Copyright and the Sale of Teaching Materials Online

Update: On March 2, 2023 TPT was acquired by IXL Learning, a developer of personalized learning programs used by millions of students around the world.

Niche platforms like TPT (formerly known as Teachers Pay Teachers), an online marketplace for PreK-12 teachers to share and sell educational materials, have become important resources for the educational community in addition to providing a supplemental income stream for the Teacher-Authors. The TPT platform gives teachers the freedom to post any type of instructional material that the teacher has created. However, before embarking on using the TPT platform, there are copyright issues to consider.

The threshold issue is whether the Teacher-Authors who are employed by public school districts or independent schools have the necessary rights to sell their work online. As a general matter, teachers are creating new products to sell on TPT on their own time and using their own devices and thus assume that these are not works created within the scope of their employment. In fact, sometimes the benefit flows the other way – that is, a teacher might decide to use in their classroom, with no charge to the school, a product they created for TPT. Obviously, an employment or union contract or personnel policy might dictate a different result in a specific case. The history of TPT suggests that schools have generally agreed that teachers have the right to post their material on TPT, whether it is their reading of the contracts or an avoidance of the inevitable adverse publicity taking such a stance against teachers supplementing their income would engender. It should be noted that some TPT sellers are retired teachers for whom this issue would be moot. (The question of whether lesson plans created for the classroom are the intellectual property of the teacher who created them or the property of the public school district or independent school employing the teacher is a different issue, beyond the scope of this Insight.)

Assuming that the Teacher-Author has confirmed that they have the rights to distribute their instructional material and post their work for the benefit of other teachers on a site like TPT, there are other copyright issues that the Teacher-Author and third party users must consider — namely, how third parties can edit and appropriately use these materials without violating the copyrights of others and how Teacher-Authors can enforce their intellectual property rights against third party infringers.

The Landscape

There is a longstanding and beneficial practice, predating the Internet, of K-12 teachers sharing resources with their colleagues without compensation. And while TPT has achieved the most brand recognition in the online educational space, it is certainly not the only source for instructional materials. Before TPT, such materials were available on platforms such as Etsy and Facebook Marketplace, and Classful and Made by Teachers currently offer a similar model. The American Federation of Teachers Union, which represents 1.7 million members, has their own lesson plan sharing site “Share My Lesson.” This site includes the grade level, common core standards and reviews. Additionally the National Education Association (“NEA”) also has a resource library, including articles and tips, and lesson plans with corresponding standards.

TPT’s Licensing Policy

TPT’s Terms of Service state that Teacher-Authors may grant either an individual license or a classroom license. An individual license can only be assigned to one user (either the individual who purchases the license or another person to whom they give it) for their lifetime use. That user may not share the resource (TPT’s term for instructional material) with another user. The license allows for the resource to be used only for “personal, educational, and instructional use.” The license also allows the user to download, print and make copies of the resource which can be shared “as necessary” or “for review purposes” with students, classroom aides, substitute teachers, students’ parents, classroom observers, supervisors and school administrators. The license however does not permit the sharing and uploading of resources “to websites, applications, shared drives or other sites or services.” TPT’s Terms of Service also make clear that the individual license prohibits the assignee from using the resource for commercial purposes (i.e. the user cannot sell it).

The second license is a classroom license, which can be purchased initially or as an upgrade from an individual license. Classroom licenses are limited to users of “TPT for Schools.” TPT for Schools accounts can only be created “by individuals with authority to bind the Organization to the Agreement” in a district or an individual school. This license can be assigned to new assignees once per calendar year (though the frequency can be increased in TPT’s discretion), but only one user can be assigned to access the resource at one time. The material can be downloaded, printed and shared as allowed under the individual license but, like individual licenses, classroom licenses are not permitted to be used for commercial purposes. However, because TPT allows downloading and printing, there is no protection against a third party making modest changes and reuploading the material and profiting from its sale.

Derivative Works: Teachers Violating Copyrights Owned by Other Teacher-Authors

As noted, teachers often rely on instructional materials created by others and edit them to fit the needs of their students. However, some teachers are now posting minimally tweaked instructional materials to sites like TPT to profit from the works and ideas of the original creator.

There are more than seven million users registered on TPT with more than seven million resources posted. As TPT states in the Terms of Service: “TPT has the right, but not the obligation, to monitor any activity and Content associated with our Services.”

The Digital Millennium Copyright Act (“DMCA”) addresses if and how online service providers (“OSPs”), such as TPT, can be liable for copyright infringement that users commit on their sites. The DMCA provides three safe harbors that shield OSPs from liability as a result of infringing activity of their users. The safe harbor embedded in the DMCA requires that the infringing material be stored at the direction of the user, as opposed to the OSP, and that the OSP disable access to infringing material once they have been notified that the material infringes the copyright. TPT has outlined its conforming notice and takedown process under its Trademark and Copyright tab in compliance with the DMCA. TPT also outlines the counter-notice process which allows the challenged poster to defend their content as their own. Under the DMCA, once an OSP receives a counter-notice from the alleged infringer requesting that their material be reinstated because the “removal was due to mistake or misidentification,” the OSP must reinstate the material within 10 to 14 business days. Unfortunately, the only remedy for the Teacher-Author at this point is to initiate a costly court action and inform the OSP of such action to prevent reinstatement of the infringing materials. Fortunately, the new Small Claims Copyright Court may offer a less expensive option going forward.

Copyright Enforcement

The DMCA shifts the burden of identifying infringing content onto copyright holders rather than OSPs. This means that Teacher-Authors would have to cull through hundreds of thousands of pages of content to identify and file notices against infringing content. Many teachers who have identified infringing content have complained that while TPT will remove the infringing content after receiving a notice of takedown (as required by the DMCA), this does not help the teacher recoup lost profits or the money wrongfully acquired by the infringing content poster. Though OSPs are not required to take action other than removing infringing content, this limitation coupled with TPT’s slow takedown process has resulted in many Teacher-Authors contacting infringing sellers directly, often with unintended and negative consequences. More troubling, because the platform only allows users to preview a few pages, Teacher-Authors are often forced to buy a resource to confirm whether or not the third-party seller is infringing on their content. That is both insulting and a financial obstacle to protecting their copyright interest.

Potential Solutions

Before posting their instructional materials for sale, teachers should include copyright notices, including Creative Commons licenses should they choose, on their work to put third parties on notice of their copyright interests. Copyright registrations would also afford the Teacher-Author the right to statutory damages and attorneys’ fees, in the unlikely event of litigation for infringements.

If you have questions about whether you own the copyright to your instructional materials or questions about your remedies after finding infringing material, Lutzker & Lutzker is here to help.

The author wishes to acknowledge the work of Punita Patel, who contributed to prior drafts of this Insight.