Teachers Selling Lesson Plans - What Legal Issues?
Justin Bathon on Monday, November 16, 2009 at 8:09AM The big story making rounds over the weekend was the N. Y. Times story on teachers across the country selling their lesson plans online to make themselves a profit. Lots of local papers ran it in their Sunday edition, including my local paper.
So, why not? I've weighed it over the weekend and I can't come up with a really good reason to legally ban it, not to mention I don't think there is any existing legal issues. I am no intellectual property guru, but a teacher's lesson plan is his or her own intellectual property, meaning they would hold the copyright (if they sought one). As the copyright owner, they are free to sell it in the same way they are free to give it. Update: See the comments below - my readers think this is "work for hire" and the property of the school district. I'm not so sure, but until I complete my own research, I suggest that their opinion is the one to be relied upon.
And, I think schools should stay out of it. They may try to take a cut (and I think there is a reasonable argument they should get a cut), but they should just forget about it. There is just not enough money there to pay a lawyer to handle all the intellectual property issues and negotiate prices.
Maybe I am crazy, and feel free to tell me that I am, but I think this is an area where the market, aided by the Internet, could actually be a good thing for schools.
Reader Comments (20)
I think this is covered in copyright law as a "work for hire" - meaning that as the employee of a company paid to create something, you do not own the copyright; the employer does.
We have a general arrangement that employees may copy and use the work as they wish, but the employer still owns the work.
In any other domain, there would be no question at all -- it is work for hire, it belongs to the employer.
Would you not consider the teachers the "author" of the work? The school certainly would not be considered the author, would it? But, under a "work for hire" arrangement, typically the institution is the author - and as author retains the intellectual property. But, I would argue that is not what is happening here at all.
I think it is different in education and I think the higher ed. context is instructive. There, the faculty member is generally considered the author and thus retains all the copyright protections, including the right to transfer (for profit). That right is absolute, but it can be transferred. It can only be transferred, however, through the deliberate contracting of that right away. Of course, whether faculty employment contracts constitute this kind of deliberate giving away is debatable and there is caselaw on it. (I found this a helpful tutorial from America's leading research universities: http://bit.ly/4hhEQF).
So, I do think teachers hold copyright unless they have deliberately given it away to the school. I do not think developing syllabi and course materials is work for hire where the institution would hold the copyright.
My broader point, though, is that schools should take a backseat here. Since when did schools become interested in making money (additional money) off the intellectual property of their teachers? This is too far down the rabbit hole. Heck, I would much rather see schools demand a creative commons license on their teacher's workproduct rather than trying to take a cut of the (meager) profits.
I have to agree substantially with the first two posters. In a default sense, lesson plans are a classic example of "work for hire," notwithstanding the contrary assertions of the AAUP. These are different from a scholarly piece, in which the selection of the subject of study itself is the decision of the professor alone. Faculty are generally assigned to teach certain courses, and a necessary action taken pursuant to that assignment is the formulation of lesson plans for those specific course. Thus, selling the product likely makes the professors in question come into conflict with the copyrights owned by their institutions. Especially in the K-12 setting, where it is very common these days to have a requirement that lesson plans be turned in to a department head or administrator periodically, I think that the balance of factors would weigh in the school's favor.
In the higher education context, and especially in the case of a professor designing model lessons for courses not assigned to that professor, however, it seems that such plans fit more neatly under the categorization of "scholarship," which is nearly universally agreed to be exempt from the "work for hire" rule. Ultimately, though, this should all come down to contract at the university level, and most university contracts explictly maintain faculty copyrights (and even patent rights, subject to the university being able to take a cut of the profits and licensing fees).
I do agree with Justin, though, that k-12 schools are likely wasting their time and valuable resources chasing something that is likely not all that valuable. Also, by engaging in this sort of adversarial action, they are undoubtedly negatively impacting employee morale.
As a technologist in K12 education, I am concerned about the ramifications of a teacher selling a lesson plan that may contain or reference content copyrighted licensed by the school system and available to that employee as a condition of the employment.
Here's a scenario that I deal with all the time: A teacher posts today's lesson plan on his/her web site for students to keep up with what is going on in class. The teacher uploads the digital worksheet from the textbook publisher which is essential to that lesson.
To what extent will the school system be liable for copyright violations like this? To what extent will the teacher be personally liable?
@Jill - It's hard to predict, but the school and teacher could both be potentially liable for the types of copyright violations you mention in your scenario (see disclaimer, by the way). The school as the purchaser of the product and employer of the teacher and the teacher, personally, for acting outside the scope of his or her employment.
On your first point, yeah, that would be an issue and any for-profit lesson plans would certainly change the fair use balance and would exempt the work from the generous educational use provisions. Again, depending on who is the author and/or copyright holder there could be potential liability issues there as well (this is another reason why the school would do well to stay away from this kind of thing).
But, while that is a potential issue, that is no different than any other segment of society and/or higher education. Authors in those fields as well, whether institutional or individual, also must work within the existing copyright laws and are potentially liable if they jump outside them. So, I don't think we should allow that possibility to stop an otherwise useful endeavor of sharing/selling lesson plans.
Good comments all, keep them coming. This is a fascinating issue.
The legal arguments are interesting and not being trained in that area I will not comment on whether a teacher could sell his/her lesson plans for profit. I think the larger question is SHOULD they? The technologies that have allowed this potential - Web 2.0 technologies - came into being for purposes of authoring and sharing. This shows a creep of the hegemony of capitalism/consumerism into this space. The Web 2.0 space always felt more altruistic then this. It just feels dirty to me.
There is no real point in worrying about liabilities incurred by posting copyrighted materials online. The copyright holder can send a DMCA takedown notice and that's pretty much the end of it.
Justin, I think you're wrong on this one. Like the others, I too think it's 'work for hire' unless the intellectual property right is explicitly given over to K-12 educators by contract / agreement (as is done for faculty in most postsecondary settings). Check out the case law...
Why would it be work for hire? What, literally, does the school bring to the table? The electricity? How do you compensate for the fact that many teachers bring their lesson plans with them to the job? The school just assumes ownership of those? Can't be. No way should it be work for hire, this is not a law firm. I'll check ... a good article topic because if it is work for hire, I'll have to recommend against it.
Here's an excerpt from Wikipedia to get you started!
United States Copyright Act of 1976:
Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)
The first situation applies only when the work's creator is an employee and not an independent contractor.
Scott, "within the scope of employment" ... sound familiar. It is essentially the same discussion, right? Is education like business or is it different? I have to continue to contend that it is different and should be legally recognized as such.
I think you have the law on your side, but I'll continue to argue (for now) that law is out of touch with the necessary exception for education in a democratic system (i.e. education is not a business and the laws that assumedly apply to business should not assumedly apply to education).
The real question is how copyrightable are lesson plans: http://www.tuttlesvc.org/2009/11/regarding-selling-lesson-plans.html
Justin, you said "I don't think there is [sic] any existing legal issues. I am no intellectual property guru, but a teacher's lesson plan is his or her own intellectual property, meaning they would hold the copyright (if they sought one). As the copyright owner, they are free to sell it in the same way they are free to give it."
If you now agree that the law is on my side, then I think that you should go back in and update the original post to clarify that you were wrong so that others don't rely on your statements incorrectly. Your opinions about what the law SHOULD BE are yours to hold, but your statements about what the law IS are incorrect.
Here's what I'll do. For now, I'll reference people to the comments and take out the authoritative language - thus people will get the majority opinion on what the law is from all my readers. However, I am still not convinced (stubbornly, I know) until I do my own research, which I now plan to do. Then, I'll both fix this post to whatever I think the law IS and I'll write another post on the findings.
I just posted this comment on Tom's site, so some of it refers to the particular verbiage in his post/comments, but I thought I'd add it here as well. Again, please keep in mind this is very much not from a legal perspective, but from a "what's best for kids" perspective.
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OK, I’m not a lawyer, nor particularly knowledgeable about copyright, so this is likely to be a naive comment, but bear with me as I look at this from a teacher’s perspective. I’m curious as to your (Tom and everyone who’s commented) take on “whether or not it is actually a good idea.” Because after reading through all the links, my guess is that it does currently fall under “work for hire,” yet I (and I would bet most teachers) have a visceral reaction to that statement – it just feels wrong (I’m still trying to analyze my own feelings of why it feels so wrong to me).
So, to me, I guess the more interesting question is (since copyright is an area that I believe is going to have to change to reflect shifting circumstances - relying on Lawrence Lessig’s work here) should teachers’ work belong to the employer? According to the U.S. Constitution, the intent of copyright is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." So, my very non-legal and non-technical question/argument is, does conveying the rights to teachers’ work to their employer “promote the Progress of Science and useful Arts?” To keep this simple(r), I’m thinking of this in terms of public, K-12 education. To me, it seems like treating this work as the property of the employer actually impedes progress (again, not trying to make a legal argument, just trying to get my head around this). With schools (and school districts) increasingly being viewed as a competitive model, I think “hindering a school district’s commercial interest” could get pretty broadly applied, and – should “work for hire” hold up – teachers would be prevented from taking stuff they developed to another, competing school district (or charter school, or private school for that matter).
In other words, from my own naive and unrealistically idealistic perspective, is this what’s best for kids?
Thanks Karl ... obviously I agree with everything you said which is why I am pretty firmly against this categorization of work for hire.
I'll post more at Tom's blog ... everyone else can find that comment stream here:
Sorry here: http://bit.ly/72kVu7
at TeachersPayTeachers.com, we are wondering if you have drawn a conclusion about where the law stands--or where it should stand--on the question of who owns teacher-created materials... looking forward to it after a most interesting debate.
thanks,
paul edelman
founder, http://www.teacherspayteachers.com
This is so sad. How much further down the hole will you push teachers? Not giving them intellectual rights and freedom over the work they created on their own time? Unless they are creating these plans on the school's dollar, the work belongs to the creator.
Do students work belong to students or to their teachers? Why would someone even be thinking of this unless their plan was to steal from teachers?
To further this faulty logic, perhaps it is then the teachers who should begin to charge schools for any additional lesson plans created. Why motivate when I will be stolen from? They owe me additional pay for my additional work.
Schools are host sites for teachers. They do not own their work or their person. We are not slave labor.