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Ask Slashdot: Which License For School Products?
Reader TheodoreQSwiss breaks onto the page with this question: "The independent school where I serve as Dir. of Technology is in the middle of reworking their employee handbooks and would like to include a section on ownership of the intellectual property produced by employees of the school while doing work for the school. Ideally, both the school and the creator(s) would be able to retain rights to the use of the product. Do you have any recommendations on licenses that would support both parties involved?"
the WTFPL license. the only license anybody ever needs
Look into the Creative Commons system.
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Intellectual Property, like Cloud Computing, is a nebulous term. It covers at least three distinct areas: trademark law, copyright law, and patent law.
Ask me about repetitive DNA
ask a attorney or the school legal contact.
is used by every company I've worked for and is presented to new hires on their first day of work. It goes like this:
We bought it.
We paid for it.
AND IT'S OURS!
When an employee makes a discovery/work/patent/etc in their capacity as an employee, usually the employer own that IP.
The precedent is very different between, say, a K-5 elementary school and a research university. Rules are different in different countries.
Employee handbooks are almost never contracts, by the way. You need an explicit written agreement between employer and employee.
Assuming you mean K-12 school in the US... Is there a union contract? that might be relevant.
In general, works produced "in the course of your employment" are "works for hire" and belong to the employer, however, there are tricky aspects. For instance, you have to have an explicit patent assignment agreement (which often requires "consideration" for the assignment to be a valid separate contract, hence the traditional one dollar payment for the assignment). There's also tricky aspects when the employees are non exempt (hourly) vs exempt. If you're working at home, off the clock, you own what you produce, no matter if it happens to be aligned with what your employer's line of business is. However, if you use any of the employer's resources (trade secrets, tools, materials, etc.), the employer may automatically get what's called a "shop right" (a non-exclusive, non-transferable right to use it). resources, here, can mean things like that employer provided email account, by the way. If you're exempt (i.e. your pay does not depend on how many hours you work, etc) it's a bit more tricky, because theoretically, you're never "off the clock".
If your teachers are "independent contractors" then it's a whole lot more complex. You need an explicit agreement.
Summary: decide, in plain English, what you want. Hie thee to an attorney who knows about this stuff, and have them draw up an agreement. Have your employees execute the agreement. Don't try to do self-help by using some off the shelf agreement, because inevitably, you'll miss some important part. Take the off the shelf agreement to the attorney as an example, by all means.
Hey, if you're worried only about stuff YOU produce, you can use any agreement you want (GPL, CC, etc) because you, and only you, will bear the consequences of that decision. But you're talking about what a large number of people will do, and the last thing YOU want to be doing is sitting in depositions giving sworn testimony about how you didn't seek legal counsel and that's why your school is being sued for eleventy million dollars for copyright infringement.
If you think big money can be made for the school and the creators by selling copies of this work (which is often NOT the case), then my recommendation would be to have the school be the copyright owner (it will be by default given that its employees are doing a work-for-hire), that the school enters with the employees a contract for sharing the royalties (meaning that e.g. if the school sells the rights for printing a book, it will give a certain fraction of the royalties to the author), and that the school releases the work under a Creative Commons Non-Commercial (CC-BY-NC) license.
If, on the contrary, you believe no one will make much money by selling this work, then you can have the author release the work under a Creative Commons (CC-BY) license indicating that the attribution should be given to both the creator and the school. This will allow wide dissemination of the work, will allow others to build upon it, will prevent others from making profit at your expense (someone can print and sell copies, but anyone else can do it, so if copies are sold that would be at near-cost prices), and will make sure the employee and the school get due credit.
IANAL
First you need to decide the broad outlines of how rights should be assigned: Who holds the copyright and other IP? What rights get licensed to the other party and under what terms (perpetual/limited, revocable/irrevocable, exclusive/non-exclusive, transferable/non-transferable, sublicensable or not)? Should the general public or the school community be given a license as well?
Then talk to a lawyer about drawing up a clause for the employment contract, plus similar documentation for previous employees and students to sign that fits your needs.
As stated by others, by default works done by employees using an employer's resources and broadly related to the employer's business are considered works for hire and the rights will default to the employer, in this case the school. Works that aren't "broadly related" to the business could be considered misuse of the employer's resources for personal benefit, so basically the school owns everything by default. I'm not sure what the default is for students, as technically the school is providing services to the student for education. In order to give employees full rights in their work, the rights should either be fully transferred to the employee and licensed back to the school, or the employees should be given a perpetual, irrevocable, transferable license with sub-licensing rights to use the work as they see fit.
Or, if you are all feeling generous, have the school own the rights, but make the IT policy to release everything under the GPL.
There's a legal question here and an administrative one. Either way, this isn't a decision to be made and announced through the employee handbook. It's great though how you set out just to write a bit of documentation and you end up in a legal a philosophical minefield.
The legal question is who has the right of ownership over intellectual property, such as lesson plans, that teachers produce or use on the job. I imagine the precedents vary by your jurisdiction. Your school should look it up. The way you phrase the question, it sounds as if there aren't any explicit provisions in the teacher contracts that establish who owns what. Maybe it's time for the school to include a clause in the contract that makes the expectations and the legal situation clear.
But really the more important issue is that, again from the way you phrase your question, it sounds as if the school administration seems to expect to dictate terms of intellectual property ownership to its teachers. Regardless of whether they have the legal right to do that, it's just plain bad policy, a great way to pick an unnecessary fight. The administration should do what you're doing now, do some research and decide on a good model for a policy. Then they should bring the issue up at a faculty meeting, ask faculty what they want, give them a chance to go away and read about it, and then come back with their own proposal. Ideally, if you've got good administrators (sounds like they/you have good will, at least) who can negotiate well with faculty based on interests and not positions, then everyone leaves the room happy.
The wrong way to do it is for you, the Director of Technology, to make the decision, present it to the rest of the administration who accept it by default because they don't have any better ideas, and let the faculty know who owns their lesson plans by putting a handbook in their mailboxes at the start of the next term. The value of the intellectual property is either too small to be worth alienating employees or too valuable to approach sloppily.
The usual disclaimers: I'm not a lawyer or a teacher.
Being the school funded with "the people's" funds, I believe anything it produces should also be available to "the people" (this applies at least in public schools).
Why no go with public domain? The creator, the school, and anyone else can make use of such products. Or is the idea behind this to make profit? (was not specified in question).
It shouldn't be too hard to draw up a contract saying that both sides have copyright to the item and can independently do whatever they want with it, or that one side has the official copyright and the other has unlimited irrevocable license to distribute it. Something like this:
http://kamiaru.com/license/license.txt
Inappropriate captcha: inequity
If students sign a contract with the school to say that both parties assign full rights to one another in works that they create, then it doesn't matter what copyright law says. Contract trumps copyright. That's how the music industry works, for one thing.
"And the meaning of words; when they cease to function; when will it start worrying you?"
Here two tremendously successful examples for licenses applied by schools to what they, their employees and their students produce:
http://en.wikipedia.org/wiki/BSD_licenses
http://en.wikipedia.org/wiki/MIT_License
"While doing work for the school" needs to be better defined. Teachers "do work for the school" at home as well as on campus. They are professionals, and the boundary between what they are required to do and what they do because they want to is not always clear. If a teacher writes a textbook, this is not "work for the school." If a teacher writes a lesson plan, it probably is "work for the school." There is no clear boundary between these two things.
"Ideally, both the school and the creator(s) would be able to retain rights to the use of the product." What does "use of" mean? If the teacher writes a textbook, the teacher should not just be able to "use" it in his/her own classroom, he/she should be able to sell it and exploit it commercially.
If the principal writes an employee handbook, then clearly the employee handbook is a work made for hire, and the school should own it.
Asking what license to use is the wrong question. If the employee owns the copyright, then the choice of license is up to the employee, not you.
Find free books.
If the school receives public funds, then the public should own what they paid for, not the school.
Not only does the school AND the creators retain the rights to use the product, but so would anybody else. Other schools can then benefit and you can benefit from their input.
As an added bonus, nobody will be able to take away your rights to use it.
Unless your core business is selling software (not software related business) it should be the only option.
Don't fight for your country, if your country does not fight for you.
I was working as a grad student (back in the day) for a Computer Science department for a major University. During that time, some friends and I created a couple of massively multiplayer web browser games ... and we made quite a bit of money doing it. We had formed our own company, but we did (initially) do a lot of the work on campus ... either in public computer labs or in dorm rooms. We eventually bought our own headquarters, and completed our first game (and created all of our second game) there. We didn't make a penny while we were working on it at the University.
So ... my question to all of the slashdot community would be ... did the University have rights to it?
I would say "not at all".
My grad work was COMPLETELY unrelated to the work I was doing for our company, and the other partners (except 1) were all undergrads w/o scholarships. The other grad student (who was my first CS instructor .. which was ironic since I was the CEO of the company) was also doing grad work completely unrelated to our game.
My point is ... MANY very creative and inovative ideas and products are produced by people that need to either finish their education or make some sort of income while they work on these projects. If rules are put in place that prevent people from enjoying the fruits of their labor, then innovation will drastically slow down.
Provided that the IP you are working on isn't closely related to what your employer is paying you to do ... and provided you are using your own resources (or resources that anyone would have made available to them), then I just don't see how it would be right for someone else to take away your rights to your IP.
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Hi all - thanks for your responses. I'm the OP, and I wanted to add a bit for clarification:
Currently, we have no statements in any documents regarding the creation or ownership of IP, be it lesson plans, study books, whatever. This is our first foray into it and instead of just copy-pasting someone else's boilerplate, I thought it would be a great chance to do it correctly from the get go. I know we could just go look up what others are doing, but we don't want to do that.
By "doing work for the school," I mean, mainly, IP created during the normal work as faculty; i.e. curriculum/lesson plans, tests, handouts, study guides, even the rare times when a teacher basically makes their own textbook via years and years of teaching experience. A teacher that creates this kind of work, which most all do de facto, wouldn't have been hired by the school to create the IP, but to teach; the IP just follows as a means to do the teaching. Now we're concerned with what happens when, in this kind of situation, a teacher leaves the school and wants to take their work's products with them. It's true that the school was paying the for teacher to create the IP in a round-about kind of way, but it was also benefiting from the production of it while the teacher was creating and using it.
AmElder, thanks for your very thoughtful comment - we are indeed a school that values community input in most decisions, and this will be no different. I'm just the one taking on the research. As you can probably tell from my comments above, I feel very strongly that both the school and teacher have claims to the IP, and I would like to find out the best way to codify the guidelines that would ensure that.
Thanks again for the comments - keep 'em coming!
I swear, where do these small businesses that are in the business of doing one thing (education) think they have the right to claim ownership of every creative work produces by their employees? And in this case, does claiming ownership of the intellectual property produced by the school employees help them in their core function? Just because a teacher creates a course syllabus outlining the class schedule does not mean the school should own it, just that it can be used for a set of students for one year and if the teacher leaves for another school, he should be able to continue using the syllabus he wrote without getting permission of the "owner".
If none of the people involved have an ambition to make extra money, just releasing the IP under some Creative Commons license would do and make the materials available to other schools and students too.
If there is no consensus to do that, I personally feel that the teacher has the stronger claim. But even so, putting an automatic license for the school into the work contract seems only fair and would not hurt the teacher's interests much. After all, the worst case for the teacher would be losing sales to one school out of many.
C - the footgun of programming languages
As others have said, I'd talk to a lawyer instead of slashdot. That said, what we do where I work (CIO/Director of Technology at a university) is this: for students, if they wrote the code while a student employee, we own it. If they write it as part of a class, they own it. Effectively, this gets to "who paid for the time to write the program."
For faculty, it's different. Generally, faculty get to own what they write, since it usually falls under their research, which both the university and the faculty want to be publishable. In the case where we specifically might contract with a faculty to write something, we own it. But we go over those terms up front. And it's rare, anyway.
With staff, by default we own what they produce, since we hired them to write it. If we find something is particularly interesting, we may make arrangements to license it differently so they can release it. But the default is that the university owns it unless we decide not do. It's unfortunate for those really cool projects that have to go through the extra steps, but it makes the most sense. To keep it clean, I'd recommend this: if you want to make something that you own, do it on your own time.
If a part of their job and compensation comes from the idea that they will create educational materials, then by all means, write it into the contract.
If their job expectations, and again, pay, are commensurate with other school systems where this is not an expectation then I would recommend giving full ownership to the teacher. You might consider the caveat that the school gets to implement the product school-wide for free while the teacher is employed there. What better way of spurring teachers to create great materials and then using that to retain your talent, without having to pay for it? Else why not just demand that school purchase x educational product, and never create one of your own?
My caveat: I'm horribly biased, IAATeacher.
m!
If the school receives ANY public funding what so ever, all works produced by it should be public domain.
GPL is not a proper license to use as you're intentionally fucking over multiple people to push an agenda that may not be shared by everyone contributing funding. You more or less can't use anything that takes ANY rights away from others and continue to be fair to the tax payers.
Anything other than that really isn't fair to anyone who contributed to the public funds given to the school. BSD is closer, but still may conflict for trivial reasons with one of the tax payers who contributed, so public domain is the only logical option.
As the post above who states GPL is the only obvious choice, thats simply because you want to use this as a tool to promote your agenda and your political ideals, which is exactly what SHOULD NOT HAPPEN with ANYTHING that receives from PUBLIC FUNDING (anything I contribute to as required by law). GPL prevents the work from being used in far too many useful ways. I really wish GPL morons would get a clue and realize that GPL is as bad for innovation as the patent system for the exact same reasons.
If the school isn't publicly funded, then it really depends on what your school wants to accomplish and what values you are trying to teach.
Harvards and Yales are more likely to want to use proprietary licenses, and that fits more along with their own teachings.
Eitherway, your school has a charter that defines what it is trying to impart on its students both from a pure educational standpoint and from a moral stand point ... that chart most likely actually defines EXACTLY what license you should be using in order to fit within its goal.
Remember, you aren't picking the license YOU WANT to win here, you're supposed to be picking a license that fits the school.
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The problem itself is simple. One party owns the copyright in the work and the other party gets an unrestricted, irrevocable (notice I said irrevocable and not "perpetual" - although long, copyright duration is not perpetual), non-exclusive license, including the right to sublicense and make derivative works to the work without the obligation to account to the other party. You can battle about which party owns and which party is licensed but with a license this broad, it is almost the same. However, 35 years from now when an assignment may be terminated (under US law if in the US) which party is which will make a difference.
This is a situation where one or two hours of time from an IP attorney who understands copyright licensing will avoid a LOT of issues later. Don't waste time looking for a prepackaged license that you may alter in ways that have unintended consequences later. This is a one-page agreement. Hire a lawyer to draft it for you.
Laws affecting technology will always be bad until enough techies become lawyers.
The school is paying the teacher a salary or to do some work on an hourly basis. All the benefits from that work, done at the school, using school equipment, during school "time" belong to the school as a work for hire. The teacher gets and is entitled to absolutely nothing. Tell them that point blank in the employee handbook. If they want to retain rights to the IP - then they get to work on their own time, on their own equipment, and use their own resources to develop it.