News: Rights Watch
Protecting Your Intellectual Property Rights Online

So you think you own the fruits of your intellectual labor? Think again.

Suppose you create original "cyber materials" for an online course you teach as a part of your school's Web-based, distance education program.

If you later change jobs, can you still use those materials to teach the course at a different school?

Better yet, can you sell them to a company or another school?

And what if some other school or teacher uses them without permission? Can you sue for money damages?

The answer depends on who owns the copyright to these materials--you or your employer.

Historically, teachers haven't worried very much about this. In the traditional classroom setting, lesson plans and other personally produced materials have had little commercial value.

But the explosion of distance education has changed all that. Like textbooks, online instructional materials created for Web-based learning can be used and reused without the involvement of the teacher who originally created them. These materials have value separate and apart from the teacher's skill in teaching.

The proliferation of private companies offering a host of online educational services has also created a hot market for teacher-produced, instructional materials.

This, in turn, has raised the stakes in intellectual property rights.

So who owns the copyright to cyber materials? Under the federal copyright law, it's whomever the employer and employee designate as the owner.

But if there isn't any written agreement, the general rule is that the employer owns the copyright to materials that teachers produce as part of their jobs.

Materials created by teachers in the scope of their employment are deemed "works for hire" under the federal Copyright Act of 1976, and --unless the parties agree otherwise in writing-- the school employer owns them.

In deciding whether particular materials are "works for hire" created in the scope of employment, courts consider these factors:

• Did the employee's job duties include creating the materials?

• Did the employee create the materials on the job or with the employer's equipment?

• Did the employee create the materials to aid or "serve" the employer?

In most cases where teachers are given the assignment to produce original "cyber materials" for the school, the teachers' creations will be deemed a "work for hire" owned by the employer.

But where teachers develop distance learning materials on their own and for their personal benefit, the teachers likely will be deemed the copyright owner, with the right to use, license, or sell the materials.

So how can teachers protect their intellectual property rights? Working with their local NEA affiliate, they should bargain protections into the collective bargaining agreement. In non-bargaining states, local NEA affiliates and school employers should develop equitable intellectual property policies.

One solution is to bargain a "shop right" arrangement that allows teachers to retain copyright ownership of the distance learning materials they create, but grants the school a "license" to use the materials as part of its educational program.

This compromise approach protects a teacher's intellectual property rights, but also recognizes a school employer's legitimate interest in securing use of the materials for instruction by the school.

There are, however, many other valid approaches that school employees and employers can use. To learn about one NEA local affiliate's solution, check out the sidebar on this page.

--Cynthia M. Chmielewski
NEA Office of General Counsel

One Local's Solution

How can an NEA local affiliate successfully bargain intellectual property rights for faculty-created distance education materials?

In Flint, Michigan, the answer for the Mott Community College Education Association is interest-based bargaining.

MCCEA initially raised the intellectual property rights issue back in 1997, and both parties agreed to use the collaborative problem-solving clause of the local contract to resolve it.

After 16 months of collaboration, that decision has paid off in an agreement that MCCEA President Steve Robinson calls a "win-win solution."

How's that possible?

The agreement divides ownership rights between the creating faculty member and the college.

The college owns the rights to the actual courseware product, but the faculty member owns the rights to all notes and materials used in its production.

The result? If a faculty member leaves the college, neither party is left empty-handed. The college can still use the courseware product, and the faculty member is free to use all the notes and materials at a new job.

The agreement also provides faculty members with other rights, including the right of first refusal to teach the course and the right to share in revenues.

To read MCCEA's innovative contract language, visit the local's Web site at www.mccea.org/intelprop.html.