Last night I spent some time (too much time?) trawling round the internet looking at the law on copyright and intellectual property rights. I ended up with a headache. Again.
It’s all Julie Arrol’s fault really. Having been caught up in the IPR/Copyright whirlwind stoked up by Neil Winton here and here last year, I had managed to get myself distracted by many, many other things and had kind of let my IPR detective work slide. I had done a bit of half-hearted investigation, but hadn’t really got anywhere very fast. Julie re-ignited the whole thing on Twitter yesterday with a very simple question about ownership of resources. Having had a right good rummage through my terms & conditions of employment and drawn a blank on the IPR issue, I was intrigued by a response Julie got from Katie Barrowman suggesting that because the IPR issue was a fact of employment law, it didn’t need to be written into your contract. I asked Katie if she had a reference to back that up, and she pointed me towards this webpage from JISC Legal Information offering an overview of IPR law . In the Copyright Ownership section, they write:
Copyright ownership in an employer-employee relationship: Under s 11.2 of the CPDA, the basic legal position is that copyright of works created during the course of employment will be owned by the employer unless an agreement to the contrary is in place.
Now, as anyone who knows me will testify, that is just a bit too vague and wooly for me, so I went hunting down the exact law that was being referenced. Turns out, as anyone who knows anything about copyright could tell you, that copyright law in the UK is governed by the Copyrights, Designs and Patents Act of 1988. JISC had kindly offered the location of the offending clause, 11.2, and so I went straight to it. It tells us that:
Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.
In situations where this is not the case, the Act is equally clear (in section 11.1):
The author of a work is the first owner of any copyright in it
The language used in the Act did not convince me that the issue was as clear cut as was suggested to Katie, so I did what any self-respecting 21st Century citizen would do – I Googled it.
That’s when things got a bit more complicated.
The Intellectual Property Office certainly don’t think it is as black and white as we have been led to believe. They point out that:
In the course of employment is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under ‘contract of service’.
The law firm Ashby Cohen also challenge the straightforward “Employer owns everything” assumption. They write that:
If an employee wishes to retain the ownership of their intellectual property themselves, they should create the work in their own time and away from the workplace in order to avoid any future disputes. If an employee creates something in their own time which they later go on to use in the course of their employment to benefit their employer, it would be prudent for them to agree up front (and preferably in writing) with their employer that they will retain the copyright on their creation.
They go on to suggest that it may be advisable for an employee to negotiate a contractual clause allowing them to retain the ownership of all intellectual property that they create, unless it is specifically created at the behest of their employer for the purposes of their business. The Employment Tribunal Claims website suggests a similar tactic to ‘avoid’ confrontation, but there is some debate as to how willing employers would be to allow this. Ashby Cohen also have concerns regarding this, stating that:
Employers may sometimes attempt to insert much more comprehensive terms into employment contracts regarding intellectual copyright, sometimes even attempting to claim ownership over everything the employee produces while they are employed by that organisation, regardless of where or when it was created. Such needlessly restrictive clauses should be challenged before the contract is signed in order to prevent any future legal wranglings.
Of course, they do have a vested interest, which becomes plain as they go on to state that in such situations, specialist legal advice is essential (and no doubt expensive). Guess who can provide such advice (no prize available).
The issue is also examined here by Paul Bicknell. He highlights the inconsistencies in the law, citing contradictory case law backing up both sides of the dispute before again suggesting that:
The issues above can be solved by an agreement whether oral, express or implied can between employer and employee, which vests first ownership in the employee.
The Creative Commons solution suggested by both Ewan McIntosh (in a comment on Neil’s blog) and Theo Kuchel is a decent work around. Although Julie had questioned whether you were able to attribute a CC licence to a piece of work that you didn’t actually own the IPR for the work in the first place, my understanding is that if you use a Share Alike CC resource (picture, animation, video, sound clip…) in creating your own work, then you are bound to make your work available under the same licence:
Share Alike — If you alter, transform, or build upon this work, you may distribute the resulting work only under a licence identical to this one.
Whilst I am sure for many teachers in many situations that is a perfectly acceptable solution, it still fails to address the fundamentals of the IPR question. What if you choose to make a resource in your own time, lets say a textbook, producing all your own copy and examples and taking all your own pictures to put in it. The way things are at the moment, in the absence of a clear, formal, written agreement you are caught between surrendering much of your IPR altogether via Creative Commons or risking getting into a legal battle with your employer over who owns the IPR. Not much of a choice, really.
And don’t think it doesn’t happen – the comments on Neil’s post illustrate that it most certainly can and does.
I think Neil’s idea of building a clearer picture of the situation across the country is a good one. This issue isn’t going to go away, if anything it’s just going to get bigger, and we need to find a solution, and it would be easier if the solution applied to every teacher rather than each individual teacher fighting their own case. If people are willing to take the issue to the SNCT, Unions or the Scottish Government then let’s get them all the information they need.
Anyone know a good lawyer?