A teacher in my district has written an amazing curriculum, but he's created it on his personal website. What if he leaves, and the district lacks rights to it? —curriculum directorCan my teachers sell study guides they've made for their classes online? —principalWhy should I develop an online course instead of using a textbook? The district will own the copyright to anything I create, and if I take a job in another district, I'll have to do it all again. —teacher
With many educators taking advantage of new technologies to create their own materials—units, study guides, and whole courses—I often hear questions like these. Teacher-created materials are increasingly popular. Curriculums based on standards, rather than textbooks, often call for customized units, and the increase in learning through digital content delivery systems like Moodle creates a demand for original content. An enterprise called Teachers Pay Teachers advertises itself as an "open marketplace for educators to buy, sell, and share their original resources."
Teachers creating materials of commercial value to others? What a concept! But it raises sticky questions about who owns these creations. If your school hasn't begun to develop policies about the intellectual property (IP) rights surrounding employee-created materials, now is the time.
School districts need to set clear policies about who owns original materials, for the sake of both the institution (which needs assurance that materials created by a teacher paid with public dollars will remain available after the creator leaves) and the creator (who may take personal time to develop materials and want to use them in another district—or sell them).
What Works for Universities
Universities have already begun creating intellectual property policies, and K–12 schools might look to them as models. For example, the Minnesota state colleges and universities board policy on intellectual property gives some guidance. The policy recognizes three types of intellectual property and treats each type differently:
- Institutional 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"—things like course outlines—belong to the institution.
- Scholarly works that are "creations that reflect research, creativity, and/or academic effort"—such as syllabi, textbooks and course materials, distance learning works, journal articles, literary works, works of art and music, and computer programs—belong to the individuals who created them.
- Personal works "created by an employee or student outside his or her scope of employment and without the use of college or university resources" belong to the individuals who created them.
In other words, postsecondary institutions tend to give ownership of products that are created by faculty or students to the people who created them.
… May Not Work for Schools
Most K–12 schools, however, keep ownership of such products. Here's language (slightly revised for brevity) from a typical K–12 school board intellectual property policy:
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 that material.
It can be argued that K–12 schools need more rights to teacher-created materials because their curriculums are more standardized and in more continuous use than those of a university. Material that a K–12 teacher creates for a class that supports state standards can be used by many teachers for many years. In contrast, from what I've seen of postsecondary courses, each instructor is likely to start from scratch, following only general course guidelines. Accessing good content created by another instructor isn't as important.
That said, two factors are making K–12 institutions' stringent demands to own intellectual property less defendable. First, determining on whose time a product is created has become difficult as work and personal life blend and schools expect teachers to do a lot of work outside their "contract day." The other factor is the growing acceptability of Creative Commons licensing, which provides less restrictive use of materials than traditional copyright laws. Creative Commons offers creators a way to give others rights to use their original materials in prescribed ways without giving up ownership of these works.
Alternative Approaches
Some education organizations that have teachers create courses or materials set out clear intellectual property rules up front for each specific project. Teachers might create a course for a predetermined payment, for instance, knowing they'll have access to that course through Creative Commons but won't own it. Monitoring and determining ownership of products on a project-by-project basis, however, would be burdensome for a district.
A better approach might be that of my district, Mankato Area Public Schools in Minnesota. Our policy gives ownership of teacher-created material to both the teacher and the school. One interesting attribute of intellectual property is that multiple people can use it at the same time, unlike most physical property. Here's how the relevant section of our policy reads:
- Neither party may place any restrictions on its use by the other party.
- Both parties may use the work for commercial purposes (sell it, sell it as part of a larger commercial work like a book or for-pay course, or use it in presentations/workshops for which an honorarium is given).
- Neither party may make claims to any profits made by the other party.
- Neither party may limit the other party's right to assign a Creative Commons license; however, neither party may place the work in the public domain without the written consent of the other party.
- The teacher may continue to use the work when he/she leaves employment with the district.
- The district may continue to use the material after the teacher is no longer employed.
The Mankato district defines teacher-created materials as "publications, instructional materials, inventions, and creations that employees may develop or create, or assist in developing or creating, while employed by the school district"—anything created during contract hours, using school equipment, or as part of contractual duties. I honestly don't see any losers in this policy—except copyright lawyers.
The chance that a district will need to enforce intellectual property rights is small, whereas the risk of perturbing teachers by stating that the district owns the rights to any materials they create is great. If we want to encourage educators to design original instructional materials—especially as we move toward online learning environments—we'll need to design creator-friendly policies that still give the institution some rights.
