KENNETH D. SALOMON
DOW, LOHNES & ALBERTSON, PLLC
Washington, DC 

Checklist of Issues
for Evaluating the Adequacy of Institutional Intellectual Property and Employment Policies and Procedures for Electronic Courseware

• Does your institution have an Intellectual Property (“IP”) policy?  If so, when was it last reviewed and updated?
• Does your IP policy qualify the institution for the Liability Safe Harbor protections of the Digital Millennium Copyright Act?
• Does your IP policy address the issue of faculty ownership of and economic interest in courseware? 
• Do the terms and conditions of faculty employment address the issue of faculty ownership of and economic interest in courseware.
• Is your faculty organized?  If so, does the collective bargaining agreement address the issue of faculty ownership of and economic interest in courseware?  Has the matter been a formal subject of collective bargaining negotiations?
• Does your IP policy and your terms and conditions of faculty employment distinguish between ownership of traditional academic works (books, articles, lecture notes, syllabi, etc.) and ownership of electronic courseware (Internet, video based, etc.) created by faculty?  If so, how and where does your institution implement the distinction?
• Does your IP policy and your terms and conditions of faculty employment distinguish between courseware that is created by faculty independently and that which is created within the scope of employment?  Does the policy provide clear guidance as to when a work is considered produced within the scope of employment?
• Does your IP policy and your terms and conditions of faculty employment distinguish between works created under grants and those created under contracts with third parties?  Does your sponsored research office review all external agreements for IP issues?
• Do your faculty employment policies (or collective bargaining agreement) allow faculty to create courseware for other institutions?  If so, does the policy define what role faculty may they play in the delivery, promotion and maintenance of such courseware?
• Does your IP policy and your terms and conditions of faculty employment take into consideration the level of institutional financial, technological and staff resources used by the faculty member to design and create the electronic work in determining ownership and economic interests?
• Do your institutional policies deal with the circumstances under which the institution and the faculty member are permitted to use an electronic course after the faculty member leaves the institution?  If continued use of electronic courses by the institution and the faculty member is contemplated, what mechanism has been adopted to effectuate that policy?
• Does your IP policy and your terms and conditions of faculty employment deal with the sharing of revenue between the institution and the faculty member generated by the internal use of course materials?
• Does your IP policy and your terms and conditions of faculty employment deal with the sharing of revenue between the institution and the faculty member generated by the external use of course materials?
• Does your IP policy and your terms and conditions of faculty employment define who has the right (and how often) to update or modify an electronic course, and who may expand upon electronic courses?  Does the institution and/or the faculty member have the right to require updating of electronic courses?  Do your policies cover updating course materials after the faculty member is no longer at the institution?
• Does a faculty member who created an electronic course have the right of first refusal for the teaching of that course?
• Have the institution’s copyright site rights licenses been reviewed to determine whether the rights granted under the licenses cover the specific technologies employed by the institution for delivery of electronic courses?
• Is your IP policy coordinated with your patent policy?
• Does your institution aggressively protect the use of its name and logo?
• Does your IP policy control the use of the institution’s name and logo on electronic courseware?
• Is there a single office responsible for administering your IP policy and providing guidance to faculty on the policy and on copyright and licensing issues?