Based on my review of the Instructure Agreement, it is my opinion that section 4.2 does not jeopardize any intellectual property rights that the faculty may hold. While section 4.2 does require that a non-exclusive right and license to all content be transferred to Instructure, this transfer and license is limited solely to the operation and implementation of the Instructure Properties, i.e. their website and services. This section is required for Instructure to perform its obligations under the agreement and it does not waive any intellectual property rights that the faculty may hold.
However, please note that SRJC Board Policy 2.14 provides the following language concerning copyright ownership:
The right to claim copyright shall be determined in the following manner:
- A faculty or staff member may claim the right to copyright any material created outside of the faculty or staff member's employment with the District. If this creation involves use of District equipment or supplies, the faculty and staff member shall retain the right to copyright the material, but shall reimburse the District for the cost of production.
- The District may claim the right to copyright material if the District specifically commissioned it, or if the work is identified as an institutional effort. Otherwise, the right to copyright the material will belong to the faculty or staff member responsible for its creation.
- The District and the faculty or staff member may agree to share the right to copyright materials if the work is created by the faculty and staff member and the District contributes services, staff, or financial resources necessary for completion. This will be accomplished through a separate contract at the time the project is initiated. Faculty and staff should consult with their respective bargaining agent before entering into the contract.
- When District compensation is paid to faculty for the creation of new Online or Distance Education courses, these courses shall remain the property of the District and available to other qualified instructors.
As such, the ownership of the content may not necessarily be that of the faculty, but of the college instead.
Loren W. Soukup
Associate General Counsel
School and College Legal Services of California
4.2 Your Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Instructure Properties. Instructure does not claim ownership of Your Content. However, you grant Instructure a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sub licensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Instructure Properties. When you as a User post or publish Your Content on or in the Instructure Properties, you represent that you have the authority to grant the aforementioned license to Instructure. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any area of the Instructure Properties that is generally available to all Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.