Faculty/Staff/Student Investigators

The Software Process : FAQ

Who owns the copyright to my software?
If you are subject to the University of Colorado’s Intellectual Property Policy, then your software copyright is owned by the Regents of the University of Colorado. When you put the copyright notice on the source code, it should say “© <Year> Regents of the University of Colorado” To find out if you are subject to the University of Colorado’s Intellectual Property Policy, please see: https://www.cusys.edu/policies/Academic/IP_discoveries.html

Is software protected by copyright even if there is no ©?
Yes. Copyright is automatic as soon as anything is written. If you find a piece of software that does not include a copyright statement, it is still most likely to be protected by copyright and it cannot be used in a commercial product without the author’s permission.

If software does not include a ©, isn’t it in the public domain?
No. There is a government process that must be followed to actually put written material (including software) into the public domain. A more efficient way of making software available to anyone for anything is to include a copyright statement and a very permissive open source license such as the MIT license.

Is it true that everything we do at a public university or funded by a federal grant is automatically in the public domain?
This is not true. In fact, as a faculty or staff member, the software you write at CU is automatically copyrighted, and the copyright is held by the Regents of the University of Colorado. You are under no obligation by the federal or state government to place your technology into the public domain.

What is wrong with just making my software available on my website or on SourceForge without any copyright statement or license agreement?
There are several reasons.

First, people who work with your software will not know what they are allowed to do with it. Even if software does not include a copyright statement, it is still protected by copyright. Some people who would like to use it may decide not to because they are not sure that they have permission to do so. If your goal is to let everyone use it, it is much better to think about how you want it to be used, and set up permission statements that clarify the issue for everyone.

Second, the University is better protected from liability. A statement clarifying that CU provides no warranty on the software will prevent any assertion that the software does not perform a certain function that the University claimed it would.

Do I need to put any restrictions on the use of my software?
Not necessarily. Academic collaborators should be allowed to use and modify software to develop and study derivative software products. However, you may want collaborators to provide attribution in their software releases and publications. You may also want to review modifications for purposes of quality control. You may want to reserve the right to the name of your software, thus protecting the reputation of your version through its name.

Also, creation of derivative products will bring up questions that you should consider. For example, should these derivative software products be sold? If so, by whom? TTO can customize an academic source code license to clarify all of the issues involved with copyright use and ownership.

If I release my software, will I get bombarded with calls for technical support?
There are several ways to reduce support inquiries. One way is to release the software as source code. This allows very savvy users to look at the code themselves and make any adjustments they need to run their experiments. Another way is to develop good documentation and post it on your website with the software. This can be as simple as turning all of the questions you get into a FAQ section. A third way is to make it clear that users must send their modifications back to you for re-distribution so that you can have some control over the quality.

If I disclose my software to the CU Technology Transfer Office, will they take control of it?
Research groups often have their own goals for distribution of the software. TTO is seeking to participate in these discussions at the earliest stage so that it can provide the tools needed to establish goals and disseminate the technology. We will let the research group have control over distribution of the software, unless it presents a legal risk to the university or a potential conflict of interest.

Can I just release my software under a free license like the GNU GPL or an open source license?
If you are committed to the free software movement, the University of Colorado does not have a problem with your releasing software under the GPL. However, we would like you to think about your goals for distribution of the software before choosing the GPL because the license may not actually match with your goals. Please see the bulletin on Early Release Software for the pro’s and con’s of the GPL.

It is also important to account for all code components that went into the software before releasing it with a free license. The code could include components with incompatible license restrictions. The best practice is to check the license restrictions on components before they are added to the software. Please see the bulletin on Open Source Software for more information.

Finally, there may be some conflict of interest issues involved. For example, if you “release” open source software, and then proceed to charge money for consulting on the software, that action creates a potential conflict of interest. This consequence is particularly true if the software is not useable by very many people or you don’t make it readily accessible on your website. If you feel your release of open source software may be a conflict of interest, the proper procedure is to disclose your plans to your department chair before moving forward.

The TTO provides instruction for releasing software under an open source license and advice on the license that meets the goals of the research group.

How is copyrighted software different from patented technology?
A patent protects an idea and a copyright protects an expression of an idea. A patent can be a more powerful form of protection because people could not legally design a software product that would infringe the claims of the patent. A copyright would be infringed if someone were to copy your source code without permission, use it to create derivative works, or use it as a reference when writing their own source code. However, it would be legal for them to rewrite the source code to perform the same function if they do not use your source code as a reference.

Software may be worth very little until long after the one-year U.S. patent bar date has passed, making it unlikely that anyone would have invested thousands of dollars in patent protection. For this reason, copyright protection is often more appropriate than filing a patent.

Does it ever make sense to patent software?
Yes. For example, if you have an algorithm that would take very little effort to implement, it may be worthwhile to patent. This depends on your goals for the technology. It definitely makes sense to file a patent if you think your technology may be the basis for a startup company.

How can software be licensed commercially?
Non-exclusive licensing is often the best strategy for widespread distribution of software. For more than a handful of licensees, it is most efficient to design a one-size-fits-all license agreement and price that all licensees can accept. The TTO can help determine the right price and agreement to streamline the widespread use of new software.

My software is the product of collaboration between researchers at many institutions. Now some of us would like to release the software. Do we have the right to do this?
Software projects often include work from contributors who are not CU employees and are not subject to the CU intellectual property policy. This includes undergraduates who are not being paid to write the code. . In order to release the software under an open source or academic free license, you should get informal permission via email from all other authors to do so. In order to release the software commercially, the TTO negotiates agreements to decide which party has commercial control over distribution of the software. This routine procedure is much easier to accomplish at the beginning of the project than at the end, so it is preferable to notify us early on.

Is it true that anything we do at CU is open to the public because we are a public university? Would any citizen of the state of Colorado legally be entitled to access all of our source code, project documents, and even all of our private e-mail that we used a CU server to host?
As a state agency, documents are generally open to the public under the Colorado Open Records Act, including private emails that go through the CU email system. Most of us are used to writing our email as if it might become public someday. However, there are several exceptions to the Act, including a research exception which allows the University to keep confidential the “specific details” of research projects. It is highly unlikely that anyone would make an Open Records Act request for your source code but if they did, the University would likely have a legitimate defense to keep it confidential.

When I publish my research in a conference proceedings or journal, is it then automatically in the public domain? If so, is it only the ideas as stated in the publication, or also all of the supporting source code, etc., that you reference in the publication?
No. Source code that you reference in publication is not automatically placed in the public domain. The source code is a separate expression from the article. The specific expression of the ideas that you published are also copyrighted. Generally that copyright is transferred to the publisher. However, the ideas themselves may be patentable. The publisher would not own the ideas themselves, only the expression. You would still have one year to file for a U.S. patent.

If I copyright my code with my name, can is it illegal for anyone else sell it?
No one else can legally sell and make money off of your copyrighted software. You can stop people from selling your code if you are willing to enforce your copyright in court. However, if the code was written by a University employee during the course of his/her work or part of University research, then the it is the University that holds such rights.

Suppose I have a contract to develop a software solution for the U.S. government. I have signed absolutely nothing that says who owns the source code, intellectual property, or anything else. When I'm finished, who owns the copyright for this work? Am I free to take that code and market it to someone else without breaking any laws? And could the government entity also take that code and market it to someone else?
Your “contract” with the government would likely detail who owns the code. If the agreement is with you personally, then it is possible that acceptance of the check for doing the work would be the equivalent to agreeing to the government’s terms. If you were acting as an employee of a company or an academic institution when you wrote the code, then would you probably wouldn’t sign something specifically because the contract would be signed by the institution. According to CU’s intellectual property policy, the University owns the copyright to your software solution if you were paid or received a tuition stipend through the University. However, there have been several cases where CU researchers have wanted to start a company based on their technology and we have worked out an agreement with them to license the technology to their startup. The royalty that goes back to the university is distributed to the developers, their labs, the department and the campus according to the policy for that campus.

If several people are working on a software project, is there anything to prevent some subset of them from marketing it and profiting from it without the others? Or do all those who participated in the original development effort have a right to demand royalties (or other compensation) whenever the software produces income anywhere?
In the context of the University, if all contributors are University employees, the “inventors” share of the royalties should be distributed roughly according to their levels of contribution. Some research groups have their own rules about how the inventors’ shares are distributed. However, if one person were to start a company to license the software from the University and commercialize it, they would own that company and could profit far more than the other software authors.

If the individuals were creating software independent of the University, the code would either be in separate modules, each written by an individual or the code would be jointly written, so that one person’s contribution would be indistinguishable from another’s. If there are separate modules, each individual could only sell the modules they wrote. If it is jointly written, then each individual would have to share royalties with the other party if they commercialize it (absent an agreement that states otherwise).

How can I best protect our rights in an original survey instrument or measurement scale?
Simply write “Copyright 2006 Regents of the University of Colorado” somewhere on each copy of the document and on your website. You should also think of a good name for the survey or scale and use the name consistently with a trademark notice (small TM, not an ®). You can also place conditions for use of the tool in a permission statement that is part of your copyright notice, for example:

Copyright 2006 Regents of the University of Colorado. All rights reserved. You have permission to copy and distribute unmodified copies of this tool for research purposes. If you include results from this tool in a publication, you must use the name “____________________TM” in your publication including the trademark notice, and provide attribution to the ___________________________________ research group at the University of Colorado.

The advantage of setting up this permission statement is that it builds the reputation of the lab. The tool could also become valuable after years of validation through academic publications. In the best case scenario, certification bodies will require its use by companies, and they would pay a small fee for the use of the copyright and trademark.