NUMBER:   ACAF 1.39

SECTION:  Academic Affairs    

SUBJECT:  Software                               

DATE:     February 1, 1995



Latest Revision:October 23, 1996

                     

Policy for:     All Campuses

Procedure for:  All Campuses

Authorized by:  Donald J. Greiner

Issued by:      Provost's Office



________________________________________________________________



 I.  Preamble 



The software policy of the University seeks:  (1) to protect and

promote the traditional academic freedom of the University's

faculty, staff and students; (2) to balance fairly and reasonably

the equitable rights of software creators, sponsors and the

University; and (3) to ensure that any software in which the

University has an equity interest is utilized in a manner

consistent with the public interest.  



The primary goals in protecting and managing software are to

promote its widest possible distribution for the benefit of the

public and to produce revenue for the creator of the software,

his or her department and the University.  The "Copyright"

section of the University's Patent and Copyright policy (see the

Faculty Manual) provides that faculty members who author

uncommissioned works (including, by implication, software) own

the copyright in them.  There are, however, situations which are

not addressed by the University's Patent and Copyright policy due

to the complexities of software creation and protection.  In

particular, that policy does not address with sufficient clarity

those situations where the software creator receives substantial

assistance from the University by using University personnel,

equipment, materials, facilities or other resources in the

development of his or her software.  In those situations it is

necessary to determine ownership and equities on an individual

basis in accordance with the guidelines and procedures set forth

in this policy.  





II.  Definitions 



A.   "Computer software" means computer programs in the broadest

sense, including user's manuals and other explanatory materials

which accompany computer programs and computerized data bases,

microcode, operating systems, language compilers, and 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).  



B.   "Creator" means any person who creates computer software.  



C.   "Faculty" means members of the University's faculty as

defined in the Faculty Manual's sections on Regulations and

Policies, plus instructors, special faculty appointments and

part-time faculty.  



D.   "Intellectual property rights" means all federal and state

law bases for protecting rights in software, including patent,

copyright and trade secret protection.  



E.   "Staff" means any employee of the University other than

students and faculty as defined herein.  



F.   "Student" means any full-time or part-time postgraduate,

graduate or undergraduate student, regardless of whether the

student receives financial aid from the University or from

outside sources.  



G.   "University" means The University of South Carolina

including all campuses.  



H.   "Substantial assistance" means support beyond routine use of

a desktop computer, office, library facilities and secretarial

assistance, and the payment of salary, except for those

situations where funds are paid specifically to support the

development of software.  A rebuttable inference of "substantial

assistance" arises in, but is not limited to, the following

examples of non-routine activities in the development of

software:  



     1.   use of any University computational facility which

          cannot be used without prior written authorization; 



     2.   use of University facilities, equipment or other

          resources which are not available without charge to the

          public; or 



     3.   use of special facilities, equipment, personnel or

          other University resources which would cost the

          software creator more than $5,000 in constant 1988

          dollars if such facilities, equipment, personnel or

          other resources were purchased, leased or hired by the

          software creator in the public market.  





III. Policy



A.   The policies set forth below constitute an understanding which

is binding on University faculty, staff and students as a condition

of their use of University assistance to encourage and assist in

the development of computer software.



B.   Ownership Principles 



     1.   Faculty, staff or students own intellectual property

          rights to software they create when it is created without

          substantial assistance from the University.  



     2.   The University retains ownership of any intellectual

          property rights in software created by a staff member

          within the duties of his or her employment with the

          University.

  

     3.   If software is created as part of a sponsored project,

          then ownership of intellectual property rights is

          determined by the terms of the sponsorship agreement.  In

          the event the agreement is silent on the issue of

          ownership of intellectual property rights, then ownership

          shall be determined in accordance with Ownership

          Principle 5. below.  



     4.   If the University enters into an agreement with a

          department, staff or faculty regarding the creation of

          software, then ownership of intellectual property rights

          is determined by the terms of that agreement.  In the

          event the agreement is silent on the issue of ownership

          of intellectual property rights, then ownership shall be

          determined in accordance with Ownership Principle 5.

          below.

  

     5.   The University shall have intellectual property rights in

          all software which is developed with substantial

          assistance from the University.  





IV.  Procedure 



A.   The rights and equities of the parties should be determined in

a prompt and timely manner, and unnecessary expenditures of

resources should be avoided.  To that end, University faculty,

staff and students who have created software with substantial

University assistance shall, prior to commercial distribution, so

inform the University's Office of Technology Transfer, in writing,

in sufficient detail to enable a thorough review and evaluation. 

This should be accomplished by means of using the University's

Disclosure Form OTT.  



B.   Within 30 days after receipt of this written notification,

representatives of the Office of Technology Transfer shall meet

with the software creator and the parties shall make good faith

efforts to reach an agreement regarding ownership rights and

equities in the software.  



C.   In routine cases royalties may be allocated by agreement in

keeping with the guidelines set forth in the section "G. Equity."

in the copyright section of the University's Patent and Copyright

policy.  



D.   In non-routine cases, where the software creator and the

University's Office of Technology Transfer are unable to reach such

an agreement, the matter shall be referred to the University's

Patent and Copyright Committee for review and its written

recommendation to the Provost with respect to ownership and

equities in the disputed software.  The Committee's recommendation

about ownership shall be in keeping with principles set forth in

this Software policy and its recommendation about allocating

royalties shall be in keeping with the guidelines in section "G.

Equity." of the University's copyright policy as noted above.  





V. Reason for Latest Revision





The effect of this revision is to change the responsibility for

administering this policy from the University's Legal Department to

the Office of Technology Transfer.

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URL http://www.sc.edu/policies/acaf139.html