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?

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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.