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Intellectual Property

Teachers play roles as both producers and consumers of intellectual property. In the online environment, many of the usual laws and policies apply but the impact can extend far beyond the local photocopier, raising the stakes for both the teacher and the school system. Who owns the materials that teachers produce? What constitutes fair use? Policies can help protect both the teacher and the school from inappropriate uses and misunderstandings.

Teachers as Consumers

Teachers frequently use readily available, copyrighted materials in their paper or electronic materials. Federal copyright laws allow for fair use of copyrighted materials, and defines four factors that determine fair use:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Reproduction by a teacher or student of a small part of a work to illustrate a lesson is generally regarded as fair use, but there are no clear bright lines that separate fair use from copyright infringement. There is not a specific number of words, pages, or chapters that can be used without permission, and citing the material does not substitute for obtaining the owner’s permission to use it.

More information on fair use can be found at the U.S. Copyright Office.

Policies and teacher contracts should reinforce and communicate fair use expectations and stress teachers’ individual responsibility for complying with copyright law.

Teachers as Producers

When a teacher creates a handout or unit for use in the brick-and-mortar classroom, the materials technically become part of the school curriculum. Although the school administration or school board is ultimately responsible for classroom curriculum, those leaders generally don’t have interest in the teacher-created materials until controversy arises.

In the online environment, units or courses that a teacher produces have the potential to be available to students statewide or nationwide. They might be used to increase enrollment in the home district, and therefore increase the district’s revenues. In exceptional cases, commercial companies may be interested in purchasing teacher-developed materials. Clearly, the stakes can be high.

As salaried employees, the intellectual property that teachers create generally belongs to the school that employs them. This is similar to an engineer who works for a large company. Although the engineer may invent something, he/she doesn’t own the intellectual property. The company owns it because the company paid the engineer to invent it. This concept is known as work for hire, and the legal definition includes work intended to be used in systematic instructional activities.³

In schools, that basic concept is not always followed and there are many legitimate reasons for using a different approach. Whatever you deem is the best approach for your program, it is critical that the teacher contract and related policies clearly describe who owns teacher-created materials, who can re-sell them, and who is responsible for maintaining copies. Programs that hire teachers to do curriculum writing separately from their usual assignment (such as over the summer) may wish to have a separate policy or contract addendum that outlines school and teacher rights for the particular materials that are created.

Through clear policies, teachers can engage in curriculum writing with no surprises about what happens to the end products and programs can avoid the brain drain that might happen when teachers leave the program and take their materials with them.