Copyright in Teacher-Created Materials

December 29, 2009 | Law

Back in November, the New York Times ran an article about the growing number of teachers who sell their lesson plans and other curriculum materials through online portals like Teachers Pay Teachers (Winnie Hu, Selling Lesson Plans Online, Teachers Raise Cash and Questions, Nov. 15, 2009). The article quoted Robert N. Lowry, deputy director of the New York State Council of School Superintendents, who suggested that if school district resources were used in the creation of materials that are subsequently sold for profit, the district should get a share of the proceeds.

The article piqued my copyright-lawyer curiosity about the ownership status of teacher-created curriculum materials. My gut reaction was that Mr. Lowry was overreaching, but like most legal questions, it required a little more research to get a more solid answer.

I performed a very cursory review of about a dozen major school districts’ teacher employment agreements (the ones negotiated with the large teachers’ unions) that I found online, and found none that contained anything about copyright ownership. Absent a written agreement to the contrary, it seems as though the “default rules” of copyright would apply.

On its face, the copyright law as it relates to employees and employers seems pretty straightforward: if the work in question was created within the scope of employment, the employer is deemed the author for copyright purposes, and thus, the copyright owner.

In Community for Creative Non Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court instructed that to determine whether the creation of a certain copyrighted work falls within the scope of employment, we must look to widely-recognized common law agency principles. The court explained:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. No one of these factors is determinative.

490 U.S. at 752-53 (citations and footnotes omitted).

So, determining whether certain teacher-created materials are copyrighted by the school district requires an analysis of the circumstances around which they were created.

At first blush, it seems as if the copyright is clearly owned by the district. Teachers are generally not in business for themselves, but rather, are employees of the district in which they teach and for which they created the curriculum materials. To my mind, where the analysis becomes a bit murky is in considering factors like the “source of the instrumentalities and tools,” “the location of the work,” and “the hiring party’s right to control the manner and means by which the product is accomplished.” While some curriculum materials are probably created at school, using school resources, it is widely known that teachers do a substantial amount of work outside of regular working hours, often using their own resources, and spending their own money. To the extent a teacher creates materials outside of regular school hours, without using any district resources – e.g., on their own computer at home – the balance tends to tip in favor of the teacher owning the copyright.

Moreover, it’s unclear to what extent developing curriculum materials is actually part of a teacher’s job requirements. That may sound a little odd, since it would seem that developing teaching materials is a prerequisite to actually teaching, but I’d imagine that most teachers could by, if they were so inclined, by using standardized, district-provided materials, or materials created by third parties.

I concede that I have no significant teaching experience myself, but I was a student for a long time, and had my share of teachers that I’d bet hadn’t created an original lesson plan since they were required to as part of their education courses in college. Nobody has fired them yet, which suggests to me that just showing up and teaching the same old stuff year after year is sufficient to meet the basal requirements of being a teacher.

So, what does this all mean for copyright ownership of teacher-created curriculum materials?

Like most things in law, the answer is: it depends. Absent a specific agreement dealing with copyright ownership issues, the answer depends on the facts and circumstances surrounding the creation of particular curriculum resources on a case-by-case basis.

A more interesting question for me is, as a policy matter, how should school districts treat the copyright interest in teacher-created curriculum materials? As the New York Times article notes, “[t]he marketplace for education tips and tricks is too new to have generated policies or guidelines in most places.” So, I offer a few thoughts that I hope school districts will keep in mind as they set out, as many will do in the future, to create such policies.

Most respected institutions of higher learning – both public and private – have explicit intellectual property policies that govern the ownership of intellectual assets created in the course of a professor’s employment. Typically, although not uniformly, most such policies allow professors to retain the copyright to teaching and curriculum materials as well as other scholarly pursuits, such as books, articles, and the like.

Here’s the relevant portion of the policy from my alma mater, Lehigh University (available in full, here):

Traditional Academic Rights: In keeping with academic traditions at the University, the creator shall retain ownership to the following types of Intellectual Property, without limitation unless part of an agreement under the above principles of ownership: books (fiction, nonfiction, poetry, textbooks etc.), articles, poems, published standardized tests, student papers (themes, term papers, reports, exams, etc.) musical works, dramatic works including any accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures, video recordings, and sound recordings. This provision does not automatically include computer software, databases, and other electronic media because no academic tradition exists for them. Until standard practices emerge creators of any innovative Intellectual Property are encouraged to pursue Individual Project Agreements with the University.

Teaching Materials: Creators of reusable teaching and classroom materials for Lehigh courses, such as curriculum guides, problem sets, exercise solutions, laboratory manuals etc., shall own these materials unless they are subject to a prior agreement governing their ownership. In all cases the University shall have a non-exclusive, royalty-free, perpetual license to use, display, copy, distribute, and prepare derivative works of such materials for internal University use.

Put simply, in most cases, Lehigh professors get to keep the copyright to their own work, but the university gets to use it as much as they want, for as long as they want, without having to pay more for it. That seems like a reasonable quid pro quo.

School districts should adopt similar policies.

There is no reason for school districts to take copyright ownership in teachers’ own curriculum materials to fulfill their educational mission. Public schools are in the business of educating students, not selling curriculum materials, and most school districts with which I’m familiar would probably do a pretty poor job of making the leap into academic publishing. Under a liberal licensing arrangement, such as the one found in Lehigh’s intellectual property policy, a district could enjoy unfettered access to its own teachers’ materials, thereby ensuring that students would benefit from the fruits of teachers’ labors well into the future, while still preserving the teachers’ exclusive right under copyright law to commercialize his or her work. A win-win.

Allowing teachers to retain their copyrights might also serve as an added incentive to create new material, which is, after all, the central purpose of copyright law.

Those teachers who are already motivated to develop innovative new materials will, undoubtedly, continue to do so; allowing them to subsequently sell their wares can only further encourage them to continue creating high-quality, academically-sound curriculum materials.

Those who can’t currently be bothered to write their own materials may see new value in doing so if they have the opportunity to make some extra cash off of their work down the road.

It’s a pretty sad state of affairs in education if the promise of generating a few bucks off of some lesson plans is the motivator for bad teachers to become better ones, but if it lifts just one teacher up, it’s hard to see a downside.