Approved May, 1975
Table of Contents
A. Introduction
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The Scope of Policy
This policy represents an attempt to introduce order to the heretofore unsettled area of audio-visual instruction by offering definitions and guidelines relevant to the relationship between the University and its faculty members on such matters as the creation, ownership, use of and compensation for recorded audio-visual materials produced at the University.
The definition of audio-visual recorded materials should include films, film strips, film loops, tape/slide programs, series of overhead transparencies, video tape or television programs, audio tapes, audio or video cassettes, instructional programs related to computers, or any other electronically produced materials whatsoever together with any secondary print materials which form an integral part of the production.
This statement of policy is not intended to modify the Senate Statement on the University Appointment: Freedom and Responsibility. It should be noted also at the outset that this policy is intended to be relevant only where any audio-visual recorded instructional materials, including related printed materials, are prepared or developed by a faculty member(s) in the course of discharging the responsibilities of his/her University appointment and are produced with the use of university time, facilities, resources or financial support and where it is reasonable to expect the materials may be distributed outside of the University on an exchange or a commercial basis. This policy does not require the producing faculty member to use the University's facilities for his/her production purposes; he/she is at liberty to seek production facilities outside the University and in such cases there is no requirement that he/she enter into any arrangement with the University. If the faculty member does propose to use the University's facilities, he/she should enter into a written agreement with the university negotiated within the guidelines of this policy statement. The policies formulated in these materials are provided to guide the parties in their deliberations to their ultimate goal. To this end, the draft agreement included is presented simply as a form of the document that may be employed.
The approach taken is to suggest that in most cases the faculty member and the University will reach an agreement which can loosely be described as one of partnership wherein each party recognizes the contributions of the other and in this recognition seeks to share the benefits and obligations with the other in an equitable way. Each case will differ from all others and so the parties should clearly understand that they are free to negotiate any compromise arrangement possible.
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General Interests
The following interests are those which have been recognized, balanced and as far as possible accommodated in determining every aspect of this policy and thus represent its very foundations:
- The University has an interest derived from its economic investment in production by way of equipment costs and operating costs including salaries for technicians and co-operating faculty members.
- The general community but more particularly the academic community has an interest in the efficient, effective use and easy accessibility of educational materials.
- The general community but more particularly the academic community has an interest in the development of scholarship and thus in the provision of sufficient academic freedom and incentives therefore.
- The faculty member has an interest in the script and original written materials to be used or incorporated in any audio-visual production arising from his/her creative investment and authorship.
- The faculty member has an interest in any such recorded production as is covered by this policy stemming from his/her creative investment and authorship.
- The faculty member has an interest in enhancing and maintaining his/her academic and personal reputation.
- The faculty member has an interest in employment and income security, i.e. in maintaining his/her level of ability to command employment and income.
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Agreements
The relationship of the University and the faculty member on such matters as the creation, ownership, use, revision, withdrawal of and compensation for recorded materials produced at the University should be set down in an agreement between the parties, entered into before production. The agreement should be based on and reflect this policy. The form it may take is found in Appendix "A" of this policy.
B. Creation
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Participation
A faculty member should not be required to participate in any phase of the development, preparation or production of recorded materials unless such participation is made a condition of his/her appointment. Refusal to participate should not affect his/her present or future status as a faculty member.
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Academic Responsibilities
If a faculty member participates in any phase of the development, preparation, production or administration of such audio-visual recorded materials, the impact of such participation on his/her other responsibilities should be discussed with his/her department head.
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Content
The faculty member should have the same degree of academic freedom and autonomy in the creation of recorded instructional materials within the scope of this policy as he/she has in the other more traditional forms of instruction. Therefore the faculty member and not the University should have control over the content of recorded materials.
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Copyright Clearance
The faculty member and the University should bear the joint responsibility for securing copyright clearances on copyrighted materials which they use in any recorded production. The University should have carriage of the application for copyright and should apply for clearances where necessary. All costs relating to the applications for copyright and clearances should be treated as costs of production.
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Academic Credit
- The contribution of any faculty member to any recorded audio--visual instructional production should be acknowledged in the original and all copies.
- The major contributions by a faculty member to the content of audio-visual recordings should be recognized as part of his/her scholarly achievement.
- Such major contributions should be included, where appropriate, in listings of publications and scholarly papers, for curricula vitae, grant applications and reports prepared by the University.
C. Ownership
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Copyright
Doubt has always existed as to who in law owns the copyright in materials produced by a faculty member in the course of discharging his/her responsibilities of appointment to the University. The weight of opinion sides with University ownership. Notwithstanding this and recognizing the mutual interests of both parties, it is our view that normally, copyright in an audio-visual instructional recording which is developed by the faculty member and produced with the use of the University's time, facilities, resources or financial support should vest jointly in the University and faculty member.
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Assignment
Neither the University nor the faculty member should assign the copyright or any other rights and responsibilities derived from the policy and expressed in an agreement without the express consent of the other party.
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Identification of Copyright
The joint copyright of the University and faculty member should be identified on all copies of audio-visual recordings.
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Ownership of the Master Copy
Apart from copyright, the University should have the ownership and property right in the master copy of an audio-visual recorded production developed by a faculty member and produced with the use of University time, facilities, resources or financial support.
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Right to Purchase a Copy
The faculty member should have the right to purchase a copy of the master from the University at the cost of reproduction.
D. Use
It is worthwhile at this point to reiterate the principle that this policy statement contemplates a partnership arrangement between the faculty member and the University. Accordingly, the period of the contract, the terms regarding original use, re-use and external distribution should be discussed and negotiated in advance by the parties. The suggestions made by us in the following paragraphs merely reflect what we suggest as a reasonable and clean-cut approach to these various points.
Rather than give either party absolute rights of re-use or external distribution, we recommend arbitration in the event of disagreement. We believe that this is in keeping with the spirit of this University and with the manner in which other disputes are ultimately settled.
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Original Use
The University may use an audio-visual production for its originally specified purpose for a period of five years commencing at the date that the production is available for use, subject only to provisions for withdrawal and revision.
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Re-use
The University should have the right to re-use internally instructional audio-visual recordings for a period of five years, as set out in #14, without the consent of the faculty member, subject only to provisions for withdrawal and revision. However, the University must give notice of the intended re-use to the faculty member and the faculty member shall have 15 days after actual notice in which to present reasons in writing to a Copyright Committee, to be established by the appropriate Senate Committee, showing why the re-use should not be made. The reasons given should relate to the inappropriateness of the production for the intended audience or to the danger to personal or professional reputation which might rest in a particular use. If the faculty member chooses to dispute the use, the Copyright Committee shall exercise its discretion in deciding whether to prohibit the use, based on its understanding of the particular circumstances of the case.
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External Distribution
The University should have control over and the right to external distribution, including the lending, renting or selling of audio-visual productions under this policy, for a period of five years, as set out in article #14, without the consent of the faculty member and subject only to provisions for withdrawal and revision. However, the same notice and dispute provisions as in article #15 apply here.
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External Distribution by Ex-Faculty Member
The control of the University over distribution should be exclusive within the contract period while the faculty member is in the service of the University, but when the faculty member has resigned or has been removed from his/her appointment the University's control should no longer be exclusive. The former faculty member should also have an equal right to distribution for the period of the contract without the consent of the University and subject only to the provisions for withdrawal and revision. However, the same notice and dispute provisions as in #15 and 16 apply here, except that the onus should be on the former faculty member to give notice, and the right should be in the University to dispute the use on the grounds of "inappropriateness" or possible detriment to the University's reputation.
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At the end of the five year period referred to in #14, 15, 16 and 17, or any other period agreed to by the parties, the materials should only be used or distributed by mutual consent.
E. Compensation
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No Special Compensation for Participation
The faculty member who participates in the production of an audio-visual recording covered by this policy should not normally receive special additional compensation over and above his/her salary except for any proceeds as set out in #22 herein. The faculty member should likewise not receive residual compensation for any re-use within the University.
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Duty to Charge
The University should have a duty to make a reasonable charge for any distribution of audio-visual recorded materials outside the University to non-educational institutions or private persons.
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Discretion to Charge
The University should have a discretion as to whether it will make a charge for any distribution of audio-visual recorded materials outside the University to educational institutions.
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Distribution of Proceeds
In this section "original production costs" means the normal tariff charge that the producing unit makes at the date of the agreement.
Where the University sells or rents any audio-visual recorded materials the proceeds should be divided as follows:
- First the proceeds should be used to defray the immediate costs of reproduction and distribution incurred by the University;.
- Then the remainder of the proceeds should be divided, 70% to the University and 30% to the faculty member, and paid on an annual basis until the original production costs have been recouped by the University;.
- After the original production costs have been recovered by the University, all proceeds above the distribution and reproduction costs should be divided, 50% to the University and 50% to the faculty member, and paid on an annual basis.
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If after the faculty member leaves the University he/she engages in distribution of the recorded audio-visual materials he/she has developed, he/she should have the same duty and discretion as does the University by articles 20 and 21, and the proceeds of any sales or rentals he/she arranges should be divided according to article 22.
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Revision and Withdrawal
Revision of audio-visual recorded materials ought to be done periodically to ensure that proper and current academic standards are met.
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Right to Revise
The faculty member should, in the interests of academic freedom, have the sole right to revise the contents of any audio-visual recorded materials he/she has developed.
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University Co-operation
To facilitate the revision process the University should allow revision by the faculty member on its time and with its facilities, resources and financial support if the University can afford the cost and if in the University's opinion the cost of revision is a reasonable expenditure.
Failure of the University to co-operate on revision should not affect the right of the faculty member to revise, but such a revision would have to be done at the faculty member's own expense. In the event that a faculty member does expend money on revision, he/she should recoup such expenditure prior to the split of proceeds as described in #22.2 and 22.3.
If there is a disagreement between the parties as to whether a proposed revision constitutes a revision or the creation of a new product, the Copyright Committee should determine this question on hearing the submissions of both sides.
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Incorporation of Revisions
Where revision is accomplished the results should as quickly as possible be incorporated in any copies of the recorded materials used within the University and, subject to the terms of any agreement for sales and distribution, in any materials distributed externally.
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Withdrawal
Within the contract period both the University and the faculty member should have a right to withdrawal of the audio-visual recording from internal re-use and external distribution upon application to the Copyright Committee if the applicant can convince the Committee that further use might be detrimental to his/her or the University's reputation. Within the contract period the erasure of the master copy by the University should amount to withdrawal and thus should only be done after a successful application to the Committee.
F. Death
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Passing of Rights
On the death of a faculty member or former faculty member any rights which he/she had derived under this policy or any agreement made in pursuance of this policy should pass to his/her estate. For the purposes of external distribution as provided in paragraph 17, a deceased faculty member should be considered to be a member of this University for the balance of the term of the agreement.
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Copyright Committee
A Copyright Committee should be established by the appropriate Senate Committee to regulate and enforce all rights and duties under this policy or agreements made pursuant to it; to hear and decide all disputes arising between the University and a faculty member over their relationship with regard to audio-visual recorded materials. The Senate may decide to delegate this responsibility to any existing committee established or to be established under its provisions for grievance procedures.
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Collaboration Outside the University
When a faculty member collaborates in a production with persons outside the University, a special agreement should be entered into between the faculty member and the University which provides for the separate interests of those outside.
NOTE: This is a sample of the type of agreement that may be entered into between the parties. The terms of the agreement are to be settled by negotiation within the guidelines of the policy statement.
Appendix A - Sample Agreement
THIS AGREEMENT made as of the ____ day of ______, 1975, BETWEEN
QUEEN'S UNIVERSITY AT KINGSTON
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_______________ hereinafter called "the faculty member"
WHEREAS __________ is a member of the Department of __________ in the Faculty of __________ at ¾ÅÐãÖ±²¥; AND WHEREAS the University and the faculty member agree to produce a recorded audio-visual program entitled " __________ " hereinafter called "the work";
WITNESSETH THAT:
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The University agrees that the participation by a faculty member in the production of the work should be considered as part of his/her teaching responsibilities.
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The University agrees that the faculty member shall have exclusive control over the contents of the work.
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The faculty member and the University agree that they shall bear joint responsibility for securing copyright clearances on copyrighted materials which they use in the work. The University shall have carriage of any applications for copyright or clearances and the costs shall be treated as costs of production and shall be recoverable as such.
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The University agrees that the contribution of the faculty member to the work shall be acknowledged in the original master and all copies.
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The University further agrees that at the request of the faculty member his/her major contributions shall be recognized in listings of publications and scholarly papers, for curricula vitae, grant applications and reports prepared by the University.
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The parties agree that the copyright in the work shall vest jointly in the University and the faculty member, and to the extent that each party has any interest therein each assigns and transfers such right, title, and interest in the copyright so as to effect this joint copyright.
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The parties agree that neither shall assign his/her/its interest in the joint copyright or any other rights and responsibilities derived from this agreement without the express consent of the other party.
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The parties agree that the joint copyright shall be identified on all copies of the work.
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The faculty member acknowledges that the University shall have the ownership and property right in the master copy of the work.
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The University acknowledges that the faculty member shall have the right to purchase a copy of the master from the University at the cost of reproduction.
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The faculty member agrees that the University shall have the right to use the work for years subject only to provisions for withdrawal and revision.
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The faculty member agrees that the University shall have the right to internally re-use the work otherwise than for the purpose expressed in paragraph 11, for the contract period subject only to provisions for withdrawal and revision.
However the University agrees that it shall give notice of the intended re-use to the faculty member and that the faculty member shall have the right to present reasons in a written application before the Copyright Committee within 15 days after notice showing why the re-use should not be made. The reasons must relate to the inappropriateness of the work for the intended audience or to the possible danger to personal or professional reputation which might rest in the particular re-use.
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The faculty member agrees that the University shall have control over and the right to external distribution including the lending, renting or selling of the work for the contract period without the consent of the faculty member and subject to provisions for withdrawal and revision.
However the University agrees that its duty to give notice and the faculty member's right to apply to the Copyright Committee as expressed in paragraph 12 for re-use shall be applicable here for external distribution.
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The University agrees that, although its control over distribution shall be exclusive during the contract period while the faculty member is in the service of the University, when the faculty member has resigned or has been removed from his/her appointment the University's control over distribution shall no longer be exclusive. Rather the former faculty member shall also have an equal right to distribution for an indefinite period without the consent of the University and subject to the provisions for withdrawal and revision.
However the faculty member agrees that he/she shall give notice of the intended use by distribution to the University and that the University shall have the right to present reasons in a written application before the Copyright Committee within 15 days after notice showing why the particular use by external distribution should not be permitted. The reasons must relate to the inappropriateness of the work for the intended audience or to the potential detriment to the University's reputation which might rest in the particular use.
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Both parties agree, that where an application disputing an intended re-use or distribution has been filed under paragraphs 12, 13 or 14 before the Copyright Committee, the Committee shall make a final decision on whether to permit or prohibit the use based on its understanding of the particular circumstances of the individual case.
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At the end of the contract period, the parties agree that the materials shall only be used or distributed by mutual consent.
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The faculty member agrees that he/she shall not receive special additional compensation over and above his/her salary for his/her participation in the production of the work except for any proceeds as setout herein. The faculty member also agrees that he/she shall not receive additional or residual compensation for any re-use within the University.
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The University shall have a duty to make a reasonable charge for any distribution of the work outside the University to non-educational institutions or private persons.
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The University shall have a discretion as to whether it will make a charge for any distribution of the work outside the University to educational institutions.
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In this section, "original production costs" shall mean the normal tariff charge that the producing unit makes at the date of the agreement.
Where the University sells or rents the work the proceeds shall be divided as follows:
- First the proceeds shall be used to defray the immediate costs of reproduction and distribution incurred by the University;
- Then the remainder of the proceeds shall be divided, 70% to the University and 30% to the faculty member, and paid on an annual basis until the original production costs have been recouped by the University;
- After the original production costs have been recovered by the University all proceeds above the distribution and reproduction costs shall be divided, 50% to the University and 50% to the faculty member, and paid on an annual basis.
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If after the faculty member leaves the University he/she engages in distribution of the recorded work he/she has developed, he/she will carry the same duty and discretion as does the University by articles 18 and 19 and the proceeds of any sales or rentals he/she arranges will be divided according to article 20.
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The faculty member shall, in the interests of academic freedom, have the sole right to revise the contents of the work he/she has developed.
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To facilitate the revision process, the University shall allow revision by the faculty member on its time and with its facilities, resources and financial support if the University can afford the cost and if in the University's opinion the cost of revision is a reasonable expenditure.
Failure of the University to co-operate on revision shall not affect the right of the faculty member to revise but such revision would be done initially at the faculty member's own expense and he/she shall then recoup such expenditure prior to the split of proceeds as described in #20.2 and 20.3
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Where revision is accomplished the results shall as quickly as possible be incorporated in any copies of the work used within the University and subject to the terms of any agreement for sales and distribution, in any copies of the work distributed externally.
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Within the contract period both the University and the faculty member shall have a right to withdrawal of the recorded work form internal re-use and external distribution upon application to the Copyright Committee if the applicant can convince the Committee that further use might be detrimental to his/her or the University's reputation.
The erasure of the master copy by the University shall amount to withdrawal and thus should only be done after a successful application to the Committee.
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On the death of the faculty member any rights which he/she had derived under this policy or any agreement made in pursuance of this policy shall pass to his/her estate.
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It is agreed that all disputes concerning either the creation, ownership, use of and compensation for the work or any other matter whatsoever related to the work shall be submitted to the Copyright Committee which will render a final and binding decision.
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¾ÅÐãÖ±²¥ at Kingston
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Faculty Member