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When a teacher gets creative, who owns the IP?

Emily Shoemark

11 Sep 2019

Topics

  • Intellectual Property

When you think of intellectual property (IP) you may think of copyright in artistic works, trademarks and inventions. However, teachers can create IP more often than you think – then the question arises, who owns that IP? In this article Emily Shoemark outlines some of the issues associated with IP in schools.

What is IP?

IP is the property of someone’s mind – often embodied in creative work or inventions. In Australia the law protects various types of IP, including:

  • Copyright: protection that automatically exists in relation to original works including art, music and literature
  • Trademark: a word or image that is a way of identifying a unique product or service, which can be registered with IP Australia and is a form of brand protection
  • Patents: protection for new inventions, including a device, substance, method or process.

The type of IP most relevant to schools is copyright. Under the Copyright Act, copyright protects a range of works relevant to schools, including journal articles, poems, reports, computer programs, paintings, photographs, drawings, choreography, plays and musical works.

Employees and IP

The general rule of thumb is that if an employee creates IP during the course of employment, whether copyright in original written work, an original piece of art or the design of a new mobile app for the school, then the school will own that IP.

However, what is the position when the employee creates an original work outside of normal school hours, but using school materials? What about if a teacher does not teach drama, but contributes to writing a school play?

To ascertain who owns the IP, it is important to look at:

  1. The employment contract to see if it sets out any rules about creation of IP
  2. The position description for the teacher to see if the work that the teacher did to create the IP falls within their normal duties
  3. Whether the IP was created as a result of the teacher following a direction of the school.

The real question is: ‘What was the employee employed to do?’. If a teacher was employed to teach maths, but after hours went to the music room and wrote a piece of music, then the school would have difficulty claiming ownership of that IP unless there were specific contractual terms that covered these circumstances. However, if the teacher was a music teacher and wrote the music while teaching a class, then the copyright in that music would likely be owned by the school as it was created during the course of employment.

 Top tips for schools

1. Work out what IP the school wants to protect and ensure that ownership is maintained.

The school, as an employer, should consider what IP it wants to retain – for example it may be that it is only concerned about retaining curriculum and literary works, and wishes employees to retain ownership of IP in other creative works.

2. Make the rules clear.

All schools should have clear policies and contractual terms about IP ownership. It may be that different rules are appropriate for different work areas or teaching subjects. It may also be that there are conditions on ownership – for example it may be that the school is happy for a teacher to retain ownership of IP created, but as a term of employment that teacher must grant the school a licence to use that IP.

3. Review the rules regularly.

Like any employment policies, a school’s IP policy should be reviewed regularly to ensure it is kept up to date with the operations of the school and the interests of the school, which may change from time to time.

How can we help?

Our Intellectual Property and Employment Law teams can help you if you’d like to know more about IP, and with the development and updating of workplace policies. Please contact us today for assistance on 02 6285 8000 or by email.