Policy Number: 4-15
Policy Name: Instructional Television/Media Material Contracts
Date: June 5, 1989
PRINCIPLES AND OBJECTIVES
The educational and research activities of the University of Delaware can be enhanced by employing modern audiovisual technology. The goal will be to produce audiovisual works of the highest quality through the joint effort of University of Delaware faculty, professional staff, and technical specialists.
The objectives of this policy are as follows:
to extend University educational and research opportunities outside and within the traditional campus setting through audiovisual means;
to serve the best interests of the University, instructors, and the public by producing, using, and distributing only audiovisual works of the highest possible quality;
to foster a high level of cooperation between participating instructors and the audiovisual works production staff;
to encourage participation by instructors with professional qualifications most appropriate for each specific audiovisual work;
to preserve traditional University practices and privileges with respect to the generation and publication of scholarly works and the right of instructors to determine course content;
to foster the free and creative expression and exchange of ideas and comments;
to establish principles and procedures for equitably sharing income derived from audiovisual works produced at the University; and
to protect the University's assets and imprimatur.
It is the policy of the University to provide the necessary facilities and technical staff to create audiovisual works in cooperation with participating instructors and to release and distribute such works in accordance with the foregoing objectives and the following provisions.
RELATION TO OTHER UNIVERSITY POLICIES
This policy shall be consistent with the fundamental educational and research missions of the University and with all policies related to those missions, including the policies governing academic professionalism, academic freedom, copyrights, software, patents, and consulting.
The following definitions apply to terms used in these procedures:
"Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. This definition shall not be construed as including software or audiovisual works that are substantially based upon software.
A "device," "machine," or "process" is one now known or later developed.
The administration of the policy set forth in this document is the responsibility of the Provost of the University. The Provost, however, may delegate day-to-day administration to an appropriate University official with the understanding that no departures from the stated principles of this policy will be made.
The Provost or her/his designee is responsible for application of the principles of this policy to all activities involving the making of audiovisual works, for making independent assessment of commercial potential of audiovisual works projects where appropriate, and for promptly reporting perceived potential to the Associate Provost for Research & Patents.
The Provost or her/his designee of the structure established by the University to produce, distribute, and market audiovisual works shall be advised by the University Faculty Senate Committee on Instructional, Computing and Research Support Services (or its successor). The committee shall advise the Provost or her/his designee on a regular basis on the merit of proposed audiovisual works projects.
All participation by faculty in the creation of audiovisual works shall be fully voluntary, and participation by full-time faculty shall not be a condition of employment.
USE OF AUDIOVISUAL WORKS IN FACULTY EVALUATION
On request, a copy of an audiovisual work shall be loaned by the University to each faculty member who has been a primary participant in the making of that work for her/his use in faculty evaluation (e.g., promotion, tenure, and merit increase). Faculty members wishing to purchase a copy of the work shall reimburse the University for the direct costs of duplication of the work or parts thereof.
In no circumstance may an audiovisual work be used in faculty evaluation without the written permission of the faculty member who has participated in the making of that work.
OWNERSHIP OF INTELLECTUAL PROPERTY
All intellectual property rights in audiovisual works produced in accordance with this policy by University staff and with University facilities, including rights to copy, use, and distribute, shall reside in the University. (See XIX Independently Produced Works.) Administration of the University's intellectual property rights shall be governed by the following:
In all circumstances, the instructor participating in the making of an audiovisual work will determine the content of the production, and with respect to content shall have the right of approval prior to initial use or distribution and thereafter at the time of periodic reviews of the material. (See Section XVIII.)
With respect to production standards and quality, these approvals shall be by mutual consent of the instructor and the appropriate University administrative officer. When mutual consent is not reached a three-member panel of peers shall arbitrate the disputed issues. (See Section XXII.)
The University shall seek approval before use or release of a credit course from the head administrator(s) or chair(s) of the relevant academic unit(s) or department(s) (1) for the employment of any outside instructional personnel for the making of audiovisual works and (2) for the works made using outside instructional personnel.
Use of an audiovisual work for a substantial part of the content of a course giving academic credit at the University and taught by an instructor other than the primary participant in the making of the work shall require approval by both the creator of that work and by the administrator or chair of her/his unit or department (see also Section XIIA3 concerning compensation). No such approvals shall be required in instances of "fair use" of an audiovisual work, i.e., the use of the work for an insubstantial part of the course content.
If the University employment of the participating instructor terminates, the University retains the right to distribute and use the audiovisual work for whatever part there may remain of a period of three years from the latest of the dates on which the work was released, reviewed, or revised. However, prior to the end of the three-year period, one of the following actions shall be initiated by the University:
Acting jointly, the University and the former instructor or a person rightfully representing her/him or her/his estate shall undertake periodic reviews of the audiovisual work to determine if it should continue in release (as per procedures in Section XVIII).
The University shall negotiate a contract with the participating (now former) instructor or with her/his estate stipulating the conditions for subsequent use of the audiovisual work and the procedures for its review or revision.
ASSIGNMENT AND WARRANTY
The participating instructor agrees to execute all documents, including assignment of the works to the University or its designees, required for legal disposition of rights relative to such materials.
The participating instructor shall warrant that the material she or he supplies in course content does not to the best of her/his knowledge in any way infringe the property rights of others.
Each audiovisual works project shall be governed by a written agreement (contract) signed by the participating instructor or off-campus personnel and the University. The terms of such an agreement shall be consistent with sections of this policy that are applicable to either University instructors or to off-campus personnel.
All costs of studio operation related to an audiovisual work shall be recovered by the University from the project income before income distribution provided for in Section XII, Compensation for Audiovisual Works Services. A schedule of costs based on the hourly use of University facilities and personnel shall be published and updated by a designated University administrator and the University Treasurer.
COMPENSATION FOR AUDIOVISUAL WORKS SERVICES
Compensation shall be paid as provided in Sections XII and XIII to an instructor participating in the production of an audiovisual work in all instances in which the work results in income accruing to the University from the audiovisual work. "Income" for this purpose does not include that tuition paid to the University by students enrolled in a regularly scheduled credit course which is the subject of the audiovisual work in which the instructor is participating as part of her/his workload.
Compensation paid in accordance with Sections XII and XIII shall be in either one or both of the following forms: 1) The form and amount of the compensation shall be according to the current published schedule upon completion of the work or, where applicable, at the time the University has received the corresponding tuition income; 2) Payment in increments based on income other than tuition received by the University from distribution of the work by live broadcast, delayed broadcast, rebroadcast, sale, lease, or use of the work in an instruction program managed by a public or private party other than the University.
For purposes of this Section XII, an audiovisual work shall be deemed "complete" when the participating instructor and the production head agree it is ready for release, except that live broadcast works shall be deemed complete at the conclusion of the last broadcast session. "Release" means any method of distribution including but not limited to rebroadcast, sale, lease, or use of the work in an instruction program managed by a public or private party other than the University.
Full Course Audiovisual Works Project: Compensation Paid in the Manner Customary for Overload Payments
Regularly Scheduled Course Taught Also as Audiovisual Course
When an instructor teaches a full course that is regularly scheduled as part of her/his workload, the course forms the primary basis of an audiovisual works project, and the University realizes tuition income from the broadcast or external use of the work, the instructor shall be compensated in recognition of the additional work and special considerations required to make the course into an audiovisual course. The form and amount of the compensation shall be according to the current published schedule.
Course Not Regularly Scheduled Taught Specifically for Audiovisual Works Project
When an instructor teaches a full course that is beyond her/his regular teaching load, the instructor shall be compensated. The form and amount of the compensation shall be according to the current published schedule.
Use of Audiovisual Work as Substantial Part of an Academic Credit Course at the University When Taught by an Instructor other than Original Instructor of Audiovisual Work
The use of an audiovisual work for the substantial content of a course that (a) results in income for the University through the payment of tuition or other fees and (b) is taught by an instructor other than the instructor who was the primary participant in producing the work shall require compensation to the instructor who participated in the making of the work.
The form and amount of the compensation shall be according to the current published schedule. In no case shall the compensation be greater than the income realized by the University.
Short Course Audiovisual Works Projects and Special Projects: Compensation Upon Date of Completion of the Project
When an instructor is a primary participant in a short course, the instructor shall be compensated. The form and amount of the compensation shall be according to the current published schedule.
DISTRIBUTION OF INCOME: COMPENSATION AFTER RELEASE OR USE OF AN AUDIOVISUAL WORK OF A NOT-FOR-CREDIT COURSE
Income received from use or distribution of audiovisual works of not-for-credit courses shall be distributed through one of two optional methods, one to be selected by the instructor involved:
Option 1: Income in excess of costs shall be distributed one-third to the instructor, one-third to the production facility, and one-third to the instructor's academic unit. If Option one is selected, one or more of the published schedules discussed in Section XIIA and B constitute(s) the basis of compensation of the instructor in addition to the distribution defined in this option.
Option 2: All compensation of the instructor shall be derived under this option; the instructor shall receive no compensation under the terms of Sections XIIA or B. Gross income received from use or distribution of audiovisual works until the production facility has recovered all costs shall be distributed in the following manner: one-sixth to the instructor and five-sixths to the University. The five-sixths shall be shared with the instructor's academic unit. Upon recovery of costs the instructor's academic unit's share shall not be less than one-third of the gross income.
Distribution of income is to continue under the terms of this section in the event the instructor retires or leaves the employment of the University. Should the instructor die, the income due her/him shall be distributed to her/his heirs.
Normal rate stipends shall be paid to students for time spent developing or producing audiovisual works under instructor or University direction. Such payments shall be recoverable as costs.
Persons not University employees may be engaged to develop course materials, to provide instruction, or to provide other services related to the production of audiovisual materials.
Employment of Off-Campus Personnel as Instructors in Audiovisual Works
The employment of off-campus personnel under contract as instructors in the production of audiovisual works of credit courses shall be subject to the approval of the unit administrator or department chair concerned with the subject matter of the production. Procedures similar to those used to employ off-campus personnel for continuing education shall apply.
Compensation of Off-Campus Instructional Personnel
Compensation of off-campus instructional personnel shall be under contract negotiated on merit. Royalty payments may be made under such contracts but shall not exceed comparable payments to University instructors participating in the making of audiovisual works.
Compensation of Non-Instructional Off-Campus Personnel
Compensation of non-instructional personnel shall be set by negotiation but shall in no case include payments based on project income (i.e., royalties).
PAYMENTS TO PROFESSIONAL STAFF AND OTHERS
No audiovisual production staff person, professional or non-professional, shall be eligible to receive distributions of income. Their efforts shall be considered "work made for hire."
At the time of contract preparation (see Section X, Contract Procedures) the participating instructor may request an instructional assistant (e.g., teaching assistant) at the remote site of a broadcast credit course and/or within the University campus. If the request is approved by the unit head, the expense of the instructional assistant(s) shall be paid by the production unit. The form and amount of compensation shall be according to the current published schedule.
POST-RELEASE REVIEW OF AUDIOVISUAL WORKS
Frequency of Periodic Reviews
Following the release of an audiovisual work, it shall be reviewed at least once every three years. Reviews may take place annually at the request of either the University or the participating instructor.
Participants in Reviews
Participants in reviews shall include the University's designated representative and the instructor who was the primary participant in the making of the work or the designated representative of her/his estate. (See Section VIIIA.)
Decisions regarding continued use or revision of a work shall be made by the same procedure as in Section VIII, Ownership of Intellectual Property.
INDEPENDENTLY PRODUCED WORKS
Nothing in this policy shall be construed as limiting instructor or professional staff use of personal recording equipment (e.g., cameras, camcorders, tape decks) for non-profit applications as teaching aids, research tools, or educational purposes, or for personal use for hobbies, entertainment, documentation, or similar applications not related to University academic activities.
If use of personal equipment results in production of audiovisual works that are related to University academic activities and have (or may later be found to have) possible commercial potential, such use shall be brought to the attention of the Associate Provost for Research as soon as the possible commercial potential is perceived. The Associate Provost for Research will review the circumstances surrounding the creation of the work and, after consultation with the originator of the work, the appropriate dean, and the appropriate chair, will determine the University's interest in the work.
If it is found that the University has a substantial interest in the work, the terms of this policy will apply to it. To safeguard the interests of the originator and the University, a copyright notice should be placed on the work before it is displayed or distributed to others.
Use of such personal equipment for production of audiovisual works having commercial potential shall require approval of the designated administrator. Such approval shall not be unreasonably withheld and shall be based on the relationship of the proposed work to the normal University activities and duties of the faculty or professional staff person seeking approval and on University's interest in the audiovisual work as measured by the extent of the University's prior material or staff support of the creation of the work. If the designated administrator determines that the University's interest in the work is substantial, the work shall be covered under sections VIII and XII of this policy.
CONTRACT PRODUCTION OF AUDIOVISUAL WORKS
Audiovisual Works Financed Wholly or in Part by Government Funds
The University is obligated to report to the appropriate government agency all audiovisual works derived from work which has had any financial support from the government of the United States, for determination of the government's rights and interests. This determination may result in
the government deciding that the public interest requires that the works be disclosed in the open literature; or
the government acquiring and reserving to itself principal or exclusive rights, in which case exploitation of the audiovisual work rests with the government; or
the government releasing the audiovisual work to the University.
Irrespective of which of these alternatives is elected by the government, the government usually retains rights to a royalty free, nonexclusive, irrevocable license throughout the world under any copyright or patent which may be issued on the work, or to free use of the work for government purposes; and rights to the work granted by the University are subject to prior retained government rights.
Audiovisual Works Financed by Contracts with other Organizations or Individuals
Rights with respect to audiovisual works in this category are governed by the terms of the individual agreements. Section XXB shall be consistent with the basic underlying principles of this document.
Any use of professional actors, musicians, or other performing artists in an audiovisual work must comply with the standard contractual procedures of the labor unions or professional associations to which the artists belong. Any use of copyrighted music or recordings in an audiovisual work must comply with the copyright law and the standard procedures of the national licensing agencies.
Applications of audiovisual materials are steadily evolving and increasing. It is probable that not all situations which may arise are adequately covered in this policy. In such cases, the designated administrator, in consultation with the participating instructor, the appropriate dean/director, and the designated Senate Committee, shall establish any required new or modified procedures. Such procedures shall become effective and shall be incorporated in this document upon approval by the Provost.
Some cases not clearly covered by this policy may require ad hoc treatment. (In these situations adding the procedures to this document may not be necessary.)
ARBITRATION OF DISPUTES
If the University and the participating instructor cannot agree with respect to any of their respective rights or obligations hereunder, such dispute shall be submitted for determination to an arbitration panel of three members chosen from the University community and consisting of a member named by the participating instructor, a member named for the University by the Provost, and a member selected by mutual agreement of these two nominees, who will serve as chair. The decision of a majority of this panel shall be final and binding upon both the participating instructor and the University.
The Board of Trustees of the University of Delaware approved this policy May 1988.