Who owns the teaching resources you create?
Okay, you’ve heard that teachers can make some extra money when they sell the resources they have created for their lessons. You figure that as you made the resources at home, in the evening or at weekends, on your own computer you must surely own the copyright. Right?
Wrong. Copyright law is a tricky beast and just because you created them doesn’t necessarily mean you have the rights to sell them.
We’ll start with what the copyright laws state in the UK. Please remember that whilst I am experienced and have been selling teaching resources since 2012, I am not a copyright lawyer and have no specific legal training so if you have an important question on this topic, you should seek independent legal advice.
How does the UK Copyright Law effect teacher sellers?
There are a few important areas you must be aware of when creating teaching resources.
On the UK Government website they explain exactly how copyright protects your work.
On this page it says “Copyright protects your work and stops others from using it without your permission. You get copyright protection automatically - you don’t have to apply or pay a fee.” Sounds lovely doesn’t it?
It also says “Copyright prevents people from: copying your work, distributing copies of it, whether free of charge or for sale”. Wonderful. There you go, copyright will stop people from stealing your work and selling it or sharing it as if it is their own. Sounds perfect.
Most teacher sellers read that and think “Job done, I own my teaching resource as I created them and therefore I own the copyright and can sell or share them as I wish.”
But… hold on. It isn’t that simple. You need to delve a little deeper and read further than just the first page to get the full story and this is where some teacher sellers get a shock and misinformation is spread.
There is another page on the UK Government’s website called “Ownership of copyright works” that changes things a little.
This says “In the case of literary, dramatic, musical or artistic works, the author or creator of the work is USUALLY the first owner of any copyright in it.” Note the rather worrying word “usually”.
Works created for an employer
A little further down the page it states “Where a literary, dramatic, musical or artistic work, or a film, 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).”
Hmmmm, “his employer” is the “first owner” of the copyright. But what does that actually mean?
Being the “first owner” means that your employer is automatically given the copyright. So even if it doesn’t say it in your employment contract, the law is automatically giving the rights to the employer. It doesn’t need to outline that in your contract as it is classed as a given – the statute takes precedence and is automatically the case unless your contract states otherwise.
But what does that mean for teacher sellers?
It means that if you are employed by a school (it doesn’t matter if it is full time or part time) and you are creating teaching resources as part of your job that you use in your own classroom to help you perform your job, then your employer (the school) automatically owns the copyright.
It does not matter where or when you create those resources or even if you create them on your own computer and in your own time. This is always the case unless you have it written into your contract or you have a written statement from the head teacher that gives you the copyright.
When the law is deciding if you are classed as an employee or not, they look at if you are working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor). If you are classed as an employee (you get regularly paid by the school and have an employment contract) then your employer automatically owns the copyright of the teaching resources you create.
It doesn’t matter where or when you create those resources. If you use them in your classroom as part of your job (and lets face it that is probably why you created them) then your school can legally claim ownership and you have no right to sell or share them without their permission.
But hang on… what about if I'm not using them in my classroom?
Well, in that case, no problem. If you wrote a book that was not using any of the resources that you use in your classroom then that is separate to the writing you are doing for your job so is not owned by the school. However, it does need to be completely separate and not include any of those resources that you are creating for your classroom.
For instance, and English teacher could write a steamy erotic novel and sell that on Amazon and the school can not claim any rights over that book as it is nothing to do with their teaching job.
Similarly, a maths teacher could be asked to co-write a maths textbook. As long as they don’t include any of the resources that they use in their classroom and are writing it completely from scratch then the school cannot claim copyright on that book.
However, if a maths teacher wrote a maths textbook and included resources they wrote and use in their classroom then they would have to ask permission from the school if they want to include them in the book because the school legally owns the copyright to those resources.
For teacher sellers, if they want to sell or share resources they have created and use in their classroom they would need to ask permission from the head teacher because the school legally owns the copyright to those resources unless you have a written agreement that gives you copyright.
If you create a teaching resource to sell for a different subject (for instance French resources when you only teach Spanish) then no problem; they are not used in your classroom so are not owned by the school.
If you create teaching resources to sell that are for a different age range then no problem as you will not be using them in your classroom so are not seen as being part of your teaching role.
It only affects those teaching resources that you have created and that you have used in your classroom because they are seen as having been created as part of your teaching job.
Can’t I just change them a little bit and still sell them?
No. They would need to be significantly different, so you cannot use the same text, examples or activities in your classroom. It is not enough to simply change the font, add a border and alter the artwork. They need to be completely unrecognisable from the ones that you use in your classroom. In which case you may as well create something totally unique in the first place.
Can I create them for my teacher seller business first and then use it in my classroom after?
Hmmm, this is a fuzzy area. If you create your teaching resource and put it in your shop first and technically you then purchase them from your store it is treated like any other purchased resource. You, as a teacher, then don’t own the copyright just like you don’t own the copyright of any other resource you buy from TpT or TES. However, the original creator (you) owns the copyright.
But if you use them without buying them first then arguably you are using them in your classroom as the teacher and not as a paid for resource so your employer would own them.
See, it gets a little bit murky.
If your school area expects any paid for resources you use to go through a purchasing department then you need to follow that procedure and make sure it is purchased correctly in order to separate you the customer from you the creator. If you don’t buy them and simply use them, then it could be seen that you created them for your school as explained above and they own the copyright even if you put them in your store months or years earlier.
But this is a grey area with very little case law on which to base a conclusion so I can’t recommend you proceeding down this route.
What if I'm not employed by a school?
Perfect, no problem. You own the copyright as you are not an employee so your teaching resources are your own.
I'm an employee, what can I do about it?
There are a couple of things you can do:
If you want to sell or share the teaching resources that you are using in your classroom then you can ask for the copyright to them. Write to your head teacher (only they have the authority to grant this, not just your best mate in the staff room) and ask for the copyright on all the teaching resources you create whilst employed by them. You need to get their agreement in writing. You could request to have this written into your employment contract but as long as you get it in writing and keep that somewhere safe it is not necessary to have it in your contract.
Create teaching resources that are not related to your role as a teacher (either for a different subject or age group).
What about teacher sellers outside the UK?
Well, the laws in the US and Australia are saying the same thing.
In the US Government copyright law it states "Only the author or those deriving rights from the author can rightfully claim copyright. There is, however, an exception to this principle: 'works made for hire. If a work is made for hire, AN EMPLOYER IS CONSIDERED THE AUTHOR even if an employee actually created the work. The employer can be a firm, an organization, or an individual”.
It is basically saying the same thing as the UK copyright law. If you are an employee and create the teaching resources that you want to use as part of your teaching job then your employer owns the copyright and you are not allowed to sell or share them without your employer’s permission.
The Australia IP law states (IP = Intellectual Property which is basically another name for copyright) “In Australia, the employer owns the IP created by an employee if it is related to the employer’s business, unless the employment contract stipulates otherwise.” Yep, it is the same old story, the employer owns the rights unless otherwise stated.
The law is on the employer’s side when it comes to copyright. Teacher sellers may not like it but that is the case.
Some may try to twist and turn their way out of it by trying to find a loophole but the laws are very clear. If you are a teacher who is employed by a school, your employer owns the right to those teaching resources you create and use in your classroom.
There are things you can do but by far the best one is to ASK FOR THE COPYRIGHT OF THE RESOURCES YOU CREATE and GET IT IN WRITING.
Schools are starting to wise up to the fact that they own this huge resource bank and can make money from it so it is important to get permission as soon as you can.
Don’t try to wiggle your way out of it, don’t try to find a loophole, just do the right thing and ask for permission.
If they say “No”, then you can’t sell those resources... but there is nothing stopping you from creating and selling other resources that are not for your classroom.
If you would like some ready to use teaching resources, without having to create them yourself, have a look at these...