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Additional Information
OTD and University-Owned Software Inventions
U.S. Copyright law is clear about who is entitled to claim ownership of copyrightable software. The owner of a copyright is either:
- the person who creates it;
- the person or business who pays another to create it in an employment context; or
- the person or business that commissions the work under a valid "work for hire" contract.
But that's only part of the story. Since copyright protects original works of authorship, and a body of computer code is legally a "literary work," many in the academic community consider software to be merely a variation of more familiar written works, such as theses, research papers or course material. This has led to confusion regarding ownership.
Over the years, a single policy concerning copyright ownership of software has evolved at Harvard to address the practical issues unique to a university setting. Most of the Faculties and the Central Administration routinely observe this general software ownership convention, although several have departed from its tenets to set ground rules more consistent with that particular School's academic mission.
For the most part, the University's policy, may be summed up as follows.
Faculty
If software is created by faculty members who are not being paid specifically to create software, a formal assignment to the University is required when the faculty member and the University have agreed, or the University and a sponsor have agreed, that the University will own the software. (See also "Other General Considerations", below.)
Students
Ownership of software created by a student as part of his or her Harvard activity using resources or facilities generally available to students as part of their education activities shall remain with the student unless
- the software is created as part of the student's employment by Harvard (whether paid by stipend or salary);
- the software is created in work subject to a sponsored research agreement;
- the software is created as part of work within a program, laboratory or department which has a specific policy that software will be owned by the University (this policy must be communicated to the student before work is begun); or
- the software is created with the use of substantial University resources or facilities. The use of resources or facilities generally available to students as part of their educational activities would not be considered "substantial" in this context.
Unless the University has some obligation or special investment in regard to the work leading to the software that would make University ownership appropriate, the intent is to vest ownership in the student of any software which was created as part of the student's classwork or as part of normal extra-curricular activities.
Non-Teaching Staff
Ownership is clear if a staff member who is not a faculty member creates software as part of his or her normal duties. In such cases U.S. Copyright law provides that the employer, in this case Harvard University, automatically owns the copyright. However, if such a staff person creates software that is not part of his or her normal duties, the ownership would remain with the individual.
Consultants
Copyright ownership of software created by non-Harvard faculty, staff, or students on a contract or consulting basis is owned by the consultant unless there is a prior written agreement between Harvard and the individual to the contrary.
Other General Considerations
Other situations which may affect copyright ownership of software include:
From a Harvard perspective...
- if the work was supported by funds from an external sponsor and the agreement between the sponsor and Harvard stipulates University ownership
- if "substantial University resources" were utilized
From a statutory perspective...
- if the software is a modification, enhancement or derivative of pre-existing software, the terms of the license for the pre-existing software must be considered and permission may have to be obtained from the copyright owner
- if the software incorporates computer code from some pre-existing software (or even written text) and is not in the public domain, permission must be obtained from the copyright owner to use that pre-existing material
- if the software was created using pre-existing software (for example, an operating system or authoring system), the license terms for such pre-existing software must be observed.
"Local" Variations
In several Faculties and in the Central Administration, policies have been adopted which supplement University policy. In such cases, these individual Faculty policies will take precedence, or the Faculty will determine copyright ownership on a case-by-case basis
- when software is created as part of an externally sponsored project which does not contain provisions relating to ownership; or
- when software is created specifically for use by Harvard, such as the development of course material.
This array of permutations may dismay software authors who seek simple guidelines on ownership issues. Since much of the determination will be fact-driven, recommend that authors consult OTD or their Administrative Dean or Vice President.
Definitions
- The term "U. S. Copyright law" means the Copyright Act of 1976, 17 U.S.C. § 1, et seq.
- The term "software" is used here to designate computer programs in the broadest sense, including user's manuals and other explanatory material which accompany computer programs, as well as computerized data bases. The term "computer programs" usually include microcode, subroutines, operating systems, high level languages, application programs in whatever form expressed (machine or assembly language, source or object code) or embodied (such as chip architecture, ROM, disk or tape storage, program listings).
- The term "substantial University resources" is somewhat subjective, and will relate to the amount of staff, facilities, financial, or other University resources used by the author to create the software. The determination of whether such use rises to the level of "substantial" may depend upon (a) whether the author is a member of the Faculty, or is a staff member, or a student, or has some other affiliation with the University, and (b) the nature of the software product.
Additional Information
OTD and University-Owned Software Inventions
U.S. Copyright law is clear about who is entitled to claim ownership of copyrightable software. The owner of a copyright is either:
- the person who creates it;
- the person or business who pays another to create it in an employment context; or
- the person or business that commissions the work under a valid "work for hire" contract.
But that's only part of the story. Since copyright protects original works of authorship, and a body of computer code is legally a "literary work," many in the academic community consider software to be merely a variation of more familiar written works, such as theses, research papers or course material. This has led to confusion regarding ownership.
Over the years, a single policy concerning copyright ownership of software has evolved at Harvard to address the practical issues unique to a university setting. Most of the Faculties and the Central Administration routinely observe this general software ownership convention, although several have departed from its tenets to set ground rules more consistent with that particular School's academic mission.
For the most part, the University's policy, may be summed up as follows.
Faculty
If software is created by faculty members who are not being paid specifically to create software, a formal assignment to the University is required when the faculty member and the University have agreed, or the University and a sponsor have agreed, that the University will own the software. (See also "Other General Considerations", below.)
Students
Ownership of software created by a student as part of his or her Harvard activity using resources or facilities generally available to students as part of their education activities shall remain with the student unless- the software is created as part of the student's employment by Harvard (whether paid by stipend or salary);
- the software is created in work subject to a sponsored research agreement;
- the software is created as part of work within a program, laboratory or department which has a specific policy that software will be owned by the University (this policy must be communicated to the student before work is begun); or
- the software is created with the use of substantial University resources or facilities. The use of resources or facilities generally available to students as part of their educational activities would not be considered "substantial" in this context.
Unless the University has some obligation or special investment in regard to the work leading to the software that would make University ownership appropriate, the intent is to vest ownership in the student of any software which was created as part of the student's classwork or as part of normal extra-curricular activities.
Non-Teaching Staff
Ownership is clear if a staff member who is not a faculty member creates software as part of his or her normal duties. In such cases U.S. Copyright law provides that the employer, in this case Harvard University, automatically owns the copyright. However, if such a staff person creates software that is not part of his or her normal duties, the ownership would remain with the individual.
Consultants
Copyright ownership of software created by non-Harvard faculty, staff, or students on a contract or consulting basis is owned by the consultant unless there is a prior written agreement between Harvard and the individual to the contrary.
Other General Considerations
Other situations which may affect copyright ownership of software include:From a Harvard perspective...
- if the work was supported by funds from an external sponsor and the agreement between the sponsor and Harvard stipulates University ownership
- if "substantial University resources" were utilized
From a statutory perspective...
- if the software is a modification, enhancement or derivative of pre-existing software, the terms of the license for the pre-existing software must be considered and permission may have to be obtained from the copyright owner
- if the software incorporates computer code from some pre-existing software (or even written text) and is not in the public domain, permission must be obtained from the copyright owner to use that pre-existing material
- if the software was created using pre-existing software (for example, an operating system or authoring system), the license terms for such pre-existing software must be observed.
"Local" Variations
In several Faculties and in the Central Administration, policies have been adopted which supplement University policy. In such cases, these individual Faculty policies will take precedence, or the Faculty will determine copyright ownership on a case-by-case basis
- when software is created as part of an externally sponsored project which does not contain provisions relating to ownership; or
- when software is created specifically for use by Harvard, such as the development of course material.
This array of permutations may dismay software authors who seek simple guidelines on ownership issues. Since much of the determination will be fact-driven, recommend that authors consult OTD or their Administrative Dean or Vice President.
Definitions
- The term "U. S. Copyright law" means the Copyright Act of 1976, 17 U.S.C. § 1, et seq.
- The term "software" is used here to designate computer programs in the broadest sense, including user's manuals and other explanatory material which accompany computer programs, as well as computerized data bases. The term "computer programs" usually include microcode, subroutines, operating systems, high level languages, application programs in whatever form expressed (machine or assembly language, source or object code) or embodied (such as chip architecture, ROM, disk or tape storage, program listings).
- The term "substantial University resources" is somewhat subjective, and will relate to the amount of staff, facilities, financial, or other University resources used by the author to create the software. The determination of whether such use rises to the level of "substantial" may depend upon (a) whether the author is a member of the Faculty, or is a staff member, or a student, or has some other affiliation with the University, and (b) the nature of the software product.