Research Administration Office

University of California

No. 85-16

July 8, 1985

Memo Operating Guidance

Subject: Ownership and Dissemination of Research Results

The enclosed materials may be of use to Contracts and Grants Officers in dealing with sponsor requests for ownership of or controls over dissemination of research results through classification, copyright, rights in data, export control, approval of hiring foreign nationals, release of information, and pre-publication review clauses, as follows:

October 1, 1984 Memorandum from the Under Secretary of Defense regarding Publication of the Results of DOD Sponsored Fundamental Research, including two attachments:

National Policy on the Transfer of Scientific and Technical Information -(Draft of June 15, 1984)(Attachment I to above)

Publication of the Results of DOD Sponsored Fundamental Research Performed in Government Laboratories and Components (Attachment 2 to above)

Scientific Freedom and National Security, Issue 4, December, 1984

Scientific Freedom and National Security, Issue 5, March, 1985

Federal Restrictions on the Free Flow of Academic Information and Ideas, November, 1984, Harvard University

February 20, 1985, Memorandum from Department of Energy regarding New and Innovative Concepts for the Strategic Defense Initiative Program

March 28, 1985, letter from Berkeley campus to Department of Army regarding Release of Information clause and Chapter 9 of AR360-5

May 7, 1985, Memorandum from Association of American Universities regarding draft National Policy on the Transfer of Scientific and Technical Information

New York Times Article, "Campuses Fear Federal Control Over Research," December 13, 1984

Optical Engineering Reports Article, "Export Control Sessions at SPIE Symposia," June, 1985

University of California, Berkeley Campus, Policy Guidelines Concerning

Openness of the Research Environment and Freedom to Publish, May 10, 1985

Report of the Committee for the Study of Intellectual Property Issues, Berkeley Campus

Interim Operational Policies and Procedures for the Berkeley Campus Concerning Tangible Research Products Subject to Copyright, May 16, 1983

University Copyright Handbook, Pennsylvania State University, 1982

Copies of the above documents are being distributed to Contracts and Grants

Offices only. Contact Barbara Yoder for additional copies of the Enclosures.

Refer: Barbara Yoder

ATSS: 8-642-2886

(415) 642-2886

Subject Index: 01, 11, 20

Organization Index: U-115, F-150, F-175

David F. Mears

University Contracts and Grants Coordinator

Enclosures (distributed to Contracts and Grants Officers only)


Laboratory Contracts and Grants Officers

Director Cole

COGR Meeting Report, October 1984


Appendix 4, Page 2

01 OCT 1984





SUBJECT: Publication of the Results of DoD Sponsored Fundamental Research

Reference DoD Directive 2040.2, "International Transfers of Technology, Goods, Services, and Munitions."

This memorandum defines "fundamental research" in the context of the Administration's recent draft national policy on. the transfer of scientific and technical information (attachment 1).

The statement requires that, consistent with existing statutes, no controls other than classification may be imposed on fundamental 'research and its results when performed under a federally

supported contract. I would like the policy to be applied consistently to all DoD sponsored research. The policy, however, does not and cannot remove the necessity for sound judgment by all concerned.

Experience shows that attempts to define the terms "basic", "applied", or "fundamental" by elaborating the concept do not necessarily sharpen distinctions for decision making. Simple unambiguous characteristics, though not perfect, are more useful discriminants. For DoD purposes the decision whether a particular research activity is or is not fundamental will be determined primarily by considering the following easily identified characteristics: (1) performer (for example, university, industry, in-house), (2) budget category (for example, 6.1, 6.2), sponsoring DoD entity, (4) special contractual provisions.

The new policy addresses contracted research, which in the context of DoD is extended to include grants. Unclassified contract research supported by 6.1 funding shall be considered "fundamental." Similarly, unclassified research performed on campus at a university and supported by 6.2 funding shall with rare exceptions be considered "fundamental;" where there is a high likelihood of disclosing performance characteristics of military systems, or of manufacturing technologies unique and critical to defense, more restrictive contractual clauses may be agreed to by the contracting parties prior to effecting the contract. Contract research performed in off-campus university facilities that is not 6.1 funded generally will not be considered "fundamental."

Furthermore, in order to ensure reasonably consistent treatment for the publication of the results of fundamental research performed in DoD laboratories and components, the guidance provided in Attachment 2 will be followed closely.

In no case may further interpretation of this policy result in more restrictive conditions. In case of disagreements about the nature of research content or the applicability of any of the above policies, differences should be resolved by the Service or Agency providing funding support, and if this fails to result in a resolution, individual cases or questions may be referred to Subpanel B -"Research and Development", as provided for in the referenced directive.


COGR Meeting Report, October 1984


Appendix 4, Page 4


(Draft of June 15, 1984)


This directive establishes national policy for controlling the flow of science and technology information produced in fundamental research at colleges, universities, and laboratories under contract to U.S. government agencies.


The acquisition of advanced technology from the United States by Eastern Bloc nations for the purpose of enhancing their military capabilities poses a significant threat to our national security. Intelligence studies indicate a small but significant target of the Eastern Bloc intelligence gathering effort is science and engineering research performed at universities and federal laboratories. At the same time, our leadership position in science and technology is an essential element in our economic and physical security. The strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.

In 1982, the Department of Defense and National Science Foundation sponsored a National Academy of Sciences study of the need for controls on scientific information. This study was chaired by Dr. Dale Corson, President Emeritus of Cornell University. It concluded that, while there has been a significant transfer of U.S. technology to the Soviet Union, the transfer has occurred through many routes with universities and open scientific communication of fundamental research being a minor contributor. Yet as the emerging government-university-industry partnership in research activities continues to grow, a more significant problem may Well develop.


It is the policy of this administration that the mechanism for control of fundamental research in science and engineering at colleges, universities and laboratories under contract to U.S. Government Agencies is classification. Consistency of this policy with applicable U.S. Statutes must be maintained. Each federal government agency is responsible for: a) determining whether

classification is appropriate prior to the award of a research

grant or contract and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants or contracts for potential classification. No restrictions may be placed upon the conduct or reporting of fundamental research that has not received national security classification.


Reference DoDD 5230.9, Clearance of DoD Information for Public Release, April 2, 1982.

Department of Defense and other Federal Government laboratories perform much of the R& D sponsored by DoD. The Department has developed procedures for reviewing DoD-generated documents for publication (referenced above), to determine whether they are technologically sound, are consistent with DoD policy, or contain classified information, or critical military technology. These procedures are designed to protect our technological investments from foreign exploitation without impeding our own technological progress.

In view of the new national policy on the publication of unclassified contracted fundamental research, and its implementation in the aforegoing memo, this attachment provides guidelines to ensure consistent and uniform treatment for DoD sponsored fundamental research performed in DoD and other Government laboratories and components.

R& D papers that are closely related to military operations and systems deserve close scrutiny before release. However, application of extensive review procedures to the results of fundamental or generic research slows progress and thereby reduces the effectiveness of research investments.

Research performed under budget category 6.1 shall be considered to be fundamental research not containing any critical military technology except in rare and exceptional cases, as for example where there is a high likelihood of disclosing performance characteristics of military systems, or of manufacturing technologies unique and critical to defense. When a request for approval to publish the results of fundamental research is received, it shall be reviewed and a decision made in accordance with DoDD 5230.9 (referenced above), by the originating DoD laboratory or component within 20 working days of receipt of request to publish. In exceptional cases a final decision may be requested from the Office of the Assistant Secretary of Defense (Public Affairs) for resolution. In the latter case, the originating organization must include a proposed action to OASD(PA), and OASD(PA) shall confirm or overrule the proposed action within 5 working days of receipt. The total time for resolution shall be no more than 30 working days.

Consistent with DoDD 5230.9, all research papers arising out of non-critical military technologies in budget category 6.2 shall be treated in the same way as 6.1 research. It is imperative that laboratory directors and other DoD component heads exercise their responsibility to make decisions on all non-critical military technologies, and pass on for headquarters review only those publications dealing with truly critical technologies. "Critical" implies special or unusual and must be applied selectively; other useful (but not critical) military technologies will be processed more simply and more speedily at the local level. It is anticipated that in the case of generic 6.2 research (i.e., research not related to specific military systems), all decisions on publications, with only few exceptions, will be made at the laboratory director or equivalent level. All such .decisions should be documented in a simple, uniform and consistent manner.

Commanding officers and technical directors should make sure that they are fully cognizant of current DoD directives and instructions, in particular those dealing with distribution markings and dissemination controls, to enable them to exercise prudent judgment. If you have any questions or concerns, please direct them to the International Technology Transfer Subpanel B on Research and Development (see DoD Directive 2040.2).

May 16, 1983


Re: Interim Operational Policies and Procedures for the Berkeley Campus Concerning Tangible Research Products Subject to Copyright

The Interim Guidelines on University-Industry Relations* recommend Systemwide. policy development concerning tangible research products which have commercial value. Licensing of such products is a means both to obtain support for research that otherwise might not be available and to encourage technology transfer. "Tangible research products" generally include such things as biological materials, chemical compounds, computer software and "know how" in the form of mechanical specifications drawing and schematics.

We will shortly appoint an ad hoc faculty committee to consider a wide range of issues concerning intellectual property including patents, copyrights, licensing, and royalty distribution. Consultation with appropriate Academic Senate committees will follow pending adoption of final recommendations for campus and Systemwide consideration. In the meantime, if you have any thoughts or comments on this matter, please let us know.

The attachment hereto prescribes interim policy and procedural guidance for the Berkeley campus, on which we have had consultations with the Academic Senate Committee on Research.


Chang-Lin Tien

Faculty Assistant to The Vice Chancellor

*Distributed to Deans, Directors, Department Chairs and Administrative Officers by memo dated November 30, 1982, from Sponsored Projects Office Manager Nancy J. Caputo.



Policy development and administrative cognizance for all matters --related to intellectual property including patents and copyrights

is a responsibility of the Faculty Assistant for Research.

The Campus Business Services Manager is responsible for copyright registration and licensing arrangements and the administration of existing licenses under the guidance and coordination of the Faculty Assistant for Research.


The Manager, Sponsored Projects Office, is responsible for negotiating terms and conditions of research grants and contracts which maximize the opportunities for commercial licensing by the University.

The obtaining of required prior approvals from extramural sponsors before copyright licensing arrangements are consummated is also a responsibility of the Sponsored Projects Office. Such approvals are solicited as requested by the Business Services Manager.

d. Unit heads are responsible for informing faculty, students and staff concerning this interim policy and procedures.

e. University personnel developing tangible research products

likely to have commercial value should consult With the Campus Business Services Manager at the earliest opportunity and in any case prior to distribution outside the University.

Copyright Policy

Tangible research products emanating from the efforts of personnel associated with the Berkeley campus and not subject to patenting should be copyrighted to the extent feasible. See Appendix 1 for current (1975) University policy on copyrights.

3. Licensing Policy

Commercial licenses must contain explicit language guaranteeing that the University can freely use and disseminate the subject of the license for scientific and educational purposes.

Licensing arrangements must not contain expressed or implied language or understandings which in any way would impede the free and open exchange of information and collaboration by and between faculty and students or colleagues at other education or research organizations. There must be no bar to scholarly publication. Side agreements which restrict publication are not sanctioned.

Disposition of Fees and Royalty Income

License issue fee income and royalty income, the distribution of which is not prescribed by the current. Systemwide Copyright policy, shall be held in campus income earning accounts under the University's Short Term Investment Pool.

Distributions with interest will be made according to the campus-wide distribution plan as finally adopted. Limited distributions to authors may be made in the interim.

Chang-Lin Tien Faculty Assistant to

The Vice Chancellor May 16, 1983


Systemwide Administration

August 10, 1975


Purpose and Scope

This statement sets forth the policy of the University governing the administration of copyright matters. It supersedes the University Copyright Regulation issued on November 5, 1962, and it is effective immediately.


For the purposes of this policy, the following definitions shall apply:

Assignment of Rights: An assignment of rights is a transfer of rights under. copyright by the owner.

Author: An author is one or more individuals, singly or as a group, who produces copyrightable material.

Book: The word "book" includes such published works as fiction, nonfiction, poems, compilations, composite works, directories, catalogues, annual publications, information in tabular form, and similar text matter, with or without illustrations, as books, either bound or in loose-leaf form, pamphlets, leaflets, cards, single pages, or the like.

Contractual Agreement: A contractual agreement is any enforceable agreement between the University and other individuals or parties.

Copyright: A copyright is the right of the owners not to have material resulting from creative or intellectual labor copied or commercially used without their consent.

Fair Use: Fair use is a use of copyrighted material which is permitted by law even though no express authorization is granted by the copyright owner.


University of California


Final Report of Committee for the Study of Intellectual Property

Issues Related to Software

April 1, 1985


This Committee was appointed by Vice Chancellor Tien on January 9, 1984, with the charge given in Appendix A. It met regularly during the Spring Semester 1984 for discussion among Committee members and invited guests, and for study of the policies of other institutions. A draft report was prepared and circulated to Deans, Directors, Department Chairs and Administrative Officers during the Fall Semester, 1984. Most comments received were favorable to the recommendations of the draft report, but there were also substantive comments and suggestions. All of these were carefully considered, resulting in this final report. Before giving our recommendations, we make some observations that were considered important:


It is important to remember that the primary purpose of a university' is the creation and dissemination of knowledge. Development, distribution, and running of software is now one of the important mechanisms for exchanging knowledge. All this takes money, and licensing of software, as with patents, is a legitimate way of obtaining some of the resources for the primary goal, but it must always be done to aid--not impede--that goal.

The software scene is changing rapidly. The changes in computer hardware, the changes in mechanisms for distribution, and the increasing recognition of the importance of software all contribute to this change. One indication is that of approximately 30 universities surveyed with respect to their policies, 17 replied that they were studying the matter. It follows that any presently adopted policy should be considered provisional and reviewed periodically for appropriateness.

The software issue is more complicated than that related to some other types of intellectual property for several reasons. Software may be protected either by copyright or as a trade secret, and in some cases by patent. Software development varies from small individual projects using fewer university resources than in the preparation of a book, to large group projects using great amounts of computer time. In the latter cases there are often faculty researchers, students, and staff working together so that any classification of their individual "rights" to the software product becomes difficult if not impossible.


1. Desirability of Wide Distribution of Software

Many groups of the campus now have the policy of distributing their software to anyone interested at cost. We see this as the ideal way of accomplishing the primary goal of a university--the wide dissemination of information, just as is done with description of apparatus and other relevant details of the research. It also turns out for many groups to be a case of enlightened self interest in that the good will created may bring more financial returns to the University than could be obtained through licensing with profit in mind. Examples are in the recent generous industrial gifts traceable to the wide distribution of SPICE and Berkeley UNIX. The campus should thus support groups adopting this policy (see Paragraph 5). In order that there not be misunderstanding, groups wit. h this policy should have a memorandum of agreement with faculty, students, and employees of such groups, assigning to the University any individual rights for work directly related to that group. This is to be done with the understanding that such work will be copyrighted by the University and distributed on a non-profit basis.

2. Work Done for Hire

Work done "for hire"/1 is the property of the University, as with other copyrighted works. (See IIIB of University Copyright Policy.) Although there are clear-cut cases of software produced for specific, assigned purposes, there are intermediate cases where a programmer (faculty, student, or staff) develops software only marginally related to his assignment. Thus judgment is required concerning these individual cases, as with other works presently governed by this policy.

1/"Work for hire" is a legal term used to denote work prepared by an employee within the scope of his or her employment. It includes works prepared by employees in satisfaction of grant and contracts between the University and outside agencies. The employer by law is the "author" and owner of the works for copyright purposes.

Conditions for Individual Ownership

Individuals and groups other than those in categories covered by 1 and 2 may retain ownership and register the copyright in their names. This is much as with books and works of art (see IIIA of University Copyright Policy), but with an exception. In view of the differences cited in the Introduction between software and other examples of intellectual property, it is recommended that, if software is copyrighted and licensed by either faculty, staff, or students for the purposes of profit-making distribution, then the university resources used in developing that part of the software to be used for individual profit be paid for by the authors holding the copyright. In these cases, the University should retain "shop rights"--i.e. the .right to use the software internally without paying royalties- Authors with ownership of a program may, with the approval of the Director of the Software Center (see Paragraph 5), distribute through the Software Center, with division of royalties as described in Paragraph 6.

Committee to Decide Disputed Issues

It is recommended that a committee be appointed to decide any disagreements between authors and administration concerning which of the three above-described categories apply to a particular software development. The committee would contain appropriate Senate, as well as administrative and legal representation. The head of the Software Center (see Paragraph 5) would serve as a non-voting member.

Software Center

The campus administration should create a Software Center to serve as the administrative and legal focal point for administering the software policy and providing consultation and other related services to authors and campus units hosting software development.

The Software Center should be viewed as an organization in direct support of campus research and, as such, the director of the Center should have direct reporting lines to the Vice Chancellor-Research. The Software Center should not only be concerned with licensing out of University developed software, but should have parallel responsibility for reviewing licenses tendered to the University when software is acquired. An example would be the AT& T UNIX licenses to the University as well as the licensing out of the Berkeley Software

Distribution (e-g., 2.1 BSD, 4-2 BSD, etc.).

The Software Center should be as cost effective as possible but be organized and operated in a manner consistent with its overall mission of service to campus authors, departments and the University in general. It is unlikely that the Software Center can be fully supportable from license income in view of the need to share such income with authors and campus departments and the fact that income may fluctuate from year to year. Thus, in establishing the Center, the campus should be prepared to substantially support its cost, though it is hoped that over time this support may be lessened as the level of income from University-developed software increases. Justification for University support can be found in the fact that many responsibilities will be non revenue-producing. Use of the Center for distribution of software should be optional so long as the Director is informed of such distribution, and all licensing matters are conducted through the Center.

Division of License Income

The formula for division of income should encourage campus-wide adherence to the software policy. The recommended division of license income is one-third to authors and two-thirds to the University, calculated on gross receipts. The University share should be further subdivided as between the Software Center and the home unit(s) of the author(s) after out-of-pocket costs (exclusive of salaries) of the Software Center and/or home unit, are funded. The recommended net split of the University share is twenty-five percent to the Software Center and seventy-five percent to the home unit(s). The allocations to home units should be considered as a fully discretionary resource.

The Committee recently learned of a policy at the California Institute of Technology by which an. author has the option of having a larger share returned to the home unit provided he or she accepts a smaller personal share. The Committee considered this an original idea, and believes the final policy might provide for such an option.

Distribution of license income when software may be patented/2 should be in accordance with the royalty distribution formula under the University's patent policy.

2/Under certain circumstances software may be patentable.

7. Student Rights

Student-developed software produced in the course of University employment under an academic or staff appointment title will be treated as any software developed by a University employee.

Rights to the software developed by a student in conjunction with University

coursework, and not under an employment relationship, should be fully vested in the student. In the case of joint authorship as between the instructor-in-charge and the student(s), all rights should also be vested solely in the authors, except that the University should retain a shop right as discussed in Paragraph 3.

8. Trade Secrets

Protection of software through the trade secrets route seems to us antithetical to the goals and open character of a university, so we recommend that this mechanism not be used unless required by contracts or other external agreements.

9. Terms and Conditions of Research Agreements

The University should be especially sensitive to the danger of accepting grants and contracts which contain terms and conditions that are fundamentally inconsistent with the letter and/or intent of campus software policies. In general, restrictions and/or conditions on the dissemination of software should be avoided. Normally, the University should insist on the retention of all rights to software except granting to the sponsor a royalty-free license for internal use.

10. Lawrence Berkeley Laboratory - Campus Coordinated Policies

The extensive interaction between the campus and LBL strongly suggests that policies pertaining to software be fully compatible. Approximately 600 campus graduate students have LBL research assistantships, while several hundred faculty have LBL affiliations. The need for compatible and synergistic policies and procedures is self evident.


Professor John Whinnery, Chair Electrical Engineering & Computer Science

Dr. Raymond Neff

Assistant Vice Chancellor

Information Systems and Technology

Professor Harry Bingham

Department of Physics

Professor Leo Breiman

Department of Statistics

Professor Arthur Rosenfeld

Department of Physics

Professor Percy Tannenbaum

School of Public Policy

Professor Domenico Ferrari

Electrical Engineering

Computer Sciences

Dr. John Thomas

Chevron Research Corporation

Professor John Fleming

School of Law

Mr. Joseph Yeaton

Computing Affairs

August C. Manza, Committee Secretary

Staff Assistant-Research

Office of the Vice Chancellor-Research

Systemwide Administration' August 1, 1975


I. Purpose and Scope

This statement sets forth the policy of the University governing the administration of copyright matters. It supersedes the University Copyright Regulation issued on November 5, 1962, and it is effective immediately.

II. Definitions

For the purposes of this policy, the following definitions shall apply:

Assignment of Rights:

An assignment of rights is a transfer of rights under copyright by the owner.


An author is one or more individuals, singly or as a group who produces copyrightable material.


The word "book" includes such published works as fiction, nonfiction, poems, compilations, composite works, directories, catalogues. annual publications. information in tabular form, and similar text matter. with or without illustrations, as books, either bound or in loose-leaf form, pamphlets, leaflets, cards, single pages, or the like.



A contractual agreement is any enforceable agreement between the University and other individuals or parties.


A copyright is the right of the owners not to have material resulting from creative or intellectual labor copied or commercially used without their consent.

Fair Use:

Fair use is a use of copyrighted material which is permitted by law even though no express authorization is granted by the copyright owner.


An infringement occurs when any of the rights granted by law to the copyright owner are exercised without permission, for example, when a material portion of a copyrighted work is copied or is commercially exploited without such permission.


A license creates a contractual relationship in which the owner under a copyright grants permission for use of the copyrighted material.


The term "material" refers to all copyrightable works. including but not limited to, writings, lectures, musical or dramatic compositions, sound recordings, films, videotapes and other pictorial reproductions, computer programs, listings. flow charts, codes, instructions, and software.


The term 'owner' refers to the party who owns or controls rights to copyrightable material, whether under copyright or otherwise, and who has the right to sell, using, distribute, or license the use of such material.

Public Domain:

Material is said to be in the public domain if it is not protected by common law or statutory copyright and, therefore, is available for copying without infringement.


Publication occurs when by consent of the copyright owner the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public or when an authorized offer is made to dispose of the work in any such manner, even .if a sale or other disposition does not, in fact, occur.

University Funds:

University funds are those funds, regardless of the source, that are administered under the control. responsibility, or authority of the University.





The 1975 Systemwide Copyright policy does not adequately address the licensing of tangible research products, most notably computer Software.

The Berkeley campus is producing licensable software, which in some cases, has the potential for producing substantial income over a relatively short time frame.

The President is expected to appoint an Intellectual Property Advisory Council which will consider the recommendations concerning intellectual property contained in the report of the Committee on Rights to Intellectual Property (CRIP) and in the Interim Guidelines on University-Industry Relations.

While it is expected that a revised Systemwide Copyright Policy and related income distribution plan will ultimately be adopted in line with the above cited reports, it is in the best interest of the campus to study the relevant issues and produce an analysis and recommendations which protect and advance the interests of the Berkeley faculty and Berkeley campus.


The Committee for the Study of Intellectual Property Issues should produce a set of recommendations designed to stimulate the creative endeavors of Berkeley faculty and staff within a framework of fairness and equity to authors, the University and the public. The free exchange of ideas, the dissemination of research results and scholarly publication must not be impeded.

The overall policy framework for Copyrights must satisfy conflict of interest requirements.


Review available material on copyright policy and income distribution and initiate discussion with knowledgeable colleagues at other institutions (Stanford, Caltech, etc.) Solicit input from major Berkeley units and concerned faculty.

Propose revisions to the Systemwide Copyright Policy and the Justification therefore. Consider the nature and degree of discretion which Should be delegated to the Chancellors.

Propose a scheme(s) for royalty distribution which is fair and equitable and which does not have the effect of distorting the free and open exchange of information among faculty, students and colleagues, within and without the University.

Advise as to the proper role of the Systemwide Patent, Trademark, and Copyright Office and the kind of campus administrative support mechanisms which would best serve the interests of the Berkeley campus.

Provide such other insight and recommendations as the Committee feels appropriate.

Completion Date

The Committee's Report should be submitted to the Vice Chancellor-Research the end of the Spring semester.