Article by Grace Lee
This article originally appeared in the May/June 2015 Net Assets magazine.
I have received many questions lately from NBOA members concerning who owns the rights to curriculum and other work developed by school employees. What happens when a teacher wants to take a program she or he developed to use at a competing school, or as a private tutor or consultant? Many schools are struggling with maintaining ownership of the unique offerings that set them apart from competitors, especially with the proliferation of off-the-shelf materials such as “MOOCs” available online. In order to help schools understand their rights and create clear guidelines in this area, I reached out to Zick Rubin, an intellectual property expert with education experience.
Grace Lee: Who owns the curriculum when a teacher has developed it in the course of his or her work, for use at the school?
Zick Rubin: Under copyright law, any work developed by an employee “within the scope of his or her employment” is owned by the school. In legal terms, such a work—which could include a course outline, handouts, tests and other materials—is a “work made for hire.” Unless the school and the teacher agree on a different rule, the school owns such curriculum material and can continue to use it even if the teacher no longer works there. And the teacher cannot sell it or use it elsewhere without the school’s consent. This rule may come as a surprise to some teachers.
Here’s an example:
In her first year as a music teacher at Farnsworth School, Sarah Harris is asked by her department head to create a new course on music history. Using the free time in her teaching schedule, she develops extensive materials including an outline, reading list, recordings library, blog linking to online resources and paper assignments. Over the years, "The World of Music" becomes one of Farnsworth's most popular courses. After five years, Sarah takes a new job across town at the Blackstone Academy. Farnsworth asks Mike McCauley to take over "The World of Music" and tells him he can use all of Sarah's materials. When Mike gives Sarah the good news, she is outraged. "That's my course!" she exclaims. "Farnsworth can't use my materials without my permission—and they never even asked."
Unfortunately for Sarah, she created the curriculum materials “within the scope of her employment” at Farnsworth. Her department head asked her to create it, and she did so on school time. Under copyright law, Farnsworth owns the copyright and can use the materials even without Sarah’s permission.
However, the situation is different if Farnsworth has a policy, or an agreement with Sarah, stating that it will not use materials created by teachers without their consent.
GL: What if Sarah attempts to use the materials at her new school without Farnsworth’s permission?
ZR: Legally, she cannot use the full set of materials at Blackstone unless Farnsworth has a policy permitting teachers to take the school’s course materials to other schools. However, she can certainly develop a new “World of Music” course that builds on the ideas of the Farnsworth course. The key is that only specific expressions—not underlying ideas—are protected by copyright. Sarah can probably also use excerpts of her materials under the copyright doctrine of “fair use,” which permits limited use of copyrighted materials for nonprofit educational purposes. But she will need Farnsworth’s permission if she wants to use more than excerpts.
GL: What if Sarah creates the work on her own time, without any specific assignment or guidance by the school administration or her department head?
ZR: Then we get into a gray area. The question is whether Sarah created the material “within the scope of her employment.” If she can show that she developed the curriculum on her own time and without a specific mandate from the school, she may be able to argue that she, as the creator of the work, owns the copyright. Her argument would be especially strong if she can show that development of the course went beyond what was expected of her as a member of the Farnsworth faculty. If the teacher owns the copyright, then the school can ordinarily not use the material without her consent. And the teacher can use the material elsewhere, unless such use conflicted with specific provisions in her employment agreement.
GL: Under a different scenario, what if a teacher develops materials by building on those that he or she had previously developed while in training or while working elsewhere?
ZR: Good question. As teachers gain experience and move from one school to another, they may also develop syllabi, handouts, tests and other curricular materials. Under copyright law, only the new additions to the materials belong to the current employer, assuming that the additions were made in the scope of the teacher’s employment. Without an agreement to the contrary, the previously developed work belongs to the teacher or to his or her prior employer.
GL: What if the school commissions a group of teachers to create a new course that requires an unusual investment by the school?
ZR: In such a case, the school may want to enter into a written course-development agreement with the teachers. To avoid any future misunderstandings, such an agreement should make clear that the school owns exclusive rights in the course materials and that none of the teachers may use them without specific permission.
GL: What if students develop something on school premises? We see this in ‘maker spaces’ where students have access to technologies like 3D printers and other resources. Who owns the intellectual property?
ZR: Unless the school and the students have a specific agreement to the contrary, the student owns his or her own creative work, whether it is a painting, a play, a song, a computer program or any other creative work. Providing technological resources does not give the school any copyright interest in the work done by its students.
Any school’s intellectual property policy should be based on its unique needs and values. One approach worth considering is for a school to retain copyright of materials developed by teachers, but to grant to those teachers a non-exclusive, royalty-free license to use them at other schools.
GL: What advice do you have for schools that are considering implementing policies regarding intellectual property ownership?
ZR: Any school’s intellectual property policy should be based on its unique needs and values. One approach worth considering is for a school to retain copyright of materials developed by teachers, but to grant to those teachers a non-exclusive, royalty-free license to use them at other schools. This approach acknowledges the school’s need to keep using its course materials even if the teacher who created them leaves. At the same time, it also recognizes the importance of course materials to teachers’ own professional identities and development.
On the other hand, college intellectual property policies often provide that faculty members retain copyright of their course materials, even if they were created within the scope of their employment. Should an independent school consider such a policy, it may also want to make sure it has a non-exclusive license to continue using such material when the teacher leaves.
Grace Lee is NBOA’s vice president, legal affairs, and an independent school law attorney who has represented independent schools in various employment and related matters.
Zick Rubin is a publishing, copyright and trademark lawyer in Boston (www.rubinulrich.com). He advises colleges, schools, and other educational and cultural organizations on intellectual property matters. Before he became a lawyer, Mr. Rubin was a faculty member at Harvard and Brandeis Universities.
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