Public K-12 Teachers Creation of Nontraditional Educational Works: To Rely on the Teacher Exception or Explore Other Options?

INTRODUCTION I. STATE OF THE LAW A. History of the Treatment of Intellectual Property Created by Teachers B. Commentators Take on the Existence of the Teacher Exception C. Interpretation of the Works Made for Hire Doctrine II. HOW SHOUD TEACHERS AND THEIR EMPLOYERS PROCEED A. Contracts and the Works Made for Hire Doctrine 1. Collective Bargaining 2. Individual Employee Negotiations B. Teacher's Scope of Employment CONCLUSION INTRODUCTION Picture this. You have been in contact with a local community college regarding an idea you have for a new degree program. You have created the program materials using knowledge and skills you have acquired during your academic studies and adult life. The college becomes interested in implementing your degree program into its curriculum and offers to purchase the program materials from you. Enter the possible dilemma. You are a public school kindergarten through twelfth grade (K-12) teacher and your employer, the public school, (1) is determined it has copyright ownership over the degree program materials under the work made for hire doctrine of the copyright Act of 1976 (the 1976 Act). (2) Should such situation come to litigation, the outcome would hinge on a court's interpretation of the work made for hire doctrine. It is generally known that traditional materials, such as lesson plans, created by teachers specifically for use in their classrooms fall within the scope of a teacher's employment (3) and, thus, are owned by the institutions that employ the teachers. However, less clear are nontraditional works, such as degree program materials created by teachers to sell to other institutions. In the realm of teacher-created works, some have argued that a "teacher exception" exists that prevents employers from asserting ownership over teacher-created works based on the works made for hire doctrine. Though scholars have weighed in on the exception's existence over the years, the courts have still not provided a clear answer. In either case, exception's strength is not reliable, and teachers should turn to other options if they wish to maintain ownership over their nontraditional educational works. This comment will begin with a discussion of the treatment of the work made for hire doctrine as it relates to teacher-created works, beginning with the doctrine's creation in the 1909 Copyright Act, its modification by the Copyright Act of 1976, and its current treatment today. Weaved throughout this history of the doctrine is a discussion about the so-called "teacher exception." This comment also discusses the views of three scholars, Russ VerSteeg, Nathanial S. Strauss, and Ashley Packard, who have each commented on the existence of the teacher exception. Their articles were published over several years and their arguments strengthen the overarching theme of this article. That is, the teacher exception cannot be relied on, and, based on what seems to be a trend of ending or restricting collective bargaining of public employees, teachers must rely on other options to maintain copyright ownership of their works. The final section discusses some of those options. I. STATE OF THE LAW The work made for hire doctrine has undergone several changes since its enactment. These changes have included not only explicit changes to the language of the doctrine in the Copyright Act, but also implicated the way courts have applied the doctrine. Despite these changes, questions still arise over who owns particular works created by employees. When such employees are teachers, the questions become even more complicated in light of the so- called "teacher exception." To answer some of these questions, a look into the history of the work made for hire doctrine is necessary. A. History of the Treatment of Intellectual Property Created by Teachers The work made for hire doctrine, which now asserts that an employer will assume copyright ownership over works created by an employee during the scope of his employment and over particular works that were specially commissioned, (4) found its birth in the Copyright Act of 1909 (the 1909 Act). …