Copyright for Librarians and Teachers, in a Nutshell

Who controls uses of your on-the-job writing?

Posted Mon, 07/02/2012 - 18:20

Copyright in—or, in this case, under—a nutshell

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You may have wondered whether you hold the copyright to work you’ve put many hours into creating on the job. Who holds the copyright to works created by teachers or librarians? Short answer: In general, when employees create works as a condition of employment, the copyright holder is the employer.

As a school librarian or teacher, you create works all the time—lesson plans, finding tools, and so on—fairly independently, without specific conditions established by the school. If you are developing a syllabus, the school generally does not specify what to write or how long or detailed the syllabus should be, as would be the case in a “work for hire” situation (see box at the end). Nonetheless, you are being paid by the school to do a particular job, so the rights for materials you create are held by the school.

The employer holds the copyright when you create the works on the job, using school resources and technology, and receive a regular paycheck with Social Security and insurance deductions. These conditions point to an extended and anticipated ongoing relationship with your employer. Understandably, a school librarian may believe she holds the copyright to her recently completed lesson plan. But if she used school resources and created the lesson on “company time,” the school likely holds the copyright.

Use of your work outside of school

If the school holds the copyright to your works, are you allowed to use those works outside of the school—at a conference or in a training session? Can you lend your lesson plans to other teachers in another district without asking for permission? The answer depends on how restrictive your school policy is about works created on the job. For the most part, members of an educational community tend to have a more open view about sharing works with colleagues because of their collective commitment to advance learning. In addition, unlike other creators, we do not make our living selling the works we create on the job.

Many schools do not have a policy addressing the “ownership” of librarian- and teacher-created content, and you may want to pursue establishing such a policy. Alternatively, let sleeping dogs lie and forgo a strict policy, which allows the flexibility of determining the best course of action on a case-by-case basis—whether to use a created work at a professional conference, for instance. In many cases, use of works outside of the classroom will be “fair use,” which does not require permission from the copyright holder.

Using the copyrighted work of others

Copyrights can be transferred (see below) and those transfers can be “exclusive,” “nonexclusive,” or “time-based.” In an example of a time-based transfer, say a librarian wants to establish movie night at the library. Showing movies to the public is a right held by the rights holder (in this case, the motion picture company). The librarian would—if the rights holder agreed—license the right to publicly perform a work on the date of the movie screening only. This is also an example of a nonexclusive contract, because the rights holder can transfer the right to publicly perform to anyone as many times as the rights holder desires.

US Copyright Law

The creator or author of an original work holds the copyright to the work.

However, rights of copyright can be transferred, as stated in 17 U.S.C.§ 201(d):

1. The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
2. Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

Example: A researcher writes a paper that is later published in an academic journal. The researcher holds the copyright to his work, but under a contract with the publisher, transfers an exclusive right or more (the right of reproduction, the right of distribution) to the publisher. The publisher can then exercise an exclusive right that originally was held by the researcher to publish and sell the article to the public.

Transfers of copyrights can be “exclusive” or “nonexclusive.” An exclusive transfer means that only one publisher (as in the example above) is assigned those particular rights. Nonexclusive means that the rights holder may transfer the same right to other individuals or entities. Naturally, a publisher would negotiate for exclusive rights to eliminate any potential competitors.

“Work for hire”

A work for hire is one that is commissioned by an employer or other person. In a work-for-hire situation, the employer is hiring an individual to create a work for the employer under a written contract. The copyright is held by the employer unless the contract says otherwise.

As stated in 17 U.S.C.§ 201(b):

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

CARRIE RUSSELL is director of the Program on Public Access to Information at ALA’s Office of Information Technology Policy in Washington, D.C. She has developed copyright education programs and related services to help ALA members understand the latest trends regarding copyright law and its impact on libraries. This is an excerpt from ALA Editions’ Complete Copyright for K–12 Librarians and Educators, which is scheduled for publication this fall.