Teachers have always created teaching materials. In the past, they have usually been happy to pool their ideas for the common good of the profession. Gareth Pitchford, of Edleston primary school in Cheshire, spoke for many when he said after launching his free resources site (www.primaryresources.co.uk): “There’s a great sense of wanting to share resources to make life easier for all of usI if every teacher just put up one resource on the internet then maybe we might be able to reclaim our weekend.” (TES Online, June 11, 1999).

As educational publishing expands both in print and on the internet, publishers of the huge range of internet sites offering resources to teachers include multinationals and schools alongside individuals such as Mr Pitchford. Now that teachers’ ideas are so easily disseminated, their commercial value has become clear. Thomas Telford school in Shropshire, for example, has made more than pound;2.5 million from selling its online GNVQ and GCSE courses.

But who owns the rights to materials that teachers develop for classroom use? Can a teacher publish them in book form or on the internet? Can the school continue using them after the teacher has left? Can it sell them to commercial publishers? In the past, if no money changed hands, copyright was simply ignored; now you have to consider what might happen to your ideas in the future.

The basic legal rule is that the first owner of copyright in a work is its creator, but there is an important exception. If someone creates work in the course of employment then, unless the contract of employment says differently, the first owner of copyright will be the employer, usually the school or the education authority, not the teacher.

Russell Clarke, deputy general secretary of the Secondary Heads Association, confirms that teachers’ employment contracts are usually silent on the issue of copyright. “The nationally agreed teachers’ pay and conditions of service document says nothing about intellectual property. Neither does any contract of teachers, headteachers, deputy or assistant heads in maintained schools, or the most frequently used contracts in the independent sector.

“We occasionally come across a contract, most commonly in sixth-form colleges, that contains a clause referring to intellectual property. This will say something like: ‘The copyright of documents produced for courses run by the college belongs to the college. Inventions, designs, development work, etc, produced at college remain the property of the corporation.’ ” If the contract contains nothing specific about copyright, any materials produced in the course of employment will legally belong to the employer. But what does “in the course of employment” mean for a teacher? A teacher writing a textbook at the weekend is not doing so within the course of employment; writing books is not part of his or her job. An essential policy document composed by a headteacher at the weekend is created in the course of employment and would be the copyright of the employer.

Materials for use in school are more complex. Does a teacher create a worksheet, lesson plan or school play in the course of employment? Kate Pool, deputy general secretary of the Society of Authors, thinks not. “A teacher’s job is to teach. They are not employed to write teaching material, and any material they do create is not made within the course of their employment.”

Most teachers would agree. Heather Cox, classroom teacher and literacy co-ordinator at Brunswick Park primary school in the London borough of Barnet, says she spends hours in the evenings creating new material for her lessons. “I’m happy for it to be used as a resource within my school, but I would be furious if anyone suggested that the school owned the copyright in materials that I’ve developed over 20 years of teaching. We do too much for too little money as it is.”

But many lawyers, including John Bowers QC, an employment specialist, take another view. He says: “The scope of a teacher’s employment covers not only teaching but also designing lessons and creating ancillary material. If materials are created in order to assist classroom teaching, particularly but not necessarily within work time, then those materials will belong to the school.”

The understanding in schools seems to be somewhat different, with teachers’ resources and teaching plans universally considered to belong to teachers, not the head or the school. While a teacher who leaves a school is not legally entitled to continue using materials in which the school owns copyright, it is common practice that he or she does. This universal understanding may change the legal position. A teacher who writes the school play and wants to publish it commercially can claim that the school cannot assert copyright in his or her work since custom and practice gives teachers a licence, or even an implied assignment of copyright, in material they create.

If a school or an individual teacher decides to post resources on the internet, the site should include clear notices asserting copyright and explaining exactly how and when the material can be used. Another website set up by a primary teacher, www.teachingideas.co.uk, states that all ideas and worksheets on the site are copyright Mark Warner (the author), that primary teachers are welcome to use them in their own classrooms but they may not be changed, and no one may use them or link to them in order to profit financially. It also contains a disclaimer so that Mr Warner cannot be sued if the materials are incorrect or cause harm.

If you want users to pay, you would normally need to set up a subscription service to protect the material, such as those run by Thomas Telford or Kingshurst CTC, another school with an online publishing arm.

Also, you may be surprised to learn that if you develop a character as a teaching tool (Rod Hunt was a teacher when he created the characters in the Oxford Reading Tree), others might be able to make up and sell new stories about it.

Characters are not protected under English law; copyright protects the words expressed, not the ideas or characters themselves. While individual illustrations have copyright protection, names of characters do not. If you invent a memorable character which you feel has commercial potential, speak to a copyright lawyer for advice on protecting the rights.

It is becoming increasingly common for schools to publish pupils’ work, for example on websites and in anthologies. Pupils are not employees and they own copyright of their work. It is not enough to ask children’s permission first; a child under 18 cannot legally enter into a contract. Moss Hall junior school in the London borough of Barnet asks parents to sign a copyright release as part of its ICT code of conduct.

Teachers’ ideas are the tools of their trade but they are now also hot property. Teachers and schools should ensure that they benefit by agreeing between themselves what uses can be made of the materials, and by protecting them with proper notices, licences and disclaimers when offering them for third-party use.

Nicola Solomon is head of intellectual property at Finers Stephens Innocent solicitors