Curriculum Development: Not Work for Hire

I chopped off part of my last piece to expand more on teacher intellectual property, a topic near and dear1.

The conventional wisdom (which Stephen Sawchuk nicely outlines in the last part of this piece) holds that teachers are district employees, so any curriculum, lessons, or tests are considered work for hire . The teacher is paid specifically to develop the curriculum by the district, so the district owns the copyright and any subsequent profits from all of their teachers’ work—tests, worksheets, lesson plans, sequencing, whatever. .

In theory, my district could force me to pull down my posted curriculum from this blog—since I don’t own the copyright, I don’t have the right to give it away for free. Sites like Teachers Paying Teachers are illegal in this view, since teachers are making profits off their district’s property.

Originally, a teacher’s work was exempted from the work to hire rule, but in 1978 Congress didn’t include the exemption. Teachers’ unions have been trying to get the exemption reinstated.

Not for the first time, I’d argue the unions are going about this in exactly the wrong way. The exemption is unnecessary. Teachers aren’t hired to write curriculum. We are hired to teach. I’ve now outlined three well-established, time-honored practices that support this interpretation.

  1. Teacher contracts spell out their time commitments, which are the time in the classroom, staff and department meetings, supervisories, and mandatory professional development. No contracts hold teachers responsible for developing their own curriculum. A teacher is welcome to teach day by day from a provided textbook, or eschew a textbook altogether. They are not evaluated on the strength of their curriculum development in any way, nor can they be required to improve performance on this point. (More about this here.)

  2. While districts have begun to claim copyright, districts have never paid each other for teacher-developed curriculum. I have been in three districts. Like all teachers, I have a directory of my own curriculum, and I’ve carried it from school to school without any district ever informing me I couldn’t–much less demanding payment from my new district for use of their copyrighted curriculum.

    This practice, which has gone on for generations, clearly demonstrates that districts don’t consider themselves owners of the teacher curriculum. So if they want to ban a teacher from selling it, they need to start seizing the curriculum from teachers who developed it. Good luck with that.

  3. As I recently wrote, teachers given the extra duty of a class are paid purely based on the class instruction time, not the additional time (or not) needed to develop curriculum for that class. I’ve written before that teacher preps, or number of subjects actually taught, impact teacher workload. Teaching three different classes would be considerably more work, for most teachers, than teaching the same class four (or six) times. Teaching large classes also impacts workload. The teacher with multiple preps but a free period could have a student load of 150, while the teacher who works the prep could have 120 students (6 classes of 20). Unlikely, but theoretically possible. Doesn’t matter. More preps, more students, more outside work: irrelevant. What earns teachers a significant premium is the number of scheduled classes they are responsible for.

No one ever listens to me, but I’d advise unions to look for a good test case to challenge the work-for-hire idea, rather than argue for a change to copyright law, on the grounds that existing practice has acknowledged teacher intellectual property for decades. Certainly, the district should never be required to pay for the teacher’s work product in later years, should receive automatic use of anything developed during the teacher’s term of employment. But any rights in the curriculum we develop is our own.

I’ve often seen reformers–and other teachers—bemoan the notion of teachers who go home right after school everyday, clearly implying that the extra work developing lesson plans and curriculum is an element of our salary. But this simply isn’t true.

Besides, we don’t have any real idea of what makes a good teacher. Some of us work hours after school, some leave right after. No teachers who spend hours crafting curriculum, be it handouts, lesson plans, or tests, have any guarantee that they are getting better results. What they do know is that they are creating, creating without pay, and what they create should be theirs.

Here, again, acting works well as an analogy. Two actors are cast in a play, given supporting roles with an equivalent number of lines. They are both paid “scale” (whatever that is). The first actor spends six hours a day outside of rehearsal, practicing and perfecting the role, trying out different readings. The second actor barely makes it to rehearsal because he’s busy auditioning for a movie, doesn’t put any time into preparation.

They both would be paid scale for rehearsal and performance hours. The first actor wouldn’t be paid for the additional hours. The second actor might, in an unfair world, receive more acclaim and audience approval despite his lackluster approach.

But neither of them would be precluded from re-using aspects of their performance in later roles. The studied wince. The knowing sneer. The warm beaming smile, the turn and rapid delivery. Their performances were the result of work-for-hire. The script, like the textbook, belongs to someone else. The manner and method they use to deliver the performance are entirely theirs.

I ran into our union rep, an excellent English teacher, in the copy room. We began by chatting about class size (I’m teaching three massive A2 classes, which has given me some sympathy for the limits) and for various reasons (no doubt because this was on my mind), we got around to curriculum development.

“I wonder why the union doesn’t realize that we aren’t paid to develop curriculum? They don’t really need to change the copyright act to give teachers ownership of their work.”

“Or to give everyone ownership,” she said instantly. “There’s good reason to believe that no one’s work is truly original, that everything is derivative.”

Oh, lord. A CopyLeft fan. If our conversation had been Twitter based, I would have been properly contemptuous, but she’s a colleague and really very smart (she knew about the 1978 Copyright Act!) and besides, on this issue, I am actually seeking to persuade so I bite back my first response.

“Yeah, I ‘ve never agreed on that. But can we agree, at least, that whether teachers own their work or everyone owns their work, that the district doesn’t own our work?”

“Oh, absolutely. In order to give it away, we need the rights to it.”

So to the many loopy committed Creative Commons, Open Source, everything is derivative folks, can I just ask that we put aside our differences long enough to get the union to argue our case?

********************************************
1I’ve been writing about teacher IP and curriculum development for four years, as long as this blog’s been around–that’s in addition to many, many posts on my actual curriculum development. Here’s the primary pieces:

Teaching and Intellectual Property
Grant Wiggins
Developing Curriculum
Handling Teacher Preps
Math isn’t Aspirin. Neither is Teaching.

About educationrealist


10 responses to “Curriculum Development: Not Work for Hire

  • Roger Sweeny

    As you say, “districts have never paid each other for teacher-developed curriculum” and no one is trying to shut down Teachers Pay Teachers. There is no law saying, “teachers own curricula they develop and the district doesn’t.” But that’s how people act. As you point out, it would be difficult to enforce “we, the district, own everything you develop ‘in the course of your employment.'”

    Perhaps it is better to just leave it like this. A test case risks some judge saying, “The teacher exemption from the ‘work for hire’ rule was removed by Congress. If Congress had meant for teachers to be exempt, it would have said so in the statute. The teachers unions have tried to get the exemption back in ever since, indicating that they think ‘work product’ of a teacher is now owned by their employer. I see no reason to disagree.”

    Things would be different if a district tried to confiscate a teacher’s curriculum when he left. (Tip: keep a copy of all your materials on a CD or a flash drive or your home computer, or bring hard copies home.)

    If districts really wanted to get the curricula of their teachers, they could put a clause into the employment contract, “All educational materials developed during the period of employment are owned by the district and revert to the district upon termination of employment.” In that case, it would not matter what the law said. But it would matter how they expected to be able to enforce it.

    • educationrealist

      You might be right. But what if the clause you describe suddenly becomes the norm? If unions don’t understand how much curriculum matters to teachers like me (who are, I think, the minority) they might give it away.

      • Roger Sweeny

        It seems kind of pointless to me for districts to try to bargain for something like that.

        1) What do they gain? What the hell would they do with hundreds of computer files or thousands of pieces of paper? I suppose they could create some sort of library of curricula (open only to teachers in their district) but what would they gain from that? My experience is that teachers are willing–even eager–to share materials. It was a milestone in my career when as a new teacher, someone used something I had developed, after I had used numerous things older teachers had developed. When I left, I left a binder of my own handouts, partly to make life easier for the next person and partly because I thought they were good and I wanted them to be used.

        Come to think of it, as part of our accreditation renewal, we had to do a “curriculum map” for every course. A hard copy went in a binder on the NEASC shelf. Since we had done them as part of some professional development years before, it wasn’t a hardship (though like most of the accreditation process, it wasn’t useful either).

        2) Enforcing the “you can’t take it with you” rule would be almost impossible. Are districts going to search teachers each time they leave the building? Are they going to descend on a teacher’s new school to make sure he isn’t using anything from his old school? I suppose modern IT could track down attempts to sell it–but again, why bother?

      • educationrealist

        I agree. But all that could change, and the conventional wisdom is districts own the curriculum.

      • DensityDuck

        ISO-9000 certification says that you should document your process, because if you do that sufficiently well then anyone can do it; instead of specially gifted (and irreplaceable) masters, you now have just regular people who follow instructions.

        I could certainly see a school saying “wait a minute, if we can just get our best teachers to write down what they do, then have ALL the teachers do THAT, then ALL our teachers will be as good as our best ones!”

        And what is a curriculum, but a codified written-down version of “what I teach, and when”?

      • educationrealist

        Yes, that’s definitely the thinking. As for the latter, that’s like saying “what is acting but the screenplay?”

      • Roger Sweeny

        I like that metaphor.

  • Curriculum Development: Not Work for Hire – missteacher2016

    […] Source: Curriculum Development: Not Work for Hire […]

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