Friday, November 20, 2009

Regarding Selling Lesson Plans

If you write a lesson plan as part of your work, that is for your job, unless there is some other agreement with your employer, it is the property of the employer. It is work for hire. Period. It doesn't matter if you do it on your own time, on your own computer, at home, unprompted, on your own initiative, any more than a memo that a sales manager writes at home belongs to him or her, or an account manager that goes above and beyond on a sales PowerPoint owns it.

If you think teachers should be exempt from this you are arguing that teachers should have privileges that other professionals do not. The fact that teaching is generally a tough, underpaid, unrecognized profession does not enter into that basic fact.

The hazier question is actually "Are lesson plans copyrightable?" In case you forgot, I Am Not A Lawyer, and this one is tough to Google, since you tend to get lesson plans about copyright instead of information about copyrighting lesson plans. My guess is, however, that lesson plans should play out like recipes, copyright-wise:

Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the U.S. Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met...

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems, or methods.

Along these lines, regarding lesson plans written for work, the teacher does not control the copyright of that particular expression of the ideas, ingredients, systems, etc. There is, however, no reason the original author, or anyone else, can't create another version of the same lesson and sell it online. For that matter, there is nothing stopping someone else from making another implementation of the lesson they buy online and doing whatever they want with it.

This makes common sense, fits with the way things actually work in the real world now, allows teachers or schools to pursue a moderate but not monopoly rent on the content, and seems perfectly consistent with a plain reading of the law.

13 comments:

Justin B. said...

Very good post Tom. I am loving talking about this issue.

First, I get the legal position on the work for hire - although I am still not at a point where I think that is the best legal prescription. Making that work for hire seems to me to be a quite stupid idea, actually. If I have time, I'll maybe write an article or law review to that effect.

I do appreciate your extending the question to copyright-able issues and I do think you have good points. But, there seems to me to be no choice but to permit some copyright here. I do not think this is totally like a recipe in that the components are not that well defined. If the standard says teach American History, or even teach the Civil War, the composite elements of the lesson plan are still flexible and the teacher still has discretion (and is making a policy determination) in deciding how to go about it. For the most part, it is both the content and the teaching strategy that the teacher is making a decision on (and this is mostly at the discretion of the teacher, which is why I still hold to the notion this should not be the property of the school). On top of all that, assessments seem clearly capable of being protected by copyright.

That all said, a state legislative mandate that all lesson plans made under a "work for hire" arrangement at public schools are not under standard copyright, but instead under a creative commons license would seem to me to be a very good idea. Even individual districts should consider policies like that in the near term. That both protects the public interest in making the content available, but also recognizes the contribution of the (true) author, the teacher.

Claus von Zastrow said...

I'm most concerned by the suggestion that teachers should be BUYING lesson plans with their own money if they feel insufficiently supported.

Tom Hoffman said...

Justin,

Before going much further, we'd have to define "lesson plan."

I'd say a formal assessment is outside the scope of a lesson plan, and in particular has a strong case for being owned by the school, e.g., teacher makes up a great Algebra unit test and requires a licensing fee to be used district wide?

I would argue that a lesson plan is a description of how to combine various elements, which may include some limited original content elements (a worksheet, etc) which could themselves be copyrighted. But that content is definitely the property of the employer, if it is created for work.

Even then, the employer doesn't control the ideas implemented in the worksheet -- a teacher can do another version for sale. That seems reasonable to me.

Also, I've grown wary of proposals to blanket Creative Commons license things that aren't given proper scrutiny. A CC license guarantees that the owner has the right to license everything in the work, which gets complicated, and a having a lot of stuff floating around with illegitimate CC licenses would be bad; especially if the school district was legally responsible for all that.

preaprez said...

If the lesson plan (however you want to define it) belongs to my employer, does that mean I can't give it away or share it or change it without my employers permission? Is it only monetary profit that is at issue. The books and other supplies in my room belong to my employer. I can't sell them or share them with another district or give them away without my employer's permission.

Tom Hoffman said...

Fred,

Well... this is getting technical beyond the point of being realistic, and I think the whole situation only makes sense if lesson plans are weakly copyrightable, and thus anyone suing anyone else for trying to redistribute individual lessons is highly unlikely and counterproductive.

However, in the abstract, I'd say that non-commercial redistribution of district IP that does not hinder anyone else's commercial interests (e.g., the district isn't also trying to sell it) would hold up solidly as fair use.

Peter said...

Unless an explicit agreement is made beforehand, I think a reasonable default is that the school gets their own copy that they can license however they wish, and the teacher who wrote the lesson and any associated materials gets a copy that they can license however they wish.

I don't agree that the work should be exclusive "property" of the school by default.

And yes, this situation is very different than typical work for hire. Unless we are dealing with a special situation, a school is paying you to teach, not develop materials. Developing lesson plans is one of the means to the end. I'm not sure why you categorize lesson plans as work for hire when they are clearly secondary in the duty of a teacher.

Unless the primary purpose of your job is to crank out lesson plans, I think it is entirely reasonable to treat the writing of lesson plans for the purpose of teaching differently than say, being contracted to design a logo for company X on a work-for-hire basis.

Peter said...

As for the recipe/plans part, does it really matter? Lesson plans without accompanying materials are pretty useless. What matters more is the copyright on the video you made to help explain a concept that is referred to in your lesson plan.

Unless there was a specific contract made beforehand, I'd like to see a school's lawyer try to prevent that teacher from taking a copy with her to the next school she works for. I think a judge would laugh the "work-for-hire" claim right out the door.

Peter said...

Sorry, I feel like I'm spamming your post. :) But...this might shed some light on precedent:

"The Article suggests that courts recognize a teachers’ exception to the work-for-hire doctrine, vesting ownership in faculty-creators."

Tom Hoffman said...

Peter,

My reading of the article is that there is some uncertainty and lack of precedent, but the scales clearly lean toward teacher-generated content being covered by work for hire, whether or not it is actually a good idea.

And I think the argument for work for hire is stronger in K-12 than academia.

Also, in many school districts, you have to turn in lesson plans as part of your job requirements. They are very specifically part of your job description.

Karl Fisch said...

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 viewpoint, is this what’s best for kids?

Tom Hoffman said...

Hi Karl,

The fact of the matter is this is all pretty hypothetical... in practice it isn't really a problem. It would only become an issue if teachers started making *serious* money off this stuff, which I don't think is very likely.

Justin Bathon said...

I do think it could be a serious problem Tom. I agree there is not a lot of money in it, so it might not have a lot of monetary implication, but I think it could be having an ideological implication, which is why I favor the CC license (although you expressed good concerns there). The work-for-hire concept (and lawyers recommendations underneath that concept) is probably preventing a whole lot more sharing that could happen. The possible statement "teachers please share your work broadly" is not being delivered in the way it could be, for instance.

I actually think very publicly switching to a CC label could be a great public ideological statement that could stimulate a whole lot of additional sharing (as in, why not just make lesson plan sharing sites and encourage it? That would be very useful).

The other thought here is the Lawrence Lessig thought: having a policy like this is going to mean that many teachers are violating the law. Now, unknowingly violating the law to be sure, but infringing on the school's copyright nonetheless - that's stealing and that's potentially criminal. So, we are unknowingly and stupidly (in my opinion) potentially criminalizing many of our teacher's otherwise valid and useful behavior. That's just bad law and we should try to correct these things whenever possible.

Karl Fisch said...

@Tom - You're probably right, but I think there's at least a small chance it could become a problem, and it wouldn't necessarily be over the selling of stuff. Instead, I think it would be over districts denying teachers being able to take good stuff with them (or use good stuff in an online/hybrid environment not associated with the school district), in an effort to protect district enrollment and budgets.

I also think - whether it has a practical impact or not - that the overall concept can have an emotional effect and could inhibit teachers from putting themselves out there. I have had several folks in a professional development effort I'm involved in say exactly that - they don't want to share their "stuff" digitally because they're afraid of losing their "stuff" if other people know about it.