UC’s new copyright ownership policy: What does it mean for campus?

The University of California has released an updated copyright ownership policy (and accompanying FAQ). This is the policy across all of the UC campuses that governs who (as between the University or the author) owns copyright in scholarly and aesthetic works created by faculty, staff, and students. The copyright ownership policy was last revised in 1992. The Library submitted comments on the draft policy in December 2019, and many of our proposed suggestions and clarifications have been included. 

But what does the updated copyright policy mean for different groups and individuals around campus? This post will break down some of the changes in the new policy. 

What types of works are eligible for copyright ownership? 

Quick Answer: Any copyrightable works created by Academic Authors within the scope of their employment as part of their teaching, research, or scholarship are eligible for copyright ownership. This includes (but is not limited to) journal articles, textbooks, course materials, and more. And now, Academic Authors are eligible to own copyright in software they create. 

Read More: The revised copyright ownership policy includes a new definition: Scholarly & Aesthetic Works. These are “copyrightable works authored by Academic Authors within the scope of their employment as part of or in connection with their teaching, research, or scholarship.” Academic Authors hold copyright in these works when they are created without direct assignment or supervision by the University. The policy provides a non-exhaustive list of works that will be considered Scholarly & Aesthetic Works, such as journal articles, books, case examples, course materials, and visual works of art. Importantly, the updated policy includes software as a category in which Academic Authors may hold copyright (although the UC continues to own the patent rights created in software). 

When do authors own their copyrights? 

Quick Answer:  Now, any employee who has a “general obligation to create copyrightable scholarly or aesthetic works” gets to keep their copyright in those works. Note that students always hold copyright in anything they create while at the UC, unless certain conditions apply (e.g. the student created a copyrightable work in the scope of their employment, it was part of a sponsored grant project, etc.).

Read More: Under U.S. copyright law, the copyright in a work prepared by an employee in the course of  their employment typically resides with the employer. The revised copyright ownership policy continues the practice whereby the University transfers any copyrights it may own in Scholarly & Aesthetic Works to the Academic Authors who prepared those works.

The updated copyright ownership policy expands the definition of “Academic Authors” eligible to own copyrights. Now, Academic Authors means “employees who have a general obligation to create copyrightable scholarly or aesthetic works.” Sometimes it’s relatively clear which employees have a general obligation to create copyrightable works, such as Senate faculty when they conduct and publish research. And represented librarians bear a “general obligation” to produce scholarly works because, under their labor contract and review criteria, creating scholarship is a factor affecting career advancement. 

But what about other campus employees whose job descriptions are less clear and who have no clarifying labor contract? To help you figure out whether you have a “general obligation” to create scholarly works, you can consult copyright ownership policy FAQ #9, which basically says that there is likely some document in writing—whether a contract or written job description or documentation—that would suggest that creating scholarly works is part of your job. In instances where it’s not clear from that documentation, employees may want to consult with their supervisors to discuss the matter.

One other note on collective bargaining agreements. The revised copyright ownership policy contains a provision that if there’s a conflict between it and a union agreement governing copyright ownership by represented employees, then the union agreement prevails.

Note that students (as opposed to employees) always hold copyright in anything they create while studying at the UC, unless certain conditions apply (e.g. the student created a work in the scope of their employment, it was part of a sponsored grant project, etc.) The new copyright ownership policy also clarifies that works created by graduate students (such as theses, dissertations, etc.) are considered “Student Works,” thus under most circumstances the copyright resides with the graduate student. 

When does the University (rather than the author) own copyrights? 

Quick Answer: The University holds the copyright for works created by employees who do not have a “general obligation” to create scholarly works, for most grant-sponsored or commissioned works, and for works that require “Significant University Resources” in the creation of the work.

Read More: There are several common situations in which the University owns the copyright in works created by employees:

  1. When the work is created by an employee who does not have a “general obligation to create scholarly and aesthetic works”: This remains largely unchanged from the previous policy.
  2. When the work is a sponsored or commissioned work:  Sponsored or commissioned works are typically situations in which the University has entered into a separate written agreement with the employee, such as for certain grants or special projects. But the definition of “sponsored works” has been clarified in the new policy so that it’s clear that Academic Authors retain copyright in scholarly articles or other works created based on the underlying findings or deliverables of the sponsored project.
  3. When the work was created with significant university resources: Under the old policy, the University could claim copyright ownership to the works produced by Academic Authors if the author leveraged any “University Resources” while creating the material. The revised copyright ownership policy further limits the cases where this would apply. Now, the University may not claim copyright ownership unless “Significant University Resources” were used to facilitate creation of the work. For something to be considered significant, it must be “beyond the usual support provided by the University and generally available to similarly situated Academic Authors.” And the policy clarifies that support such as customary administrative assistance, library facilities, office space, personal computers, network access, and salary are considered usual support and will not be deemed “significant.” FAQs #14-17 provide more information on “Significant University Resources.” 

In sum, the new copyright ownership policy provides some useful clarity for authors to understand when they hold the copyright. And in a few important ways, it expands and strengthens the ability for these authors to hold copyright in works they produce at the UC.

If you have any questions, please contact schol-comm@berkeley.edu.