Coming Attractions: Who Owns Teachers’ Work?

Last year at TIME I took a look at the new websites where teachers can share their work – in some cases for personal profit and in some cases under circumstances where vendors can profit. The idea has great potential – especially with Common Core – for teachers to share work in an anytime/anywhere manner.  But as the column noted – greatly upsetting some readers who thought there should simply be no question – there are also a complicated set of legal questions swirling around these sites about who owns content teachers produce in the course of their work. [You can read some terms of use language from key sites here] Not a lot of case law yet but a New York court ruled that school districts own the rights to lesson plans teachers create as part of their employment and with employer provided tools. That’s a generally accepted, if infrequently enforced, standard.

Now the National Education Association has released its new statement on digital learning and it includes a statement about the ownership issue seeking to create a new standard – and include this issue in collective bargaining:

…education employees should own the copyright to materials that they create in the course of their employment. There should be an appropriate “teacher’s exception” to the “works made for hire” doctrine, pursuant to which works created by education employees in the course of their employment are owned by the employee. This exception should reflect the unique practices and traditions of academia.

All issues relating to copyright ownership of materials created by education employees should be resolved through collective bargaining or other process of bilateral decision-making between the employer and the affiliate.

The ownership rights of education employees who create copyrightable materials should not prevent education employees from making appropriate use of such materials in providing educational services to their students.

Stay tuned.  This was a dusty back alley of the eduworld with just the occasional copyright infringement suit from a publisher. But with real money increasingly at stake (the British Corporation TSL invested millions in its joint venture with the American Federation of Teachers, Better Lesson has attracted substantial investment, and some teachers on Teachers Pay Teachers are making six figures selling their material) look for more legal and policy action.

17 thoughts on “Coming Attractions: Who Owns Teachers’ Work?

  1. Sherman Dorn

    My gut instinct (I’m a member but don’t have any insider knowledge here) is that several folks in NEA are trying to craft a statement that fits both K-12 and higher ed. In higher ed, a number of policies or contracts give faculty the rights to teaching materials that are created without “appreciable support” — which is usually undefined, though there are some clear areas far from the dividing line:

    – something created with the help of paid college/university staff, or with specialized equipment or software is clearly created with appreciable support, and then whatever’s created would usually fall under whatever policy other “works” discuss.
    – something created on a faculty member’s free time, off campus, with their own computer? Their own work, clearly.

    Given the long hours of most K-12 teachers, I don’t think it will be difficult for a teacher to argue that they own what they created on their own computer or their WordPress site, mostly on the weekends, from home. If there is no work-for-hire policy or contractual clause, things could get pretty messy from here.

  2. Mark carrara

    It is long and well defined that work created during employment is the property of the employer, even if created ‘off the clock’. As a salaried employee. what you created related to work is the schools. Now if you record a rock song that would be unrelated to work and be yours. Because it is the schools you can not publish it with a creative commons or other open source license without district permission. I don’t see any reason educators should get any special rights.

  3. Linda/RetiredTeacher

    Teachers have contracts which generally list months and hours of employment. Most teachers are on a ten-month contract which means they are unemployed during the summer. The work day is generally from 8:00-3:00 or something similar. So I would think if a teachers writes her plans during the contracted hours and uses district resources, then the work belongs to the district. If she writes them on her own time, it seems that they would belong to her.

    We can all be fairly certain of this: No teacher will turn over the profits of work done during her own time to the school district. If she is forced to do so, she’ll just write when she’s unemployed (summers; retirement). Teachers appear to be compliant, but they almost always win in the end.

  4. Education Realist

    Yes, I agree. I file all my work on Dropbox. Sometimes I stay late after work and create material, other times I go home and do it there. If the school ever argued that they could sell any work I created on their resources, I’d just do everything from home.

    “As a salaried employee. what you created related to work is the schools.”

    If I were a lawyer who created an innovative application for tracking my billing hours, that I then used to upload to my firm’s spreadsheet, I would own the rights to that innovative application. Now, I would not be able to charge my company for their “use” of my application when I uploaded the hours, but that’s about it.

    Any curriculum I create is along the lines of the innovative application. It’s not work product, but something innovative I create in order to do my job, unique to me.

  5. Education Realist

    That said, I don’t understand how teachers are making money selling lessons. What teacher would spend money for someone else’s lesson? I’m more interested for an eventual book than I am selling things piecemeal.

  6. M

    AFT:

    If individual teacher creates an unusually high quality lesson plan that others want, he can sell it.

    If individual teacher creates an unusually high quality public school that others want, he should be blocked.

  7. Linda/RetiredTeacher

    M:

    Teachers who create lesson plans on taxpayer time should not be able to profit from them. Likewise teachers who create a high quality public school WITH TAXPAYER MONEY should not be able to profit from that school or claim it as her own.

    On the other hand, if a teacher creates lessons on her own time and uses her own resources, those lessons obviously belong to her. If she starts a high quality school on her own time and invests her own money (or raises her own money) that school would also belong to her and it would be private.

    The public schools belong to the public.

  8. Kent

    Why do things get so confused in the digital world? How about a non-digital example.

    I am a science teacher. In my lab I have a variety of hand-made physics apparatus that I have built over the years.

    Some pieces of equipment I built here at school during school time using supplies that I obtained locally using a school credit card. I doubt anyone would argue that I own these fruits of my labor built during school time using school-purchased materials.

    On the other hand, I have a variety of apparatus I built at home in my garage using my own materials during weekends and holidays. Stuff made from scrap wood and electrical parts that I had around the house. Do I own these? I think so. My personal property doesn’t magically change ownership when I carry it across the school threshold does it?

  9. Mark Anderson

    As Andy says, licensing can be viewed as a “a dusty back alley” issue, but it is not–it goes to the very heart of the “public” in public education.

    Rights in this case should be viewed as the right to distribution, rather than a right to exclusion. Proprietary licensing of curriculum perpetuates the isolation and reliance on external resources that is all too prevalent in schools. If we truly believe in public education, than anything a teacher creates for the purpose of the classroom should be under GNU style licensing – open to the public to be freely shared and modified.

    I wrote a post back in 2011 advocating for open licensing for curriculum. This issue will only become ever more pertinent as textbook publishers look to expand their dominance in the online arena:

    http://gothamschools.org/2011/12/20/curriculum-part-v-how-to-go-open-source/

  10. Jason Foltz

    I am a union staffer in Oregon and have begun, albeit on a small scale, to utilize collective bargaining as a means to clarify teacher rights when it comes to their instructional materials. That general language states that unless those materials were created at the direction of the district utilizing district resources those materials are the property of the teacher regardless of whether the teacher uses those materials during the course of work. This won’t help with any copyright issue with outside entities, but it does provide some clarity with the district. If a teacher wants to make a profit, just make sure you do the creative work on your own time.

  11. jeffrey miller

    Listen, you don’t necessarily have to allow teachers to be able to sell their wares on the market. But please, AT LEAST allow them to get added pay for going beyond the standard curriculum which is often one size fits all and nowhere do contracts stipulate a teach needs to go beyond the standard curriculum to for example, differentiate.

    It’s like the corporate reformers want teachers to toe their line but not live up to their own model. Sadly, the unions do not seem to have the cajones to stand up for their members. Listen reformers: if you continue to alienate teachers, you will not win. EVER. So one teacher manages to make ten bucks from a lesson sold on the web. YOU want the district to have that ten bucks? Really? Do you even understand how stupid that is?

  12. Chris

    Great, thought provoking article! I had never thought of this as an issue in schools, but it is a totally valid argument! I totally agree with what Jeffery said. What teachers make on school time doesn’t necessarily need to be copywrited to them, but they should get credit, acknowledgement, and potentially added pay for their efforts. There are so many teachers who do so much for students but get nothing for all of their effort.

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