Copyright on educational material: for the teacher or for the employer?

The district court of Oost-Brabant recently ruled on the question: to whom does the copyright on educational material written by an HBO teacher belong? Does the copyright belong to the teacher herself or to the educational institution, as her employer? You can read about it in our post:

Facts

The case concerns a teacher at an HBO institute, who makes assignments for her students. At the request of her department, the teacher compiles her own assignments, those of her colleagues and those from an existing textbook.

The course where the teacher teaches provides the students with a digital collection of assignments. This contains large parts of the teacher's manual. The teacher argued that she was the copyright holder. She argues that she did the work in her spare time.

What does the law say?

Starting point on this issue is Section 7 of the Copyright Act. There we read that if the work, performed in the service of someone else, consists of producing certain works, the copyright owner is the person in whose service the works were produced. However, parties can make other agreements in this regard. In other words, as a rule, the copyright lies with the employer!

In this case, the relevant collective agreement also provides that the copyright belongs to the employer if the 'manufacture of a work' (think of writing a book) was performed by the employee in the performance of his duties for the benefit of the employer.

What does the court rule?

The court ruled as follows:

'It is an established fact that, in view of the job description of teacher (...), it was part of [employee's] core task to provide inspiring and interactive teaching, design learning arrangements and draw up research assignments. Fontys' assertion that it is up to the lecturer to do so in a way the lecturer deems appropriate has not been refuted. [Employee] has stated that before she joined Fontys, she already made many assignments for her own purposes and that when she joined Fontys, she started making assignments for her students. Her statement shows that she did this in the interest of the education she was to give and to meet the needs of her students and that other teachers also made assignments for their classes. According to her statement, [employee] started combining the separate assignments at the request of a Mr [name] colleague who was a member of the same department as [employee], so that the whole set of assignments could also be used by other teachers within the department. That compilation included exercises made by [employee] as well as exercises from her colleagues and from the VAPRO book, an existing manual. Elaborations were also added by [colleague], who started it, and [employee] and thus the Books came into being. [Employee] copied the Books at Fontys' expense and provided them to students. This was done for the purpose of fulfilling the teaching duties of the lecturers of the department, [Employee] and her colleagues. [Employee] and [colleague] requested extra hours for this in 2016), according to [Employee] for changes that were made not in their own time but in Fontys' time. They did not receive these extra hours but continued with this work anyway.'

In view of this, the court rules that the making of task bundle took place within the framework of the lecturer's job and employment. This is not altered by the fact that the work was allegedly done largely in spare time, there were no instructions and Fontys (as employer) had no knowledge of it. Making the set of assignments was within the teacher's teaching duties.

You can read the ruling here.

Conclusion

In other words: the teacher made the bundle in the context of her position and employment at the HBO institution. The copyright therefore belongs to the educational institution! To avoid ambiguity and discussions, we recommend always including a provision on intellectual property rights (including copyright) in the employment contract itself, just to be sure.

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