Copyright of IP created by school employees

The June issue (paywalled, also looks awful online for some reason) of STA News (the NZSTA periodical) included an article “Collaborative Copyright”, regarding the ownership of intellectual property created by teachers and other school employees.  This topic has been getting a lot of attention (on Twitter, anyway) for a while now.

To be clear, I’m a big fan of Creative Commons (and have released things I’ve created under CC licenses for a decade now), of collaboration, and of giving education employees control over intellectual property that they create.  In 2012, not long after I joined the Board at Ahuroa School, I made sure that the board considered this issue, and suggested Creative Commons licenses as one possible way forward (the board decided to go with another option I suggested, of gifting the property to the staff in exchange for a permanent license to use it).

However, there are parts of the article that bug me.  The worst part is in “setting the scene”:

Under New Zealand law, like many other countries, anything that is created by an employee in the course of their work for their employer is regarded as belonging to the employer. This makes absolute sense in the context where, for example, the employee is producing biscuits or cereal at a factory – the factory and its output logically belong to the person or company.

It all makes rather less sense though when the work being done is “knowledge work” that depends on the employee’s own personal skills and experience to create something unique or to provide professional services – like an inventor, a painter, a professional sportsperson, a surgeon or lawyer or teacher.

I am one of these “knowledge workers”, and employ others, providing professional services (software development, design, management, research).  Just because I’m not producing a biscuit that you can eat, doesn’t mean that my employer should be required to give me ownership of what they pay me to make.  The same applies to these other jobs – if a sportsperson develops some sort of innovative gameplay, then the employer is just as entitled to the product of their paid work as of the surgeon that develops a new technique or the software that I write.

It’s great to share – e.g. I contribute work as open-source projects when I can, and encourage people that pay me to produce work to do the same.  However, that choice belongs to the person that is paying for the work to be done, not the person who does the work.  The biscuit isn’t owned by the employer just because they provided the raw ingredients, but because they provided (by paying for it) the labour it took to make it.  If you take away all the ingredients except for the labour, that doesn’t mean that the ownership should suddenly transfer.

I realise that there are people who disagree with this, and have fairly extreme views about all knowledge being free.  However, I don’t believe that NZSTA are fairly representing boards by espousing that view.

There are much better reasons for intellectual property that is created by school employees to be ‘naturally’ something that should be shared.  In particular:

  • Although the board is the employer, the vast majority of employees are funded via the government (a few will be funded via some other source of income that a board has, but I’ll ignore that for now).  The government’s money comes from (approximately) the people of the country, and so it’s reasonable to expect that anything that the government produces should be available at reasonable cost to the people of the country.  For example, this is the same argument that says that government-funded research findings should be freely available.  I absolutely agree with this, and it is a convincing argument for making teacher output freely available.
  • Most of what these employees are making is incidental to their primary work, educating our children.  I am specifically employed to create intellectual property; teachers are not.  A painter is specifically employed to create intellectual property – a sportsperson possibly not.  I don’t think that being incidental is a compelling argument for sharing on its own, but it adds weight to an argument.
  • The majority of the intellectual property that these employees are making is of low or no monetary value (which is not to say that it is worthless).  Those blog posts, tweets, and Facebook posts that teachers are writing are most likely not going to be a source of income for the school.  The worksheets, assignment outlines, and plot summaries are fairly unlikely to generate any income either.  If you can share something at no cost to yourself, then that’s also a compelling argument to do it.

If you are going to try and convince someone to make a positive change, then it works much better if you start from a balanced, accurate, position.

Note that these are my views, not necessarily those of Ahuroa School.  IANAL.

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