75 Iowa L. Rev. 381 (1989-90)

     In this article the author explores the issues of academic copyright and looks specifically at the rights of high school teachers.  Specifically in section V the article outlines several recent cases and how they impact the idea of a ‘teacher exception’ and also goes into a good amount of detail about the reasoning behind the courts' decisions.  The author also discuss a few solutions to this issue.  Arguing that neither the school nor the teacher solely owning the copyright presents a great solution.  If the school owns the copyright then they have removed a large incentive for teachers to produce, and if the teachers have sole possession of copyright they could severely limit the academic environment, if they decided to be very strict and not allow their works to be used and shared among their peers.  The example given was a teacher develops an exam; if the exam is particularly well designed it is in the best interest of the students and the school to make this available to all the students in the district.  If the teacher refuses to allow the distribution then they are impeding progress; the opposite of what copyright is intended for.

     As a solution for this the article explores several routes, sharing copyright between the school and the teacher seems an obvious solution, but it begins to fail when one considers the relatively transient nature of teachers.  While not as drastic as university professors, some high school teachers will be at several schools before they find one that suits them.  If they are not allowed to use their own works once they transfer to a new school they will be in a difficult situation.  An alternative is using the right of teacher inception, which would have to be contractually agreed on.  This would allow the school the right to use a work created by the teacher for educational non-profit purposes, but the teacher would hold all other rights.  Allowing them to profit from their creativity.

     This seems like a good general solution.  However, it likely cannot be applied to Mauro v Allentown.  If there were no prior agreement to the right of teacher inception then it would not be valid.  So while the right of teacher inception is a viable and mutually beneficial solution, this situation is most likely going to have to rely on precedent to be decided.

Hays and Macdonald v Sony  847 F.2d 412; 1988 U.S. App.

     This was one of the few cases I could find that specifically dealt with the academic exception at a high school level. 

     Hays and MacDonald were two high school business teachers who developed a handbook for a word processor that the high school owned.  They distributed the handbook to the staff and students of the high school.  When the high school purchased new word processors from Sony, the school gave the handbook to Sony asking them to adapt it for the new word processors.  Sony did so by taking large parts of the document and copying it into the new handbook.  Sony then gave it back to the school at no charge.  When Hays and MacDonald found out about the new handbooks they sued Sony for copyright infringement arguing that they owned the rights to the handbook.  The District Court found for Sony.  Hays and MacDonald tried to appeal the decision but they filed their appeal to late.  The Appeals Court thus denied their appeal and they lost their case.  However in issuing the denial the Appeals Court discussed the case in more depth, exploring the issues as if the case had been heard.  They argued that that since Sony didn’t make any direct profits from the handbook there would have been no damages to be awarded based on the arguments made by the plaintiffs.  However the court did say that it appeared that Hays and MacDonald were the rightful owners of copyright and so might have been entitled to an injunction.  They also discussed the nature of the work for hire clause of the 1976 Copyright Act.  They said that although it appears to have eliminated the academic exception there seems to have been no intent by Congress to do so and therefore if another case came before this Appeals Circuit they might be inclined to uphold the academic exception.

     This case relates very well to Mauro v Allentown.  Both occur at the high school level, and both deal with teachers preparing works beyond the basic scope of the classroom.  The fact that this case ended with a denial of appeal makes drawing any concrete conclusions from it more difficult, but it does appear that if Mr. Mauro did proceed with his case his might be able to receive an injunction to prevent the high school from performing his work without his permission.