Who "owns" teacher created materials?

Question of the week:

I have a teacher that has created a creative commons curriculum.  It's on a Google Site.  It is amazing.  My problem  is that he has created it on his professional site - which is a a public Google site and and he has purchased a domain name for it.  While he has clearly licensed it under Creative Commons, I have concerns about what would happen if he leaves, if he got hit by a bus, etc.   Do you have any thoughts to this or a policy?  We dont care that he has developed CC curriculum. I am more concerned about the physical space it resides on - and lack of district control.  Should I be?

The question I would ask in the situation above is if the teacher developed this material on his own time or as a district employee. If he did this as a district employee, as a requirement of his job, using school resources,  then I would argue the school "owns" the course and it should be moved or copied to a school controlled host. If it something he created outside of school - for a college class, for publication, whatever - and was not something required by the district, my thought is that he owns it and we are all lucky he put the material under CC. But as it stands, I have no official policy to back me up.

 

Public schools, including ours, haven't done enough to define intellectual property rights of teacher, and perhaps student, created materials. Universities have done a better job, and we can look to them as models - perhaps. As classes begin to increasingly use CMS with (or rather than) textbooks and other commercial products, questions like the one above will become more prevalent - and important.

 

Our local university is a part of MNSCU (the Minnesota State Colleges and University system) and their 3.26 Intellectual Property board policy gives some guidance. At the heart, it recognizes four types of IP:

1. Institutional Works: "Institutional works are works made for hire in the course and scope of employment by employees or by any person with the use of college or university resources, unless the resources were available to the public without charge or the creator had paid the requisite fee to utilize the resources. A course outline is an institutional work." These belong to the institution.
2. Scholarly Works: "Scholarly works are creations that reflect research, creativity, and/or academic effort. Scholarly works include course syllabi, instructional materials (such as textbooks and course materials), distance learning works, journal articles, research bulletins, lectures, monographs, plays, poems, literary works, works of art (whether pictorial, graphic, sculptural, or other artistic creation), computer software/programs, electronic works, sound recordings, musical compositions, and similar creations." These belong to the individual who created them.
3. Personal Works: "A personal work is a work created by an employee or student outside his or her scope of employment and without the use of college or university resources other than resources that are available to the public or resources for which the creator has paid the requisite fee to utilize." These belong to the individual who created them.
4. Student Works: "a) Intellectual property rights in student works belong to the student who created the work. b) A creative work by a student to meet course requirements using college or university resources for which the student has paid tuition and fees to access courses/programs or using resources available to the public, is the property of the student. c) A work created by a student employee during the course and scope of employment is an institutional work and intellectual property rights to such creation belong to the college or university unless an agreement, sponsorship agreement, or other condition described in Subpart B or C below provides otherwise." So the ownership of student works depends on whether it is done as a student or as a student employee.

Were the teacher who created the CC course a member of MNSCU, my reading of this policy gives him, not the school, ownership of the course since it fits the Scholarly Works category. 

Yet one of the few schools in Minnesota that I am aware of having having a board policy on who owns IP is quite different. Its policy states:

Unless the employee develops, creates or assists in developing or creating a publication, instructional material, computer program, invention or creation entirely on the employee’s own time and without the use of any school district facilities or equipment; the employee shall immediately disclose and, on demand of the school district, assign to the school district any rights to publications, instructional materials, computer programs, materials posted on websites, inventions or creations that the employee develops or creates or assists in developing or creating during the term of the employee’s employment and for 12 months after employment with ______ Public Schools. In addition, employees must sign necessary documents and perform necessary acts to secure the school district’s rights relating to such publications, instructional materials, computer programs, materials posted on websites, inventions or creations, including domestic and foreign patents and copyrights. 

So in order to answer the question above, we would need more information according to this school's policy - when and where was the material created, not specifically for what purpose. My sense is that determining "on whose time" a product is created may become increasingly difficult as work life and personal life seem to be more and more blended and there is the expectation that teachers do a lot work outside the "contract day."

K-12 schools probably need more rights to teacher created materials since their curricula are more standardized continuous than that of a university's. What a teacher creates for a class that supports state standards can be used by many teachers over an extended period of time. In my experience teaching post-secondary classes, every instructor basically starts from scratch following only general content guidelines so access and use by contemporary and future instructors is not as important.

Another way to address this issue is by taking the approach that the MN Partnership for Collaborative Curriculum & Innovative Instruction has taken and set clear property rules up front for a specific project. Teachers work on the course for a set payment, knowing they have access via CC, but not ownership.  

As more of our teachers develop online content, this question will come up more often. When writing our policy, I'd like to look at a few more policies, example the feasibility of co-ownership of copyrightable materials, and consult our teachers' organization.

 

Anybody with a brilliant policy they'd be willing to share?

Here's another POV worth considering...

We do not have an IP policy, though the question has been posed.  IMHO, the likelihood of needing to enforce IP rights by a district are very small while the risk of perturbation of staff by stating that we own IP rights to 99% of classroom material is high.  In addition, if we get ourselves in a situation of enforcing rights, having a policy or not having a policy is likely irrelevant.

Image source

Comments

[Conn McQuinn]

I attended a presentation on this topic hosted by a large legal firm, and they said that unless the teacher contract says otherwise, materials developed for use in the classroom or school belong to the district. It didn't matter when or where those materials were developed; when you are a salaried employee, legally speaking there is no such thing as "your own time" in this setting.

Districts and their unions would be well served to address this issue directly in their contract language before a situation such as you have described becomes a point of contention. Just because a district CAN claim ownership of their teachers' work doesn't mean it's in the district's best interest to do so, and you certainly don't want to surprise a teacher with that idea after they have put up the content under CC licensing or started selling it.

[Doug Johnson]

Thanks, Conn. Wise words. I most contractual issues, I tend to make odds on the organization rather than the individual!

Doug

[Darren Draper]

Hello Doug!

I wrote about this topic in April while struggling to think aloud about how I felt about Teachers Pay Teachers. I've referenced related laws and policies from my state that you might find beneficial.

http://drapestakes.blogspot.com/2013/04/why-i-struggle-with-teachers-pay.html

From the comments and my multiple additions to the post, you'll see that the issue of ownership can tangle easily with emotion and obvious complexity.

Thanks for your contributions here to the discussion!

[Jen Hegna]

Great post Doug! What if a district wanted to encourage teachers to develop Creative Commons licensed courses/materials? Would the district be responsible to approve all CC resources? Would the district need to be part of the CC license? And finally - should/would district policy be changed to support teachers developing Open Ed Resources? Essentially, I would love it if our district would FORMALLY approve the development of OER/CC resources vs having teachers ask for permission. On the other side, if my district's name is on it - we want to make sure it is of good quality. Thoughts?

[Tim Stahmer]

We've had a lot of debate around this issue over the past few years and I've never been able to find someone in HR or the Superintendent's legal office who will offer a straight, easily-understood-by-the-average-teacher answer. Our contract says little more than we will abide by all the policies and regulations, and there are none that specifically address the issue of intellectual property rights, other than our straight-laced and very rigid copyright "guidelines" for use of IP.

The advice I give teachers and others who plan to sell (TeachersPayTeachers has received a lot of notice here lately) or even distribute free under a Creative Commons license is to do the work entirely outside of "contract" hours and use only their personally purchased equipment and materials. Even then I remind them that the district has more money for lawyers than they do and potentially could challenge ownership, although I doubt that would ever happen.

[Doug Johnson]

Thanks, Darren, for sharing this. The post and comments are rich with thoughtful ideas. This is a complex topic with no easy answers, but I think my line of exploration for our district will be to see if one can give joint ownership to teacher-created materials....

I also wonder why there is such a huge difference in how university and K-12 teachers are being treated in this area?

Doug

Hi Jen,

Yes, my primary thought is that I am confused, but that we need to spell out ownership rights at the beginning of any large projects, not at the end of them. I don't know that districts have ever paid a great deal of attention to the quality of teacher created materials, but now that they will be in the public view, this will change! Very interesting.

Doug

Hi Tim,

Without contract language, I suspect your answer is a good one. I don't see a district trying to sue a teacher for ownership to a worksheet sold on TPT, but you never know. I do know plenty of teachers (and accountants and doctors and lawyers, etc) write books that seem to fall outside the employer ownership guidelines. What's bringing this to a head now is the creation of online courses we want at OER. Not exactly sure where to go (teacher's union?) to get any interest in this issue.

Thanks for the comment,

Doug

[Regina Leyva]

I am a Digital Art teacher for a high school. We use Canvas LMS. I write all my own coursework and I create all my own tutorials using a screen cast software. I have my own logo on my lessons. I can delete these lessons anytime I want. I am wondering about employer rights. I do most of my work at home on my personal computer and then post it on Canvas but I would have to prove this. I would like to use my work on a website I am developing and I am capable of tweaking the lessons for a variety of venues but what if I want to use the same logo I am currently using. I have spent countless hours revising and perfecting these lessons. I am now realizing that I should get my documents off the Google Drive associated with my employer account. When I leave this place of employment I plan to delete the content I feel is most valuable and leave the rest for the District. Do you have any advice for Art teachers who are rarely given any content to teach with. I have taught art with both traditional media and digital for 15 years, and have never had any course curriculum provided by my employer be it a Charter school or District School.

[Doug Johnson]

Hi Regina,

I would certainly look to see if your school board addresses ownership of self-created teaching materials in policy. It should. If it does not cover it or does not give teacher rights to material after leaving the district, I would work with my teachers' association to get a good policy in place.

I would also keep copies of all work I created on a personal device as a backup to reuse in a future position.

Please remember that I am NOT a lawyer and this is not official legal advice!

Doug