall be developed pursuant to established curriculum policies and procedures.
7. Teaching of distance education courses shall be on a voluntary basis.
8. The decision of whether and when to offer distance education courses shall remain the exclusive prerogative of the District, except as limited by the specific terms of this Section G. Assignment and scheduling of faculty who volunteer for such courses shall be in accordance with Article 13 of this Agreement and this Section G.
9. If the creating faculty member is not going to continue teaching a distance education course, the assignment decision in respect to volunteers shall be made in accordance with Article 13.
10. Faculty selected to teach a distance education course must participate in District-sponsored training as required and agree to follow the guidelines and requirements of the Office of Technology-Mediated Instruction.
11. Existing class size limits for conventional courses shall apply to their on-line versions. Telecourse limits are as set forth in Article 18.A.3.
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