Intellectual Property Policy

I. Purpose
The purpose of the Intellectual Property Policy (“policy”) of Gardner-Webb University (“the University”) is to foster an environment that encourages the generation of new knowledge by faculty, staff, and students; to help facilitate transfer of useful inventions and writings to society; and to motivate the development and dissemination of intellectual property.

The policy is based upon the following principles relating to faculty, staff and students to the University:

1. Intellectual property is created by individuals, or by groups of individuals, who are entitled to choose the course of disclosure.
2. There exists a historical tradition allowing authors to retain ownership of intellectual property rights from textbooks and works of art.
3. The University is the support of the whole campus community, and is thereby entitled to share in financial rewards.

II. Definitions
As used in this policy, the following definitions will apply:

1. Intellectual Property includes any patentable invention, any copyrightable subject matter, or trade secret. It also includes works of art, and inventions or creations that might normally be developed on a proprietary basis.
2. University means Gardner-Webb University.
3. Student means any full-time or part-time graduate or undergraduate student, regardless of whether the student receives financial aid from the University or from outside sources. It is the responsibility of students who are also employees of other outside entities to resolve any conflicts between this policy and provisions of agreements with their employers prior to beginning any undertaking at the University that will involve the development of intellectual property.
4. Faculty means members of the University’s faculty as defined in the Faculty Handbook, plus instructors, special faculty appointments, and part-time faculty.
5. Staff means any employee of the University other than students and faculty as defined above. If a student is also a part-time University employee, the student is considered as staff with regard to intellectual property developed as a result of his employment, and as a student with regard to other intellectual property. A full-time non-faculty employee who is also taking one or more courses is considered to be staff. Visitors to the University who make substantial use of University resources are considered as staff with respect to any intellectual property arising from such use.
6. Creator means any person or persons who create an item of intellectual property.
7. Net proceeds to the University mean all proceeds received by the University on intellectual property that it assigns, sells or licenses, minus any application, litigation, interference, or marketing costs directly attributable to the intellectual property being licensed.
8. Net proceeds to the creator mean all proceeds received by the creator from intellectual property owned by the creator that the creator sells, assigns or licenses, less the costs of application, legal protection, or litigation, interference, travel and other marketing costs directly attributable to the intellectual property being exploited. Such net proceeds do not include compensation legitimately received by the creator for consulting services or interest or other return on invested labor or capital.
9. Substantial use of University facilities means extensive un-reimbursed use of major University laboratory, studio or computational facilities, or human resources. The use of these facilities must be important to the creation of the intellectual property; merely incidental use of a facility does not constitute substantial use, nor does extensive use of a facility commonly available to all faculty or professional staff (such as libraries and offices), nor does extensive use of a specialized facility for routine tasks. Use will be considered “extensive” and facilities will be considered “major” if similar use of similar facilities would cost the creator more than $1,000.00 if purchased or leased in the public market. Creators wishing to directly reimburse the University for the use of its facilities must make arrangements to do so before the level of facilities usage for a particular intellectual property becomes substantial. (This provision is not intended to override any other department or University policy concerning reimbursement for facilities usage.)
10. Online Courses. An online course refers to an academic course or a portion of an academic course that is delivered through electronic means, typically through a learning management system like Blackboard. In the context of intellectual property, the online course refers to all aspects of the course produced by the creator, as distinct from those portions of the course that are provided by the learning management system or are part of the electronic delivery of the course, which typically are made available to the institution and the creator through licensing. Components of the online course produced by the creator may include, but are not limited to, lectures, videos, graphics, bibliographies (or webliographies), learning outcomes and course outlines.

III. Ownership Provisions and Procedures
In order of precedence, and unless otherwise provided by law, ownership of intellectual property shall be as follows:

• Externally Sponsored Work.
  1. Intellectual property created as a result of work conducted under an agreement between an external sponsor and the University that specifies the ownership of such intellectual property shall be owned as specified in said agreement.
  2. The Provost of the University will inform each person whose intellectual property rights are limited by an externally sponsored contract of the intellectual property provisions of that contract in advance of the beginning of the work.
• Internally Sponsored Work
  1. When the University provides funds or facilities for a particular project to the extent of substantial use, it may also choose to designate itself as sponsor of that work, subject to the provisions of Paragraph 4.F. The University may declare itself the owner of intellectual property resulting from the work. In such cases the University must specify in advance the disposition of any intellectual property rights arising from the project.
  2. The Provost of the University will inform each person whose intellectual property rights are limited by internally sponsored work of the intellectual property ownership rights specified by the University as to that work in advance of the beginning of the work.
• Individual Agreements
  1. Provisions: Intellectual property which is the subject of a specific agreement between the University and the creator(s) thereof shall be owned as provided in said agreement. Such agreements by the University and the faculty are encouraged.
  2. Except where limited by external sponsorship agreements, creators and the University may negotiate individual agreements to govern ownership of intellectual property regardless of the applicability of any other provision of this policy.
• Intellectual Property Created Within Scope of Employment
  1. Intellectual property created by University employees who were employed specifically to produce a particular intellectual property shall be owned by the University if said intellectual property was created within the normal scope of their employment.

IV. Other Ownership Provisions
Where no other provisions of this policy apply, ownership of intellectual property created at the University shall be determined as follows:

• The creator retains all rights to the following types of intellectual property, without limitation: books (including textbooks), educational courseware and software, articles, non-fiction, novels, poems, musical works, dramatic works including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other similar audio-visual works, and sound recordings, regardless of the level of use of University facilities. This provision does not include computer software (other than educational courseware) or databases.
• Computer software, other than educational software, and databases are characterized by their capacity to perform tasks. Because of their utilitarian nature, ownership rights with respect thereto are governed by Paragraphs 4.D and 4.E below.
• The creator owns all intellectual property created without substantial use of University facilities, including intellectual property rights in computer software and databases.
• The creator owns all intellectual property contained within an online course produced by the creator, consistent with paragraph A-C above. The University retains shared ownership of course titles, course descriptions, course outlines, and learning outcomes and may reuse, revise or assign these objects without acquiring the permission of the creator.
• The creator originally owns intellectual property created with substantial use of University facilities or with University funding, but no external or internal sponsorship, and retains said ownership of said property subject to the following:
  1. The University shall receive 25% of the net proceeds to the creator above $1,000.00; and
  2. The University shall receive a perpetual, non-exclusive, non-transferable, royalty free license for non-commercial use of said intellectual property. In the case of software, this license includes access by specified University personnel to the source listings, and the University shall require each person to whom a disclosure is made to execute in advance a binding confidentiality agreement in favor of and enforceable by the creator. If the intellectual property is created solely by a student or students, the creator is exempt from the obligation to pay to the University a fraction of his net proceeds, but not from the provision of this paragraph for a non-exclusive license to the University.
  3. If the creator develops an intellectual property that is covered by this provision, the creator must make full and fair disclosure to the University of all such sources of compensation relating to that intellectual property.
• The University originally owns intellectual property created with substantial use of University facilities and directly arising from work sponsored under an agreement between an external sponsor and the University, or from work for which the University has declared itself a sponsor, but for which neither the external sponsor nor the University have specified the ownership of resulting intellectual property, in which case the creator shall receive 50% of the net proceeds to the University.
• No faculty or staff of the University shall take from a student personal assignment of intellectual property created by a student. The intellectual property rights of students are governed by this policy, and it is the duty of University faculty and staff to see that the intellectual property rights of students are protected in accordance with this policy.

V. General Provisions

1. The creator of any intellectual property that is or might be owned by the University under this policy is required to make reasonably prompt written disclosure of the work to the University’s Provost, and to execute any document deemed necessary to perfect legal rights in the University and enable the University to file patent applications and applications for copyright registration when appropriate. This disclosure to the provost should be made at the time when legal protection for the creation is contemplated, and it must be made before the intellectual property is sold, used for profit, or disclosed to the public. Whenever legal protection for intellectual property is anticipated, all persons engaged in such creative activity are encouraged to keep regular records.
2. The University’s share of any proceeds under this policy will be used to reimburse the University for its expenses for commercial development of intellectual property. Any additional return to the University will be used to further the academic purposes of all the disciplines of the entire University.

VI. Resolution of Disputes

• This policy constitutes an understanding which is binding on the University and on the faculty, staff, and students as a condition for participating in research programs at the University or for the use of University funds or facilities.
• Any question of interpretation or claim arising out of or relating to this policy, or dispute as to ownership rights of intellectual property under this policy, will be settled by the following procedure:
  1. The issue must first be submitted to the Institutional Review Board in the form of a letter setting forth the grievance or issue to be resolved. The Institutional Review Board will review the matter and then advise the parties of its decision within 60 days of submission of the letter.
  2. If any of the parties to the dispute are not satisfied with the committee’s decision, the party may seek binding arbitration in Charlotte, North Carolina, and in accordance with the Rules of the American Arbitration Association then in effect. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) will give some weight to the decision of the Institutional Review Board in reaching a decision. The losing party of the arbitration hearing will pay for all costs of the arbitration unless the arbitrator(s) specifies otherwise.