Faculty Rights in Intellectual Property

Board Policy 3.26 continues the "prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes."

The policy recognizes that faculty members own intellectual property rights in certain scholarly works, encoded works, and personal works, and identifies several instances where a faculty member's basic ownership rights may be modified by an agreement or other factors.

You may use the menu below to learn more about the different modifications of rights that can occur.

"Encoded works are owned by the faculty who created the work, except as otherwise provided in the policy."

Encoded works are "creations that are software and other technologies for the electronic capture, storage, retrieval, transformation, display, or transmission of information." (Board Policy 3.26, Part 4, Subpart A.3) Examples of encoded works include:

  • computer programs
  • multi-media CD-ROM presentations
  • web pages

"Intellectual property rights in encoded works belong to the faculty member who created the work, unless an agreement, sponsorship agreement, or other condition provides otherwise." (Board Policy 3.26, Part 4, Subpart A.3)

"Personal works are owned by the creator of the work."

Personal works are works "created by an employee… outside his or her scope of employment and without the use of college or university resources other than resources that are available to the public or resources for which the creator has paid the requisite fee to utilize. Intellectual property rights in personal works belong to the creator of the work." (Board Policy 3.26, Part 4, Subpart A.4)

The key here is that the works must unquestionably be created outside the scope of employment.

For example, the American History professor who writes a work of historical fiction over the summer; the fine arts instructor who paints watercolors as gifts for family and friends during non-working hours; and the music teacher who composes a piece for use by her church choir have all created personal works. All of the created works take advantage of the talents of the creators, and possibly even the creators' experience as faculty members to some degree, but they are still personal works created outside the scope of employment.

"Faculty ownership rights in intellectual property may be modified by agreement or other factors."

Board Policy 3.26 also contains several provisions that may modify ownership rights of faculty in intellectual property. (Board Policy 3.26, Part 4, Subpart B) For the most part, the modification of ownership rights occurs when the parties involved enter into an agreement before the intellectual property is even developed. These agreements are helpful because they define roles and responsibilities (such as who will provide funding, who will perform the work, whose facilities will be used, deadlines for the completion of work, etc.) as well as details relating to who ultimately will own and control the work. The parties may agree to share ownership, or one party may agree to own the work but grant the others the right to freely use the work in certain described circumstances. The variations on these agreements are endless. They provide a mechanism to consider and meet everyone's needs and to define ownership interests from the start, thus avoiding later disputes.

Sponsorship Agreements

A sponsorship agreement is a written agreement between a sponsor (person, organization, or governmental entity other than the Minnesota State Colleges and Universities) and a college, university, and and/or the Office of the Chancellor and may include other parties, including the creator of the work. (Board Policy 3.26, Part 3, Subpart P) A sponsor is a person, organization, or governmental entity, other than the Minnesota State Colleges and Universities, that provides funding, equipment, or other support in order that a specified project may be carried out. (Board Policy 3.26, Part 3, Subpart O) Sponsorship agreements routinely take the form of college or university contracts with corporations to conduct research on behalf of the corporation at the college's or university's research facilities.

Ownership of intellectual property rights in a work created under a sponsorship agreement is determined by the terms of the agreement. If the sponsorship agreement does not address the issue of ownership of intellectual property rights, ownership is determined by applicable law. (Board Policy 3.26, Part 4, Subpart B.1)

Collaborations/Partnerships

The Minnesota State Colleges and Universities and its colleges and universities may participate in projects with persons/organizations to meet identified student, citizen, community and industry needs. For example, colleges and universities may partner with other institutions to offer joint degree programs or they may partner with community businesses to provide internship and employment opportunities for students. Ownership rights pursuant to any collaboration or partnership shall be addressed pursuant to this policy. (Board Policy 3.26, Part 4, Subpart B.2) As with sponsorship agreements, the use of a formal collaboration/partnership agreement delineating each party's rights and responsibilities is strongly encouraged.

Equity Distributions

In any instance in which the Minnesota State Colleges and Universities and/or its colleges or universities execute an agreement with an individual, corporation or other entity for economic gain using intellectual property owned by the college or university, the college or university is entitled to receive an equity distribution. The proceeds of the equity distribution shall be shared among the creators of the work as determined by this policy. (Board Policy 3.26, Part 4, Subpart B.3)

For example, if an agricultural college develops and patents a new and improved method of poultry processing, the college may agree to license the use of that processing method to one commercial food processing company (an "exclusive" license) or to any number of such companies. In exchange for allowing companies to use the processing method, the companies would pay the college licensing fees or royalties. The college may impose other restrictions as well, such as limiting the length of time companies may use the process. The main thing is that the parties (the college and any interested company) negotiate terms up front and formalize their agreement in a written contract.

Special Commissions

Intellectual property rights to a work specially ordered or commissioned by the college or university from a faculty member, professional staff, or other employee (including a student employee) and identified by the college or university as a specially commissioned work or "work for hire" at the time the work was commissioned, shall belong to the college or university. The college or university and the employee shall enter into a written agreement for creation of the specially commissioned work. (Board Policy 3.26, Part 4, Subpart B.4) The use of a written agreement sets these work arrangements apart from work otherwise performed by faculty members in the regular course and scope of their employment (such as drafting lesson plans, presenting lectures, meeting with students during office hours, attending faculty meetings, etc.).

Use of Substantial College or University Resources

In the event a college or university provides substantial resources to a faculty member or professional staff member for creation of a work and the work was not an institutional work created under a sponsorship agreement, individual agreement, or special commission agreement, the college or university and the creator shall own the intellectual property rights jointly in proportion to the respective contributions made. Substantial circumstances exist when resources provided are beyond the normal support services extended to individuals for development of work products. (Board Policy 3.26, Part 4, Subpart B.5)

The following questions may help you make a determination about when and whether your use of college or university resources will be considered "substantial" (or when it will at least raise a question as to whether the college or university is entitled to joint ownership in the created work):

  1. Will I use college or university resources beyond normal services available to other faculty members? Will I pay for the use of these resources?
  2. Will I receive some additional compensation from the college or university in the form of a monetary payment, grant, release time, or some other benefit for my development/creation of the intellectual property?
  3. Will the college or university provide support such as money, staff, facilities, computer resources, etc., that is beyond normal services available to other faculty members and critical to the development/creation of the intellectual property?

If the answer to any of the above is "yes", a potential "substantial use" situation could arise. You should take steps to clarify ownership issues with the college or university before work begins so there is no confusion in the future about your ownership and use of the intellectual property created.

Other Modifications

Collective Bargaining Agreement

In the event the provisions of this policy and the provisions of any effective collective bargaining agreement conflict, the collective bargaining agreement shall take precedence. (Board Policy 3.26, Part 4, Subpart C.1)

Jointly Created Work

Ownership of jointly created works shall be determined by separately assessing which of the above categories applies to each creator, respectively, and then determining whether the parties had entered into an agreement regarding ownership, rights and use. Whenever two or more creators work together, questions regarding joint ownership arise. For example, if a student assisted a faculty member with a project, was the student compensated for his or her efforts (a "work for hire" arrangement) or was it more of a collaborative effort (which would arguably make the student a joint author)? If a team of faculty members works together to create an online "toolbox" for incoming college freshmen to be posted on the college website, may individual members of the team use the portions they created in other projects or venues? May the college market and license the use of the toolbox to other colleges? Whenever possible, creators working jointly should discuss and decide these issues up front and formalize them in a written agreement.

Sabbatical Works

Intellectual property created during a sabbatical is defined as scholarly work. Typical sabbatical plans do not require use of substantial college/university resources. If the work created as part of an approved sabbatical plan requires resources beyond those normal for a sabbatical, the parties may enter into an applicable arrangement in accordance with this policy. (Board Policy 3.26, Part 4, Subpart C.3)

System College or University Name

Intellectual property rights arising from use of the Minnesota State Colleges and Universities' identity, the identities of its colleges and universities, logo, and other indices of identity belong to the respective entity. Such rights may be licensed pursuant to reasonable terms and conditions approved by the Chancellor, presidents or their designees, respectively. (Board Policy 3.26, Part 4 Subpart C.4)