Intellectual Property in Schools: Who Owns it – Employers or teachers?

Sharon Givoni Consulting Copyright, Intellectual Property

When it comes to intellectual property (IP) in schools, it’s not just lesson plans and teaching materials that come into play.

Teachers may also create IP in their own time that is not directly related to their teaching duties, such as writing educational books, creating learning apps or tutoring websites.

Clients often ask us: who owns this IP?

Australian IP laws – ownership of IP and teachers duties

Australian IP laws state that the ownership of IP created outside of normal employment duties can be a complex issue, and it’s not always clear-cut. Here’s why: If an employee creates IP during the course of their employment, whether it’s copyright in written work or the design of a new mobile app for the school, then the school will own that IP. However, things get more complicated when the employee creates IP outside of normal school hours and using their own materials. Add to that an extra layer when the work they do has noting to do with what they are teaching.

What does the employment contract say?

Determining ownership of IP requires looking at the employment contract and the position description of the teacher to see if the work that they did to create the IP falls within their normal duties (that is – the “scope of employment” to use more legal terms).

For example, if a music teacher writes a piece of music while teaching a class, then the school would likely own the copyright in that music. However, if the same teacher wrote the music outside of school hours and using their own resources, then the copyright in that music may or may not belong to the teacher. Does the contract say that the school still owns it if it has any connection to what he or she teaches? And what if that teacher then goes and does her own course during the weekend for kids? Or, to take it a few steps further, starts a cooking course on the weekend (they will still be teaching, but not music).

Each case turns on its facts

The answer is that there are the basic rules under the copyright Act and that can be changed by contract, which if the teacher signs, he or she may be bound by. There are exceptions to the rule as well (eg if it is unreasonable or unworkable).

A lawyer will want to read your contract as a very first step and the apply the legislation and the case law, if relevant.

How to avoid disputes

To avoid disputes and ensure clarity, schools and teachers should follow these tips:

Tip 1: Identify the IP – who owns what and why?
As an employer, the school should determine what IP it wants to retain ownership of. It may only be concerned with keeping ownership of curriculum and literary works, but may allow employees to retain ownership of other creative works. It is essential to determine the type of IP that is crucial to the school and establish policies to protect that IP. Teachers need to be aware of the contract they have signed and get clarity before they sign and not after.

Tip 2: Spell it out
All schools should have clear policies and contractual terms in place concerning IP ownership. The policies should specify different rules for different work areas or teaching subjects. There may be conditions on ownership, such as an agreement for a teacher to retain ownership of the IP, but grant the school a licence to use it. Having these rules clear and documented from the start will help avoid disputes in the future. Teachers need to ask questions if they don’t understand that rules and tread carefully if they want to create IP outside of work.

Tip 3: Know what the rules are and when they change
A school’s IP policy should be reviewed regularly to ensure it remains relevant and aligns with the school’s interests. As the school’s operations change, so do its IP ownership needs. Reviewing the policies regularly can ensure that the school’s IP is well-protected and any changes in ownership are addressed appropriately. Teachers of course also need to be aware of the policies as these will guide the school’s values. But the contract for teachers again, is the starting point and contracts are often updated from time to time so teachers need to read them from scratch and never assume they are the same as last year’s.

Types of works that arise in schools

As a parting tip: Don’t forget that the types of IP in schools can be very board.

They include copyright which protects various works, such as journal articles, poems, reports, computer programs, paintings, photographs, drawings, choreography, plays, and musical works and inventions such as new ways of doing things or making things work.

In summary, teachers create IP regularly in schools, and contractual terms as a starting point can determine who owns what. It is important to have clear contracts in place to avoid disputes and ensure clarity and teachers should get legal advice before going off and creating things that they want to commercialise or sell in their own right to avoid disappointment later.

What we can do for you in this area

We can provide a range of legal services to teachers and students when it comes to copyright law and ownership, including:

• Educating teachers about their rights and obligations under copyright law.
• Drafting policies and agreements for schools and educational institutions that clarify ownership and use of materials created by teachers and students.
• Advising teachers and students on the use of third-party materials in their own work, including fair use and the use of Creative Commons licenses.
• Representing teachers and students in copyright disputes, such as claims of infringement or ownership disputes.
• Conducting audits of schools and educational institutions to identify potential copyright issues and areas of risk.
• Negotiating and drafting licenses and agreements for the use of copyrighted materials in educational contexts.
• Providing training and workshops for teachers and students on best practices for copyright compliance and management.
• Advising schools and educational institutions on compliance with the Copyright Act and other relevant laws and regulations.
• Conducting due diligence reviews of copyrighted materials in connection with mergers and acquisitions of educational institutions.
• Developing strategies for protecting and enforcing intellectual property rights in the education sector.
• Our goal is to help teachers and students navigate the complex landscape of copyright law and ownership, and to ensure that they are able to create and use educational materials in a manner that is legally compliant and ethical.
• Registering trade marks for the names and logos of schools and courses.

Please note the above article is general in nature and does not constitute legal advice.
This article was written by Sharon Givoni, Principal Solicitor at the law firm Sharon Givoni Consulting (https://www.sharongivoni.com.au/). We do a lot of work in the area of interior design and understand the industry.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.