Who Owns Course Materials Prepared by a Teacher or Professor? The Application of Copyright Law to Teaching Materials in the Internet Age

Abstract

In this article the term "teacher" is used to mean an instructor in a grade school or high school. The term "professor" means an instructor in a college or university. Occasionally, the term "faculty member" is used as shorthand to refer to either a teacher or a professor. Some of the court decisions cited "teacher" broadly to include either a teacher or a professor. The distinction between "teacher" and "professor" is useful as grade school and high school teachers traditionally have different responsibilities from college and university professors. For example, college and university professors are typically expected to write and publish scholarship such as journal articles or books in addition to teaching. Grade school and high school teachers are typically not expected to produce published scholarship. The distinction is thus relevant when, for example, a court must determine the scope of employment for copyright law purposes. Finally, the term "educational institution" is occasionally used as shorthand to refer to a grade school, high school, college or university.

The Teacher Exception Under the Work for Hire Doctrine: Safeguard of Academic Freedom or Vehicle for Academic Free Enterprise?

“…(However, during trial a university administrator testified that it was customary that, if a manuscript was forecast to be profitable, the university and professor would enter into a publisher's-type agreement in which the university would pay the professor commercial royalty rates.) In its ruling, the court could not find reason as to why a university would want to maintain ownership of professorial copyrights: "[s]uch retention would be useless except possibly for making a little profit from a publication and for making it difficult for the teacher to give the same lectures, should he change jobs" (Williams v. Weisser 1969, p. 734), citing that the class notes in question came from a course Williams taught prior to joining the faculty at UCLA (Holmes and Levin 2000).…”

Table of Contents

“…Thus, if the institution records the instructor, that work is a derivative piece to the lecture. A set of legal commentators forwards another argument that interprets the existence of an academic exception to the work-made-for-hire doctrine (Daniel and Pauken, 1999;Dreyfuss, 1987;Holmes and Levin, 2000;Kulkarni, 1995;Kwall, 2001;Lape, 1992;Scully, 2004). As support for this exception, these commentators cite three cases that discussed this issue.…”

“…A third argument raised in support of faculty ownership of course materials centers on academic custom and tradition, including academic freedom (Holmes and Levin, 2000;Kulkarni, 1995;Kwall, 2001;Lape, 1992;Laughlin, 2000;Scully, 2004). Under this argument, faculty ownership rights follow a long history and tradition in the academic community, a logic that supports the academic exception to the work-made-for-hire doctrine.…”

“…That unintended but potential consequence would harm society, and, accordingly, academic custom justifies a public policy argument that allows professors to hold the copyright over course materials they create. Furthermore, as Holmes and Levin (2000) note, professors change universities, so if universities owned the course materials, professors would be denied the freedom to take their materials with them.…”

Should there be corporate concern?

“…Unless there exists a clear and unambiguous contract or policy, such as is often found in corporate/academic partnerships, determining ownership of intellectual property within an academic environment is clearly an arduous task. There are few reported cases that address whether the educational institution or the faculty member owns the property created by the faculty member (Holmes and Levin, 1999). In environments other than academia, it has long been established that the employer owns property created by an employee.…”