“So thrilled with one of my pupil’s essays - look at this!”

It’s a familiar social media post. There’s a nice photo of an essay or other piece of work. A teacher is justifiably proud of the child’s efforts. Everyone makes nice comments.

But are you actually allowed to share that pupil’s work without their consent?

In fact, what actually are you allowed to do with a pupil’s work without their consent - display it in school? Put it on a parent platform? Mark it?

We spoke to leading copyright law expert Maninder Gill, head of intellectual property and partner at law firm Simons Muirhead and Burton, to find out what teachers need to know about who owns a pupil’s work.  

Tes: As soon as a child produces a piece of work, and in the absence of an explicit permission from the child to the teacher or school, does the child own the copyright for that piece of work?

Maninder: The principal legislation relating to copyright is the Copyright, Designs and Patents Act 1988.

Under the Act, the creator is usually the first owner of any literary, dramatic, musical or artistic works, except where such works are made by employees.

There is nothing in the Act that relates specifically to ownership of copyright in works created by students. Therefore, the normal rules of ownership will apply.

As soon as a child produces a piece of work, and in the absence of explicit permission from the child/child’s parents, the child owns the copyright for that piece of work.

However, any copyright in a work created by a third party that has been copied by the child and included in the child’s work, like a photograph, will still be owned by that third party and their consent will also be required for any copying.

Some universities, colleges and schools may ask that the students assign their copyright over to the establishment when enrolling or may require a royalty free licence to use any works created by students. In the absence of any such contract or licence, the student would own the copyright. 

A school may be able to claim joint ownership of the child’s work if its employee, such as a teacher, has made a substantial contribution to that work.

Tes: So does this mean that, in effect, parents need to grant any permissions to the school on behalf of the pupil?

Maninder: Yes, permission from the parents should be obtained.

Tes: In practical terms, what does not having that permission restrict a teacher from doing - publishing that work on social media? Publishing it in books? Providing it to third parties for research or analysis? Putting it on a display board in the school or into a school brochure?

Maninder: In the absence of any specific licence granted - eg, as part of the terms and conditions of enrolment - teachers should get the child’s parents’ consent before doing any of these things (and also consider getting consent for use of all copyright works that may be created by the child in the future), but they should also be aware of, and respect, any third party intellectual property rights and all applicable data protection and privacy rights.

Subject to a few specific exceptions, permission is required from the copyright owner before doing any of the following:

(a) Copying the work.

(b) Issuing copies of the work.

(c) Renting or lending the work.

(d) Performing, showing or playing the work.

(d) Communicating the work.

(e) Making an adaptation of the work or doing any of the above in relation to an adaptation.

These are “acts restricted by copyright”.

Tes: Would letters to teachers from students be covered in the above? Or social media private messages?

Maninder: Yes, normal copyright rules apply to letters to teachers from students and to social media private messages, as will data protection and privacy rules.

Tes: Does anonymity void the copyright - ie, if the teacher hides the name and identifiable features, does that make it OK?

Maninder: No, this is irrelevant for assessing if copyright infringement has occurred.

Tes: If it is possible to use/publish a proportion of that work without permission, how much is permissible?

Maninder: Anyone is allowed to use/publish parts of a copyright work, as long as they don’t use a “substantial part” of the work.

Unfortunately, there is no rule as to what percentage of a work may be copied. The courts have instead said that calculation of what amounts to a substantial part is based on the quality not the quantity of the amount of the work used.

It would be much safer to ensure that you only use parts of a copyright work without a licence where such use falls within one or more of the following exceptions to copyright (I have provided the most relevant to teachers only).

In each of these exceptions, however, only a limited amount of copying would be allowed and sufficient acknowledgement of the title (if any) and author of the work should generally be provided.

Fair Dealing

The use should amount to “fair dealing”, which is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. Relevant factors include:

• Does using the work affect the market/commercial exploitation of the original work? If the use acts as a substitute and causes the owner to lose revenue, then it is not likely to be fair.

• Have you only copied the amount of the work strictly required for the fair dealing exception or did you copy more than was necessary?

• Was the amount of the work taken reasonable and appropriate? Usually, only a small part of a work may be used. Copying a whole work would not generally be fair dealing.

Teaching

 Copyright works may be used for educational purposes, such as:

• The copying of works to only illustrate a point, not for commercial purposes. And there must be a sufficient acknowledgement. The use should be fair dealing, which means minor uses, such as copying/displaying a few lines of a work, but not uses which would undermine sales of the work/the teaching materials. 
• Performing, playing or showing copyright works in an educational establishment for educational purposes, if the audience is limited to teachers, pupils and others directly connected with the activities of the establishment. It will not generally apply if parents are in the audience.

Tes: Lastly, what are the rules around teachers publishing correspondence between themselves, parents or others where that communication would give each party a reasonable expectation of privacy (ie, private messages on social media or letters)?

Maninder: If you publish material that has not been made available to the public by the author, like private correspondence, then you are at risk of being liable for breach of confidence, misuse of private information and/or copyright infringement.