Who Owns the IP Created by Employees?

The Teacher Exception

Are Students Better or Worse Off?

A recent article in the NYT, “Selling Lessons Online Raises Cash and Questions” by Winnie Hu, describes the controversy surrounding the selling of lesson plans by teachers , who then either spend the proceeds on their students or on themselves:

[T]housands of teachers are cashing in on a commodity they used to give away, selling lesson plans online … The humble lesson plan has gained value as focus on testing and individualized instruction has increased. At the same time, the Internet has diminished the isolation of classroom teachers. Just about every imaginable lesson for preschool through college is now up for sale — on individual teachers’ blogs as well as commercial sites where buyers can review and grade the material.

…While some of this extra money is going to buy books and classroom supplies in a time of tight budgets, the new teacher-entrepreneurs are also spending it on dinners out, mortgage payments, credit card bills, vacation travel and even home renovation, leading some school officials to raise questions over who owns material developed for public school classrooms. “To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds”…

Who Owns the IP Created by Employees?

When I started writing this blog entry, I figured I’d whiz through the discussion on whether or not teachers are entitled by law to keep the proceeds earned from selling their lesson plans. However, much to my own surprise (and edification), it turns out that it’s not so easy.

The law is pretty clear that intellectual property created by employees “in the course of their employment” is owned by the employers, and not the employees. This would suggest that in the situation described in the article, it is the schools, and not the teachers, who own the teachers’ lesson plans. From “Intellectual Property Works created in the course of employment - a brief guide” (April 2007):

Ownership

The general position is that intellectual property rights created by employees in the course of employment will be owned by the employer unless there is an agreement in place to the contrary.

There are express statutory provisions:

* Section 11 (2) of the Copyright, Designs, and Patents Act (CDPA) 1988 and
* Section 39 of the Patents Act 1977

dealing with ownership of employee works. Under these provisions, employers essentially gain ownership of intellectual property rights in respect of any works created by an employee which he/she

* was required to produce under the terms of their employment contract or
* could reasonably be expected to produce under the terms of that contract.

…Even if the work is created by the employee in their own time and using their own resources, the employee will not necessarily be able to claim any rights in that work, if the employer shows that the nature of the work created was that which could be reasonably contemplated as part of the employee’s duties.

Financial benefits

Where an employee creates a copyright work in the course of their employment, they have no statutory right to share in the financial success of their work unless they have entered into a separate agreement with their employer to that effect.