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.

Teaching and Intellectual Property

So consider Teacher A and Teacher B.

Teacher A: Most days, the kids come in, teacher tells them to turn to a page in the book or gives a lecture, puts some notes on the board, works some examples, assigns problems to be done both in class and for homework.

Teacher B: Most days, the kids come in. Every thing else depends. Some days it’s an activity leading to notes leading to problems, some days it’s class discussion leading through a topic, some days it’s a whole bunch of problems practicing skills coming out of the activity or class discussions, some days it’s a little bit of all three. Every so often the book makes an appearance. Homework is simple and often distinct from the class sets.

Teacher A has carefully organized boardwork, copied from notes stored in a notebook or a lesson plan. The actual board is erased daily.

Teacher B has somewhat chaotic boardwork that is generated on the fly, and photographed at the end of class or whenever it is erased, which might be days later.

Teacher A generates tests using a software tool provided by the textbook publisher, or reuses tests created years ago, typed on a Selectric with hand-drawn diagrams.

Teacher B reuses tests, but tweaks them based on the classes for that year. Teacher B is an expert in Office or Google Docs or Open Office or whatever gets it done.

Teacher A has no idea how to use Office or Google Docs, or uses them infrequently, and wrinkles a confused brow at the notion of intellectual property.

Teacher B still shudders in horror at the near miss when a techie wiped a hard drive without realizing B didn’t have a network account, thus obliterating everything on the hard drive—which, thank all that’s holy, was nothing, because Teacher B stores an extensive, personally-developed curriculum library on Dropbox.

Of course, these practices are a spectrum that extend beyond Teachers A and B. I imagine somewhere in the world exist Teacher As using copied versions of an original mimeograph, and Dan Meyer and Fawn Nguyen are way out there in crazyville, totally unstructured gosh, math is something kids should DO not be TOLD about land, creating everything on the fly each day.

But here’s the point: Teacher B almost certainly puts in far more hours than Teacher A, spends a lot more time thinking about each day’s activities and how to craft a lesson specific to each classes’ needs. Teacher A teaches the subject, not the class.

Teacher A and B are paid by the same step and row scale. And that’s how it should be.

Most teacher contracts are very specific on hours: teachers shall be in the classroom from 0X:00 a.m. to 0Y:00 p.m. They shall sign up for Z hours of supervision duty. There are W hours committed to staff meetings and in-house professional development. Teachers have to be in class every single day unless blah blah blah.

Look up curriculum in a contract, on the other hand, and it’s very vague. Teachers shall go to professional development for multi-cultural curriculum. Or maybe teachers shall teach agreed-upon curriculum. Or sometimes new teachers shall meet with mentor teachers to consult on curriculum development.

Most contracts have a section on resolving disputes over “curriculum mandates”, when the districts require teachers teach one particular method, use one particular book, or follow one particular schedule.

Teacher evaluations are typically based on observations. Prior to the observations, they are often asked to submit lesson plans as evidence that they are considering the needs of all students: ELL, special ed, struggling, Hispanic/black. The administrator evaluates based on execution of the plan, as well as observed teacher qualities during the lesson: does the teacher constantly check for student understanding, are the students engaged, are the students behaving, and so on.

As everyone knows, reformers and politicians are anxious to change that evaluation process, because by golly, more teachers need firing. Firing more teachers is best accomplished by linking student outcomes to teachers, since teachers have less control over student outcomes than any other aspect of their performance.

So teachers are evaluated by planning, classroom performance and management and, possibly, student test scores.

Are they ever evaluated on the curriculum they develop? Is that part of the recent push? Compare google results for “teacher evaluation” “test scores” and teacher evaluation” “curriculum development” and it’s pretty clear that evaluating teacher’s personally developed curriculum is not on the horizon.

Of course, any teacher could tell you that. Teachers are not evaluated on the content of their classroom curriculum. They are not asked to submit examples of our personally developed curriculum. They aren’t asked to build curriculum as part of their jobs.

To put it in legal terms as I understand it, curriculum is not what teachers are hired to do. From Wikipedia:

A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is “made for hire”, the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.[1]

Andrew Rotherham has written about Teacher Pay Teachers, as has the NY Times, and both articles mention the legal aspects of teachers selling curriculum. Since districts are paying teachers to develop curriculum, the thinking goes, shouldn’t they own the curriculum? Apparently, one NY court said the district owned the curriculum because it provided the facilities on which the teacher developed the plans, but there’s little case law on the topic.

So I wrote up my case of Teacher A and Teacher B to articulate what seems to me the obvious argument in favor of giving teachers ownership of their intellectual property. Both teachers are doing the job they are paid to do. Teacher B is additionally developing curriculum. Teacher B is not hired to create curriculum, therefore the worksheets, activities, and the rest are not “work made for hire”.

As any contract makes obvious, teachers are paid for their hours in school. They are not tasked with developing curriculum, they aren’t evaluated on their individually developed curriculum. They are given a set of hours and objectives. How they complete the objectives, within given constraints, is largely up to them. That’s why curriculum mandates so often require mediation, because teachers are used to making their own classroom decisions and object when it’s imposed from the outside. Curriculum is ours.

To quote Rotherham again: What we consider schools are often just loose confederations of independent contractors, each overseeing his or her own classroom.

Notice the name is Teachers Paying Teachers. It’s not the districts or the schools buying the activities. Perhaps some of the teachers are turning around and billing the district, but I suspect most of them think of these purchases as their professional responsibility to find curriculum to engage their students. Some teachers just use the books. Some create their own activities. Some work together with their departments, sharing out curriculum responsibilities cooperatively (if you surveyed teachers, a plurality would choose this as their desired method, although very few schools seem to do this consistently.) Some turn to google. Others buy from other teachers. But it’s the teachers’ purview to make curriculum decisions.

The districts are entirely removed from this process. In all but a few cases, they aren’t giving teachers clearly delineated lesson plans and activity worksheets, daily schedules, tests—all perfectly aligned with their students’ actual abilities, not the pretense that we’re actually teaching Hamlet to kids who can read at a sophomore level, or second year algebra to kids who know the difference between a positive and negative slope. No, they provide books that teachers can choose to use or not, and in some cases benchmark dates for interim tests. On occasion, they will mandate professional development taught by middle school teachers who wanted out of the classroom. The teachers will show up and, usually, snicker politely. But when the door closes, the district is nowhere to be found, and it’s all on the teachers to decide on the daily lesson and teach what they determine is necessary.

So then, if a teacher is particularly good at developing lesson plans, sequences, or activities that other teachers spot and want to use, even pay for, then the district wants in on the money? Yeah, I think not.

I believe that even the issue of where the material is developed is irrelevant, although I can see a better case for that. Unless a teacher develops all material during a prep period, then the material was developed off the clock. If a teacher stays after school to build a great handout or activity for the next day, that time is unpaid. The district and school get the immediate benefit from the lesson–which is again what they pay the teacher for.

Consider, too, that teachers often reuse lessons and activities they developed at other districts. The districts see the benefits from this reuse free of charge. They aren’t required to pay the previous districts for the use of its computers or teacher time spent developing that material. I imagine these districts demanding ownership rights of curriculum have no interest in hunting down the previous districts to reimburse them for the value they are now getting.

Teacher intellectual property is an odd concept to discuss in a world that shows little respect for teacher brains or creativity. But I believe that a close reading of any contracts and the ample evidence of Teacher As and Teacher Bs, all getting the same money despite profoundly different work product, would show that teachers are paid purely for the time spent teaching, not the materials that they use to teach with. Therefore, any materials they create to teach are not work made for hire. And if a district has inserted contractual text saying otherwise, then it should be challenged on this.

Apparently the NEA agrees with me, so I doubt any such text is going to be showing up much in the future:

Furthermore, 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.

I am, clearly, a Teacher B, so this is something I feel pretty strongly about. Not that I’d ever sell my lessons—I’m way too much of the tech open source tradition for that. You want it, ask me. It’s yours for everything but selling under your name. To the extent I want control over my intellectual property, I want it to a) prevent any district from benefiting from it monetarily and b) maybe put it in a book some day, if a publisher is ambitious.

But the larger point, I think, is what this means both for Common Core and the curriculum purists like Core Knowledge. Education reformers often don’t understand the point Rotherham makes: teachers are independent operators, particularly at the high school level. Enforcement of a particular curriculum is very nearly impossible. I’ve been focusing on the way curriculum breakdown happens at the teacher level, but Larry Cuban has an excellent essay, The Mult-Layered Curriculum, that lays out the other ways in which the curriculum goals break down.

So behind the issue of teachers’ intellectual property lies a much bigger issue: why do teachers have intellectual property? Why are they developing their own material? To many people—including a whole bunch of teachers—this is a problem. To others, including many Teacher As and all Teacher Bs, this is a feature. If you took away my ability to develop my own material, you would remove a lot of the joy I take in teaching. I’d still teach, I think, but many others of my ilk would not.

Think about this and before long it starts to become clear that education reformers constantly argue for two goals that are potentially in conflict: powerful standards that articulate a cohesive required curriculum and bright, creative, resourceful teachers. Because if the standards don’t have buy-in—and make no mistake, neither Common Core standards nor any curriculum like Core Knowledge have anything approaching buy-in—then bright, creative, resourceful teachers will develop their own curriculum and ignore anything they disagree with.

I am not arguing that all Teacher As are soulless drones and all Teacher Bs are mythical enchanting woodland sprites who make magic in their classrooms. Teacher As have intellectual property as well; it’s just harder to see. What I am saying is that the very notion of teacher intellectual property reveals the problems with any attempts to create broader standards or a common curriculum.

But on the basic point, I think things should be pretty clear: teachers are not paid to develop curriculum. Since curriculum isn’t work for hire, the worksheets, activities, and lesson sequences, and any other resource development is theirs to do with as they wish.