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):
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.
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.
The Teacher Exception
HOWEVER, prior to the 1976 Amendments to US copyright law, there was an understood “teacher exception”, which said that teachers owned the copyrights to the educational material they created. According to Georgia L. Holmes, Professor of Business Law and Business Administration, Minnesota State University:
Prior to the 1976 Amendments to U.S. copyright law, teachers owned their teaching materials and scholarly works pursuant to an exception to the “work for hire” doctrine under the older 1909 Copyright Act… Anyone involved in higher education knows that the nature of the work performed by a professor at all but proprietary institutions is more akin to that of an independent contractor than it is to that of a servant under the master- servant analysis of agency law. Copyright law has historically recognized that fact. The teacher exception to the “work for hire” doctrine was created by case law under the 1909 act.
Professor Holmes went on to say that when US copyright law was amended in 1976, the new wording was not clear on the issue:
However, because the 1976 copyright statute did not incorporate language recognizing it, the “teacher exception” was subsumed by a work-for-hire doctrine that Congress took from the U.S. Supreme Court‟s definition in the case of Community for Creative Non-Violence v. Reid.
In “Copyright and the Educational Process: The Right of Teacher Inception”, Russ VerSteeg, Professor of Law at New England Law, noted that while IP ownership by teachers is still in dispute, the law would probably come down on the side of the teachers:
American courts have yet to decide the issue of whether teachers or schools own the copyrights to educational materials created by teachers. Recently, however, the Seventh Circuit Court of Appeals remarked that American copyright law, in the past, has recognized a "teacher exception" to the "work made for hire" doctrine for copyrightable works authored by teachers. The court further stated that, if forced to decide the issue, it probably would hold that the "teacher exception" had survived the 1976 revisions to the copyright statute. Consequently, persuasive dicta from a federal circuit court now supports the argument that teachers, not schools, own the copyrights to materials that teachers create.
Are Students Better or Worse Off?
More important, I think, than whether or not teachers are allowed or should be allowed to keep the money they earn from selling their lesson plans is the question of whether the students are ultimately helped or hurt by this practice. Let’s think it through.
From the Sellers’ Perspective
Teachers compile their lesson plans into work products that are offered for sale.
• Which teachers are most likely to do this?
It’s probably safe to say that no one would bother to take the time to compile their lesson plans and post them online for sale unless they thought they had some chance of (1) selling their work products and (2) for a reasonable fee. Given the vast availability of lesson plans offered for free (I Googled “free lesson plans for teachers” and got 15,400,000 hits), I think it’s safe to say that only those lesson plans made available for sale that are better those offered for free can hope to generate (significant) revenues. So we have the teachers with the better lesson plans are the ones most likely to offer their plans for sale.
• Would they make the information available to others if they didn’t have the opportunity of earning money from selling their work products?
I was told by an educator that grant money is/was available to teachers to fund their efforts to communicate their ideas to the teaching community. To the extent that teachers can get grants to fund their efforts to share their ideas with others, I’m sure they would probably take the grants in lieu of posting their lesson plans online for sale, since grants are definitely more prestigious, and probably pay better. However, given the ongoing cuts in funds for education, I would guess that any such grant money is drying up fast.
Giving the vast availability of free lesson plans available, it’s clear that there is a very large community of educators who are already making their lesson plans available for free. Would a teacher with a good lesson plan who wanted to earn money through online sales otherwise go through the process of writing up their plans and offering them for free if they couldn’t sell them? Perhaps. Or perhaps not.
• Do the teachers who compile their lesson plans get anything out of this process (other than the fees they collect from sales)?
Anyone who has ever prepared a relatively formal, written document that purports to communicate an idea to someone else (texts, tweets, and most emails don’t qualify) knows that the very process of creating the written document is educational to the preparer. Having to reduce ideas to words in a manner meant to coherently communicate the ideas to someone else forces the communicator to think through his ideas much more rigorously than he would if he were to simply to vocalize his thoughts. As such, teachers who prepare their lesson plans for sale will often generate insights about the subject that they did not have before they formalized the lesson plan. And of course, if teachers have more insight about the topics they teach, they will invariably teach them better to their students.
From the Buyers’ Perspective
Teachers buy the lesson plans and incorporate them into their own lessons.
• Which teachers are most likely to purchase lesson plans?
Since teachers can always resort to creating their own lesson plans, or they can avail themselves of the lesson plans offered for free, it follows that only those teachers who really care about getting good information and improving the quality of their teaching would pay money for lesson plans.
• Which lesson plans are most likely to be purchased?
As indicated above, given the vast availability of lesson plans offered for free, it should end up being the better lesson plans that will be purchased.
• How does the purchase of lesson plans affect the buying teachers’ ability to teach his or her students?
As long as the lesson plans the buyers are using are not incorrect, having more information at their disposal can only help the buying teachers ability to teach their students. If we assume that the lesson plans the buyers are buying are better than the average plans, then the buyers will have better than average information at their disposal.
• What would the teachers who purchase lesson plans do if they couldn’t buy them online?
Suppose the sellers were not allowed to offer their lesson plans for sale. In this case, the teachers who would otherwise buy lesson plans would either use the plans that are offered for free or create lesson plans on their own.
Suppose the potential buyers used the lesson plans that are available for free. As indicated above, the lesson plans that would have been available for sale would have had to have been better than the lesson plans available for free; otherwise no one would have bought them. So if potential sellers were not allowed to offer their lesson plans for sale, and the potential buyers were left to use the lesson plans available for free, then they would probably end up using plans that were not as good as those they would have bought had the potential sellers been able to sell their lesson plans.
Suppose, instead, that without the availability of lesson plans for sale, that the potential buyers just created their own plans. Without the availability of the (above average) purchased lesson plans, the quality of the lesson plans the potential buyers would have come up with on their own would almost invariably have been lower.
So what are we left with?
When teachers are allowed to sell lesson plans online, the lesson plans made available for sale will probably be better than the average plans offered online for free, the process of preparing the lesson plans for sale will generally force the sellers to learn more about their lessons, and if they are not allowed to sell their plans online, the information may or may not be made available to the teaching community without the backing of grants.
The teachers who buy the lesson plans will probably be those teachers who really care about improving their teaching, they will probably end up buying better than average lesson plans, thereby becoming better prepared to teach their students.
It sounds to me like everybody wins.
But what about the idea mentioned in the article, that “the online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans”?
The “free exchange of ideas” often associated with educators is a bit of a misnomer, because much of the “free exchange” has traditionally been supported through salaries and grants to teachers.
But what happens when the salaries are cut and the grants dry up, which is exactly what is currently happening in the schools? Teachers who wish to continue to contribute must find other ways to support their “free exchange” activities, either by doing it on their own dime or getting reimbursed through online sales.
Alternatively, reimbursements for online sales of lesson plans may be considered a form of merit-based pay, in which teachers who work harder (i.e., come up with better lesson plans and take the time to formally prepare them) are rewarded for their efforts.
If teachers are not allowed to keep the money they earn from online sales of lesson plans, and if salaries and grants continue on their downward spirals, then many of the better teachers will end up devoting their time and efforts to other allowable activities that will generate money for them, either within the field of education, such as becoming paid tutors, or outside the field altogether. Is this really preferable to having them sell lesson plans online, which ultimately ends up creating better teachers and benefitting the students?