1. Know the concepts.
Before any policy can be enacted, it’s important all parties know two key definitions when discussing issues of teacher-created digital content: copyright and license.
The brief defines copyright as ownership of intellectual property. A copyrighted work is any form of expression that reflects at least minimal creativity on the part of the author, including text, images, lesson plans, et cetera. Copyright controls how the intellectual property can be used and distributed. It’s also attached automatically when the work is created, and copyright is granted to ‘the author’ of that work.
License refers to permission for others to use or to share the intellectual property (without the copyright owner relinquishing its ownership).
Copyright awareness for superintendents and administrators:
2. Know what the law says…and doesn’t say.
Before The Copyright Act of 1976, copyright was automatically granted to the teacher creating educational materials during their employment. This action was an exception to the “work made for hire” rule that typically allocated ownership for work prepared during employment to the employer.
However, as the brief explains, neither the language nor the legislative history of the Copyright Act of 1976 mentions the “teacher exception,” or any other exception to the “work for hire” rule. Therefore, “it is unclear whether Congress intended to leave this judicially created right intact,” notes the brief.
SETDA states that judicial opinions go both ways, with the crux of the difference in opinion turning on whether the Copyright Act should be interpreted literally or in light of its history and purpose. However, academic publishers and university copyright policies treat teachers as the authors of the teaching materials and scholarship they produce.
Other legal considerations outside of the Copyright Act should also be considered, says the brief, since state laws may differ regarding the identity of a teacher’s employer; it could be the state, a school district, or some combination. Also, educators may be developing digital materials pursuant to federal, state, or privately funded grants that establish their own intellectual property obligations.
(Next page: Must-know #3; recommendations)