Would me or my employer own the copyright?

'Is it legal', 'can I do this' type questions and discussions.
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Would me or my employer own the copyright?

Post by db6279 »

I am a teacher in charge of a subject department at a college. I would like to make a set of instructional videos (similar to khan academy) that also have interactive questions in there to check learning, combined with a workbook of notes/questions. I would then intend to sell these resources, so need to ensure I own the copyright. This would be in the subject that I teach, but I would create them in my own time. It would probably take me between 150-200 hours of work to create everything I would like; so it is not a job that could be done in addition to my normal duties during my normal working hours. I would also purchase my own laptop and software to do the job, but I would like to use my college editions of Publisher and OneNote (albeit on my own computer).

My contract states the usual position that anything done in the course of my employment would belong to my employer. It also states "for the avoidance of doubt, the copyright in course materials produced by you for the purposes of a course run by the college shall belong to the college."

I am assuming the above paragraph relates to things produced during my normal routine such as powerpoints or notes and not to a project like I have in mind. That said, since I believe the resources I am going to create would improve the learning of my students it would be unfair of me not to use them in my normal lessons.

I am unsure how to proceed. Is it likely that my employer would own the copyright given my situation?

I am also in two minds as to whether to approach my employer before I start creating this project. However, it has been pointed out to me that my employer could then direct me to make these videos and, even knowing that I could not do it during my normal working day, if I then created outside of work hours they would own the copyright.

Many thanks for any responses provided.
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Post by AndyJ »

Hi db6279,

This can be a tricky area, because what your employer has put in your contract of employment, is just that - a contract. The wording seems to go a little beyond what copyright law says, namely that where a work is 'made by an employee in the course of his employment' the employer shall be the first owner of the copyright in that work. However the clause in your contract is perfectly legal and I think a court would tend to read that clause pretty much the way it is written, and find it neither oppressive nor unreasonable. The normal counter-balance to this sort of intellectual property clause is restraint of trade, but I don't think that in the circumstances the clause can be interpreted in that way.

So since your contract enlarges the category of work which could be subject to copyright passing to the employer, I think you will certainly need to approach your college and see what they say about your proposed project, if you intend to use it in the college.. If you decided to make the videos etc but didn't use them as part of your instruction at the college, then I think you could safely retain the copyright, because the project would not meet the definition, either in the law, or in your contract.

Some many years ago there were two separate court cases which have largely defined the parameters for deciding this sort of case. In the first (Stevenson Jordan and Harrison v MacDonald and Evans [1952]) an accountant prepared and gave some lectures on accountancy to some outside bodies in his spare time. His employer claimed the copyright. However the court found for the employee, saying that his work duties did not require him to prepare and give lectures and so the lectures did not fall into the category of work made in the course of employment. In the second case (Byrne v. Statist Co [1914] 1 K.B. 622) a journalist (Byrne) used his language skills to translate a speech into English as a private commission for a friend and the resulting text appeared as part of an advert in the journalist's paper. Another journal (Statist) republished the article without permission and when they were sued by the journalist, they contended that he did not own the copyright and that it belonged to his employer, the newspaper's publisher. But again the court sided with the journalist saying that although he may have used his language skills within his employment duties, that did not mean that he couldn't also use them for private purposes unconnected with his work. The fact that the translation appeared in the newspaper was as a result of the friend placing the advert, and so it did not fall within the journalist's normal duties for the paper, therefore he owned the copyright and had standing to bring the case against the other journal.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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