Policy
The College owns the rights to all works, inventions, developments, and discoveries (herein referred to as “work” or “works”) created by employees within the scope of their employment (including students working in the College Labor Program or whose creation involves the substantial use of College equipment, services, or resources. This includes any patentable invention, computer-related software, databases, Web-based learning, and related materials, but will not be applied to such traditional scholarly works as books, articles, manuscripts, plays, writings, musical scores, and works of art (from here on, “scholarly works”). The “work-for-hire” rule in the Copyright Act gives the College ownership of the copyright to copyrightable works produced by any employee within the scope of his or her employment. (See “I.” below for “ownership of intellectual property” and “II.” for “scope of employment.”) However, in the case of scholarly works, the College cedes copyright ownership to the author/creator(s). It is not the intent of this Policy to change the relationship between author/ creator and the College that has existed through the years in relation to copyright ownership of scholarly works.
The use of College equipment, services or resources is “substantial” when it entails a kind or level of use not ordinarily available to all, or virtually all, faculty, staff, and/or students. (See “III.” below for “substantial use.”) Where question arises as to whether a particular work involves “substantial use” or falls within the “scope of employment,” the matter shall be referred to an ad-hoc committee comprised of two members of the Executive Council selected by the author/creator, the Academic Vice President and Dean of the Faculty or designee, and the Vice President of Operations and Sustainability or designee.
When employee-created intellectual property results from third-party grants, contracts, or awards made to the College, the intellectual property is owned by the College unless written agreement involving the College, the employee, and the sponsor establishes an alternative ownership arrangement. No such agreement shall be entered into without the review and approval of the Dean.
A compilation is a work formed by the collection and assembly of College-owned and individual-owned intellectual property in such a way that the resulting works as a whole constitutes an original work. If a work is a compilation, each contributor shall retain all ownership interests in his/her intellectual property; but by allowing the work to become part of the compilation, he/she thereby grants a non-exclusive, royalty-free license to the College for use of his/her contribution. While the College shall own rights to the compilation, it shall own no rights to the underlying work beyond said license and will share any net proceeds from the compilation as described below.
If an employee creates intellectual property, other than a scholarly work, which may lead to commercial development, then he/she is expected to notify immediately his/her Department Chair or Program Director and the Dean in order to provide them with sufficient information to permit the College to evaluate the work, both its ownership and its commercial potential, and, if appropriate, to take steps to protect the College’s intellectual property rights. If ownership rests with the College, but the College elects not to exercise its ownership rights, then ownership rights and responsibilities related to patenting, copyrighting, and licensing shall revert to the author(s). In such a case, the College retains a nonexclusive, royaltyfree right to use the work for non-commercial purposes.
In the case of employee-owned intellectual property, the author/creator may petition the College to accept assignment of ownership rights and the attendant control of and responsibility for development. The College, however, is under no obligation to accept this assignment and would do so only when independent evaluation indicates that accepting the assignment would further the mission and work of the College.
Revenue Sharing
The College wishes to encourage excellence and innovation in teaching, scholarship, and creative activities and to support the notion that works produced at Berea College should be used for the greatest possible public benefit. In the context of these aims, the College endorses the legitimate expectation of employee author/creators to share in any net revenues produced by licensing or other development of intellectual property. Accordingly, for any work in which the College asserts ownership interest under this Policy, the College and the author/creator(s) will share any annual net revenue (revenues less recovery of all legal and other costs involved in protecting the intellectual property rights of the work, licensing costs, and other directly related administrative costs) in the following percentages, unless different contractual agreements have been reached in relation to particular works:
| net revenue | author / creator(s) | berea college |
| $5,000 | 100% | 0% |
| $5,000-$25,000 | 75% | 25% |
| $25,000-$100,000 | 60% | 40% |
| $100,000 | 50% | 50% |
If a work involves more than one employee as author/creator, the author/creators will divide their share equally unless they provide the College with an alternative revenue distribution agreed upon by them. Use of net revenues received by the College under this Policy shall be restricted to the support of scholarly, research, or creative activity on the part of faculty, staff, and/or students.
Recognizing that this area is complex and rapidly evolving, Berea College remains open to the possibility of arriving at special agreements as the need may arise in relation to particular projects. This policy shall be reviewed within three years by the Faculty Status Council and revised as necessary.
I. Who owns intellectual property?
When does the College own employee- or student-created intellectual property?
Any one of these circumstances will result in College ownership:
- If intellectual property is created (including student employees working within the scope of the Student Labor Program); or
- If intellectual property is created on College time with substantial use of College equipment, services, or resources; or
- If intellectual property is commissioned by the College pursuant to a signed contract; or
- If it fits within one of specific categories of works considered works for hire under copyright law.
- If intellectual property results from research supported by Federal funds or third-party sponsorship and no written agreement involving the College, the researcher, and the sponsor have established an alternative ownership arrangement.
When does an individual own intellectual property?
- If it is unrelated to the employee's or student's job responsibilities and has not made substantial use of College equipment, services, or resources; or
- If it is a work that has been released to the author/creator in accordance with this Policy; or
- If the intellectual property is embodied in such traditional scholarly works as books, articles, manuscripts, plays, writings, musical scores, and works of art even though such a work may be within the scope of employment and even if significant College resources were used UNLESS the work is:
created by someone who was specifically hired or required to create it or
commissioned by the College
In either of these cases, the College, not the creator, will own the intellectual property.
II. What is meant by “within the scope of employment”?
Works related to an individual’s job responsibilities, even if he or she is not specifically requested to create them, will belong to the College as works-for-hire. A copyright work is related to his or her job responsibilities if it is the kind of work he or she is employed to do and he or she does it, at least in part, for his or her use at work, or for use by fellow employees, his/her employer, or his/her employer’s clients. The work should be performed substantially at work using work facilities, but the employee’s use of personal time or other facilities to create the work will not change its basic nature if it is related to the person’s job as described above. Works that have nothing to do with job duties will remain the property of the employee so long as he or she makes no more than incidental use of College facilities.
For example, if your job is “Safety Engineer,” a software program that you create on your own initiative to run on each employee’s computer to show a graphic of their nearest fire exits is related to your job duties and will belong to the College, even if no one asked you to create it and you did some of the programming at home on your own computer. A program that you create that does not relate to your job, that neither you nor others use at work, and that you create on your own time would belong to you.
III. What is meant by “substantial use”?
The Intellectual Property Rights Policy uses the phrase “substantial use of College equipment, services, or resources” in determining when the College claims ownership of intellectual property, not including work identified in the Policy as traditional “scholarly works.” The purpose of this appendix is to amplify the intended meaning of “substantial use.”
For purpose of this Policy, “substantial use” is the use of resources other than those “ordinarily available” to most or all faculty, staff, and/or students. At this date, such ordinarily available resources include office space and personal office equipment, office computers, library and other general use information resources, means of network access to such resources, and support provided through the Student Labor Program or other campus program such as the Undergraduate Research and Creative Projects Program (URCPP). By contrast, use of College laboratories or special instrumentation, dedicated assistance by College employees, special financial assistance, or extensive use of shared facilities would constitute substantial use.
The understanding of “substantial use” may be revised from time to time by the Academic Vice President and Dean of the Faculty to reflect changes in technological paradigms.