Memorandum of Understanding
Assuring Rights of Use of Instructional Materials

This Memorandum of Understanding (“Agreement”) is adopted by the following school or department or other unit (the “School”) within Indiana University Purdue University Indianapolis (“IUPUI”) or Indiana University (IU):

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A. The School desires to encourage members of its faculty to provide their best quality services for the production of course materials (the “Course Materials”) that may be used in conjunction with one or more courses (the “Course”) to be offered by Indiana University (“IU”) and transmitted to students by various means and at various locations.

B. The parties desire to assure to faculty authors (collectively the “Instructors”) and to IU the ability to use the Course Materials as specified in this Agreement for the advancement of their mutual interests in the best quality education, research, publication, and other scholarly endeavors. This Agreement is especially intended to apply to the work of full-time faculty members; the School may desire other terms applicable to the work of part-time faculty, staff, or contractors.

C. The parties recognize the need to be consistent with the Indiana University Intellectual Property Policy (the “IP Policy”), adopted by the IU Board of Trustees on May 9, 1997, and with any duly adopted amendments to that policy and other appropriate policies of IU that are binding with respect to the Course Materials. To the extent that the Course Materials are “Applicable Intellectual Property” as defined under the IP Policy, this Agreement makes no change in the applicability of the IP Policy to such works. This Agreement applies only to those portions of the Course Materials that are not “Applicable Intellectual Property.”

D. The School recognizes that it is a unit of IU and may hold, manage, and exercise any rights accorded to IU under this Agreement, with recognition that it is acting on behalf of the Trustees of IU, and is subject to appropriate actions of the Trustees. The School also recognizes that it should exercise its authority under this Agreement in cooperation with the Instructors, and with the recognition that decisions may directly affect the interests of the Instructors and the integrity of the Course Materials.

E. With respect to rights to the Course Materials held by the Instructors as individuals, they are assenting to the terms of this Agreement, as between the Instructors and IU, including any assignment or license of their rights as described in this Agreement. To that end, each participating Instructor shall execute an “Instructor’s Addendum” indicating assent and providing the additional information as specified in this Agreement.

The parties hereby agree as follows:

I. Production of Course Materials

1.1 Description and Purpose. Each participating Instructor shall produce Course Materials as described, and according to the schedule, specified in the Instructor’s Addendum. For purposes of this Agreement, the Course Materials shall include only those contributions created by the Instructor. This Agreement does not address rights with respect to elements of the Course created by anyone other than the Instructor, including, without limitation, elements created by other staff members of IU or third parties. Rights to such elements of the Course may be governed by applicable law, policy, or other agreement.

1.2 Funding and Other Support. The School shall provide the financial, equipment, staff support, and other resources and benefits, as described in the Instructor’s Addendum, to assist the Instructor in preparing the Course Materials.

II. Rights of Use of the Course Materials

2.1 Instructor’s Rights of Use. The parties to this Agreement anticipate that the Course Materials may be “instructional materials” as defined in the IP Policy, and thus most rights of use will reside with the Instructor; in the alternative, the Course Materials may be “institutional works” as defined in the IP Policy, and thus most rights of use will reside with IU.* Regardless of the policy status of the Course Materials, the parties hereby agree that the Instructors reserve the right to use their individual contributions to such instructional materials, without further consent or approval from IU, in any scholarly or creative works that do not compete directly with IU’s actual or planned use of the Course Materials, subject to any IU policies and procedures as may be in effect from time to time related to such materials and uses. In particular, the Instructors have the right to use their individual contributions in teaching courses on related topics and in preparing textbooks, journal articles, conference presentations, consulting projects, and other scholarly works or professional activities. In furtherance of such permitted uses, the Instructors may authorize third parties, including publishers, to act on the Instructors’ behalf.

2.2 University Rights of Use. Subject to the restrictions set forth in this Agreement, IU may use the Course Materials in connection with courses offered by IU (whether credit or non-credit) with enrolled students, and for independent study by enrolled students, whether those students are located at an IU campus or are accessing the Course Materials at another location or through distance education. IU’s rights include the right to reproduce, distribute, perform, display, and transmit the Course Materials and to prepare derivative works based on the Course Materials in furtherance of IU’s allowed uses. In furtherance of such permitted uses, IU may authorize third parties to use the Course Materials on IU’s behalf.

2.2.1 Archival Copies. IU may retain copies of the Course Materials for archival purposes and make them available to students for their study and reinforcement. IU may also make archival copies of the Course Materials available to any persons who have access to the library or other facility at IU where access to such copies will be maintained. IU has no obligation under this Agreement to restrict access to such archival materials. The ability of persons to borrow or to make copies of the Course Materials will be subject to the customary standards of the library or other facility at IU with respect to similar materials.

2.2.2 Time Limit on University Use. Other than rights with respect to archival copies pursuant to Section 2.2.1, the right of IU to use the Course Materials pursuant to this Agreement shall terminate on the date specified in the Instructor’s Addendum. The right of IU to use the materials shall continue until that date, regardless of whether or not the Instructor has remained employed with IU. The parties understand that this termination is based on the parties’ best effort to project the likely viability of the Course Materials for future instruction. The parties may agree in writing at a future date to extend the termination date based on the continuing viability of the Course Materials and the availability of revisions or updates.

III. Instructor’s Rights of Control and Credit

3.1 Quality, Clarity, Currency. The Instructors shall have primary control of the substantive and intellectual content of their respective Course Materials, at the time of their production and during their use by IU, in a manner consistent with standards and traditions of academic freedom. As with the preparation of any other scholarly or creative works, the Instructors shall be expected to deliver accurate and current information. The Instructors are responsible for the clarity and precision and the method of communicating information contained in the Course Materials. IU has no obligation to continue to use any of the Course Materials that do not meet IU’s appropriate standards of quality.

3.2 Procedure for Updates.

3.2.1 In the event that an Instructor becomes aware of the need to produce a supplemental update to the Course Materials, the Instructor shall deliver written notification of such need to the School. Upon delivery of that written notice, the parties shall determine in good faith within forty-five (45) calendar days the extent to which the Instructor may create the supplemental materials and the extent of any funding or other resources that will be provided by IU to meet the stated need.

3.2.2 In the event that an Instructor has not sent such notice, but the School recognizes a need to prepare such a supplemental update, then the School may initiate the process by delivering a written notification of such need to the Instructor. Upon delivery of that written notice, the parties shall determine in good faith within forty-five (45) calendar days the extent to which the Instructor may create the supplemental materials and the extent of any funding or other resources that will be provided by IU to meet the stated need.

3.2.3 If the updates provided for in this Section are not completed within the designated time period or do not meet standards of quality and accuracy consistent with the Course Materials overall and the standards of instructional works at IU, then IU may in its discretion and at its expense make such updates as IU deems appropriate. IU may in its discretion continue to use the Course Materials while any updates are pending.

3.2.4 Any and all updates prepared by an Instructor consistent with this Agreement are for purposes of this Agreement deemed to be part of the Course Materials.

3.3 Named Credit. The Instructors shall receive named credit as an author or developer on all copies of their respective Course Materials prepared by or authorized by IU. Each Instructor has the right to require removal of his or her name from any copies of the Course Materials made or authorized by IU following receipt of written request by the Instructor.

3.4 No Indemnification by the Instructor. The Instructors shall not include in the content of the Course Materials any content which the Instructors know to, or have reason to believe may, constitute libel, invasion of privacy, infringement of copyright or other literary rights, or otherwise violate the legal rights of any persons or entities who are not a party to this Agreement. Any responsibility or liability for such violations shall be treated in a manner consistent with the customary treatment of similar violations as they may occur in the context of teaching at IU. To that end, each Instructor has read and agrees to adhere to IU policies with respect to copyright, fair use, and other relevant issues. Otherwise, the Instructors make no warranty to IU with respect to the appropriateness of including any content in the Course Materials. Should either an Instructor or the School reasonably conclude that any of the content of the Course Materials may violate such rights of third parties, the procedure and the right to make revisions shall be consistent with the procedures set forth in Section 3.2 above. Pending such revisions, IU shall have the right to remove or revise the portions of the Course Materials that create the potential violations before making any further use of the Course Materials pursuant to this Agreement.

3.5 Credit for Teaching Workload, Promotion, and Tenure. This Agreement does not address any compensation or set any standards or make any adjustments with respect to the Instructor’s workload, course enrollments, teaching evaluations, and teaching credit for purposes of review, promotion, tenure, and other employment duties at IU. These issues must be examined outside the context of this Agreement and may require participation by other members of the IU community.

IV. Allocation of Revenues and Responsibilities

4.1 Allocation Between IU and an Instructor. Should IU receive any revenues from the broadcast, sale, or other distribution or use of the Course Materials, the parties shall allocate the revenue between IU and the Instructor in proportion to the Instructor’s contribution to the finished work and in accordance with the schedule of “revenue distribution” provided in the IP Policy. For purposes of this allocation, the Instructor shall receive the portion of revenue allocated to the “Creator” under the IP Policy. Allocable revenues shall exclude tuition and fees paid by students to take a course based on the Course Materials. This formula shall also allow IU to recoup its expenses associated with production and update of the Course Materials before allocating revenues to the Instructor.

4.2 Allocations Among Multiple Instructors.

4.2.1 Should multiple Instructors contribute to the Course Materials for a single Course, but their contributions are distinct and identifiably separate, each of the Instructors should enter into a separate Instructor’s Addendum, and each contribution shall be treated separately from the others.

4.2.2 Should multiple Instructors contribute to the Course Materials for a single Course, but their contributions are intermingled and not identifiably separate, all of the Instructors should enter into a single Instructor’s Addendum with respect to the Course Materials collectively. That Instructor’s Addendum shall set forth the agreement, if any, among the Instructors for the allocation of their collective share of revenue among themselves. In the event that the Instructors should not agree otherwise, their collective share of revenue shall be divided among the Instructors in equal shares. The Instructor’s Addendum shall further specify the agreement, if any, among the Instructors with respect to identifying which of them shall have authority to exercise rights given to the Instructors collectively under this Agreement, such as the general rights of use pursuant to Section 2.1 or the right to make updates pursuant to Section 3.1. In the event that the multiple Instructors should not agree otherwise, such authority shall be exercised by a majority decision of them.

V. Copyright Ownership

5.1 Ownership of the Copyright. With respect to any works, projects, or other materials based on the Course Materials and prepared by an Instructor pursuant to the Instructor’s rights of use consistent with this Agreement, the Instructor shall have the right to claim and exercise the rights of the copyright owner. With respect to any works, projects, or other materials based on the Course Materials and prepared by IU pursuant to IU’s rights of use consistent with this Agreement, IU shall have the right to claim and exercise the rights of the copyright owner of the Course Materials. As of the date of termination of IU’s rights of use, as set forth in Section 2.2.2 above, IU’s rights with respect to the Course Materials shall terminate, and effective as of that date, IU hereby transfers and assigns to the Instructor all copyright interest that IU holds in the Course Materials. IU shall prepare at its expense all appropriate documents of assignment or transfer, as may be requested by the Instructor. The Instructor and IU understand that their respective copyright interests as set forth in this Agreement are subject to the rights of use held by one another; the parties accordingly understand that they may need to inform publishers and other third parties of the terms of this Agreement, and that neither the Instructor nor IU may hold all rights with respect to any work incorporating any portion of the Course Materials.

5.2 Not “Work Made For Hire.” In order to avoid undesirable consequences under the law, the parties agree that the Course Materials will not be treated as a “work made for hire” under the U.S. Copyright Act, to the extent that they may make such agreement under the law.

5.3 Copyright Held by Instructor. In the event that the Course Materials are deemed by a court of competent jurisdiction to be “work made for hire,” notwithstanding Section 5.2, IU agrees that it will hold any rights associated with the Course Materials only in a manner consistent with the terms of Section 5.1 above, including, without limitation, the rights of use and the reversion or transfer of title reserved to the Instructor.

VI. General Provisions

6.1 Entire Agreement. This Agreement contains the entire agreement among the parties with respect to the matters explicitly addressed in this Agreement, and there are no agreements, representations, or warranties that are not set forth. All prior negotiations, agreements, and understandings are superseded. This Agreement may not be amended or revised except by a writing signed by all the parties.

6.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, and successors of the respective parties; provided however, that this Agreement and all its rights may not be assigned by any party except by or with the written consent of the other parties, other than as explicitly stated elsewhere in this agreement. Except as otherwise explicitly provided, this Agreement is not intended and shall not be construed or deemed to create or confer any right or benefit to any person not a party hereto.

6.3 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when bearing original signatures, shall be deemed to be a duplicate original.

6.4 Severability. The provisions of this Agreement are severable and, if part of it is ever found to be invalid or unenforceable, in whole or in part, as to any particular type of claim or any particular circumstance, it shall remain fully valid and enforceable as to all other claims and circumstances.

6.5 Choice of Forum and Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, and the courts of the State of Indiana shall have exclusive jurisdiction over all disputes arising hereunder or in connection with the subject matter hereof.

Adopted by the School as of the ______ day of ____________, 20___.

For the School:
Dean, Chair, or Director

Signed: ____________________________

Printed Name: ______________________

Title: _____________________________

Instructor’s Addendum

Memorandum of Understanding
Assuring Rights of Use of Instructional Materials

The Instructor named below enters into this addendum to the Memorandum of Understanding Assuring Rights of Use of Instructional Materials (the “Agreement”), previously adopted by the named School, and hereby assents to be bound by the terms of the Agreement as an “Instructor.” In furtherance of the terms of the Agreement, the parties have agreed to the information below:

(See Section 1.1) Description of the “Course Materials” and the Schedule for Delivery:

(See Section 1.2) Funding and Other Support provided to the Instructor:

(See Section 2.2.2) Termination Date, if any, of IU’s Rights:

(See Section 4.2.2) Agreement, if any, Regarding Division of Revenue:

(See Section 4.2.2) Agreement, if any, Regarding Exercise of Management Rights:

Instructor:

Signature: __________________________

Printed Name: _______________________

Date: ______________________________

Approved and Accepted by the School:

Signature: __________________________

Name & Title: _______________________

Date: ______________________________

pdf version

*The current IP Policy provides this definition: “’Instructional materials’ are defined as works, other than institutional works, the primary use of which is for the instruction of students. Such works include textbooks, syllabi, and study guides.” Section 2.a. of the IP Policy provides that IU has no rights to instructional materials “unless such rights are voluntarily transferred by the Creator.” This Agreement is a means of voluntarily transferring some rights to IU. The IP Policy further provides: “’Institutional works’ are defined as works created at the instigation of the University, under the specific direction of the University, for the University’s use, by a person acting within the scope of his or her employment or subject to a written contract.” Section 2.c. of the IP Policy provides that IU “shall own intellectual property rights in institutional works, except as provided in prior written agreements between the University and the persons who create those works.” The IP Policy further specifies that Creators shall have no rights to any revenue from institutional works. This Agreement is a means for the parties to make an alternative agreement with respect to rights and revenues as anticipated by the IP Policy. Return to Text.

Revision: November 26, 2002