Supplementary Scenario - Content Creation and Copyright

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HOST
Welcome to this podcast exploring Canadian copyright law and User Rights. 
In this podcast we will take you through a fictional scenario that illustrates how copyright and Creative Commons licensing influence K-12 educators in their use of educational resources in their teaching. 
Please note that the scenario in the podcast is best understood if listeners know  the definitions of Canadian copyright and Fair Dealing.  
We spoke with Jim Swanson, a Calgary lawyer who specializes in Intellectual Property and copyright law to address the issues highlighted in this scenario.
Note also that although the following material covers Canadian copyright law, it is not to be taken as legal advice. Copyright law is constantly evolving and Jim’s remarks may not be applicable in all cases.
This scenario explores what happens when a teacher creates content. Many teachers are creative and frequently respond to their teaching situations by producing resources. 
In this example a grade 8 teacher has been asked to create a Science 8 course in the Moodle Learning Management System. The teacher is passionate about art and design and brought previously created content from her home computer with no copyright license attached. At the end of the school year, the principal creates a copy of the course to show other educators at an education conference. The teacher and the principal are presenting together. One of the participants at the conference asks for a copy of the course. The principal says, “I’m sorry it is not for sale”.  The teacher says, “Sure- it will cost you $150.00” 
Because no Creative Commons licensing was used, We asked Jim 
Can the course be sold? 
And who legally owns the course?


JIM SWANSON
This is something I run into a lot in my practice. The default owner of the copyright in any original work is the author, the human who creates it. One exception to that is that works created in the course of employment by an employee can be owned by the employer as the first owner of the copyright. So if the teacher created a course in the course of their employment by the school or the school division the teacher probably is not the owner of the copyrights and the school or the school division in fact owns those rights. That’s an exception to the general rule. But only in the part of the course where the teacher authored the course in the course of their employment.  The previously created content that was mentioned that the teacher had at home may be subject to the teacher’s own copyright or it could be subject to  the copyrights of their employer at the time that prior content was created. So it  could be the same school, it could be a different school, or it could be the teacher’s own personal copyright if the content was created outside of the employment relationship. So, for example, if the teacher is doing drawings at home and that’s not part of their job as a teacher they probably own those copyrights personally. So if the teacher owns the copyright to some of that material that’s now been mingled into the course along with stuff that maybe the principal created or some other contributor, or even if it’s just the teacher, that the teacher created within the course of their employment, we now have what’s probably a compilation; even though it may come from the same person. So it’s a compilation of work the teacher previously created, that the teacher themselves may own, and of work the teacher created in the course of their employment that the school probably owns. DOing that doesn’t affect the original copyright in terms of the teachers content from home, but the new content, the entire course, which includes some of the teacher’s content has a new copyright that attaches to the compilation. So it’s like a textbook with an editor; the editor has some copyright in the compilation but the underlying chapters in the textbook are each subject to the copyright of their own authors or whoever they assign that copyright to.
So in this scenario, it sounds like the principal didn’t author part of the course, so the principal doesn’t have a copyright interest, but the school may or may not depending on how employment affects copyright ownership in the facts of this case. So if the school holds some of the copyright or even all of the copyright to the course, then the school would decide how the course can be commercialized. And the fact that the teacher holds the copyright of part of the course, assuming that to be the case, means the school needs permission from the teacher to license copies of the entire course, or the school would have to remove the portion to which they don’t own the rights. So depending on whether the teacher owns the prior content that was created it’s something you have to consider. Because we get kind of a hybrid here where neither party can fully consent to the entire course being sold unless they come up with some kind of agreement amongst themselves. So if the teacher owns the distributed content the school needs permission from the teacher, and if the school owns the entire course then the teacher really has no say over what the school does with it. Subject to possibly the Moral Rights to the teacher if he or she didn’t get attribution. So when you have works that are either compilations or that are joint works created by 2 or more owners the parties have to agree. So if you’re going to create or accept a compilation, which this course probably is, you need to think about the underlying rights. 
 But the exception to this is that work that is created in the course of employment by an employee can be owned by the employer. If a teacher created a course while being employed, the teacher is likely not the owner of the copyright and the school division in fact owns those rights but ONLY in the parts where the teacher authored the course as part of his/her employment ( otherwise the school board or school will own the copyright). The previously created content that the teacher had at home may be subject to the teacher’s own copyright if that content was created outside of the employment relationship. So if a teacher is doing drawings at home and that is not part of their job as a teacher then they own the copyright to the drawings. So if the teacher owns the copyright that has now been mingled into the course, and others such as the principal, other teachers, or that teacher in the course of his/her employment have contributed to the course, you now have a compilation, even though the work may have come from the same person. So this is like a textbook with an editor, the compilation is with the editor but the copyright for each of the chapters is subject to each individual author. In this case, the principal did not author the part of the course so the principal does not have a copyright  but the school may. If the school holds some of the copyright, then the school would hold how some of the course can be commercialized. However, because some of the course is copyrighted by the teacher, the school needs permission from the teacher to commercialize the course, or the school needs to remove the parts to which they do not hold the rights. This is a hybrid and neither party can agree to the course being sold unless they can come up with an agreement among themselves. So if the teacher owns the contributed content, the school needs permission from the teacher and if the school owns the entire course then the teacher really has no say what the school does with it, subject perhaps to the moral rights of the teacher if he or she did not get attribution. So when you have works that are either compilations or contributions from two or more owners, the parties have to agree. So if you are going to agree to a compilation then you need to agree to the undergoing rights.


HOST
This scenario highlights how important it is for educators to understand copyright and Creative Commons licensing, as well as the complexity of ownership in teacher-generated resources.
We hope you have enjoyed listening to this podcast and will take some time to explore other podcasts in this series, including additional scenarios featuring K-12 teachers and how their creation and use of educational resources may be influenced by Canadian Copyright Law 
This resource was funded by the Alberta Open Educational Resources Initiative, which is made possible through an investment from the Alberta government.
In keeping with principals of Open Education, this podcast is available under an open license, CC-by-SA.
The music "AM-Trans" and "Cash Rules" is licensed under a Creative Commons Attribution, Share-alike 4.0 International license.



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