You can sell anything online, can’t you? There’s a lesson to be learned here

There has been some publicity this week about teachers selling their lesson plans online (http://www.bbc.co.uk/news/education-32286564). The report suggests that in the US a small number of teacher millionaires have been created. Good for them if it brings a little more income, most might think. But wait just one minute: aren’t teachers generally employees? Indeed they are. So in general, who do the lesson plans belong to – the teacher or their employer?

Given the reference to learning and lessons it might be appropriate to hark back to the Latin maxim, “nemo dat quod non habet”: essentially you can’t give away (or sell) what isn’t yours.  There is a very strong case for saying that the school or college which employs the teacher has already paid for such lesson plans as it is part of the teacher’s standard work product.

Certainly there is intellectual property in such works. As with anything novel, IP rights arise when developing new products or manufacturing processes but also in relation to other creative endeavours of a more literary, artistic or dramatic nature. It is essential to identify who owns the rights and where there is doubt as to whether an employee or their employer owns IP rights in the fruits of their work, UK legislation generally favours employers.

There are a range of examples from the Patents Act 1977 (PA 1977), the Copyright, Designs and Patents Act 1988 (CDPA), and other legislation which give an employer automatic ownership of patents, copyright, database rights, unregistered designs and registered designs in works created by its employees in certain circumstances.  There are a number of differences however and for that reason, many employment contracts contain express provisions assigning ownership to the employer to avoid any doubt.

It may well be that in the education sector employers adopt a much more open and sharing approach, but will that necessarily be the case if a full-time teacher starts to make more than just a little “pin money” by selling plans prepared for their employer? Money is a great motivator and I suggest in the event of something like the US experience, then a financially pressed school might well think that such an income stream ought to be theirs and not that of their employee.

Food for thought for those in the education sector and another example of an issue which can be rapidly solved by carefully worded contractual provisions.

For more information contact Philip Paget in the Gordons employment team.