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Legal Controversy Over Lesson Plans


Teachers who sell their lesson plans online might be running afoul of copyright laws.


By Tim Walker


No one becomes a teacher for the money. You’re in the classroom because the rewards of being a teacher still compensate (on most days at least) for the low pay and long, grueling hours. Teaching after all is a public service, not a business. But are teaching and entrepreneurship mutually exclusive?

Some educators are testing these boundaries. As reported recently by the New York Times, Web sites such as TeachersPayTeachers and We Are Teachers provide an online marketplace for teachers to sell original classroom materials, namely lesson plans, to other teachers.

Some critics are aghast at the idea, citing ethical pitfalls and implying that such a practice somehow cheapens the profession. Not so, say proponents, who believe it promotes excellent teaching and empowerment. (The extra cash doesn’t hurt, either, as at least one New York teacher who claims up to $36,000 in sales found out.)

Anyway, if everybody sells everything on the Web, the thinking goes, then why can’t teachers peddle their lesson plans — original content created on their own time — over the Internet?

Maybe because there is a good chance that you don’t actually own the copyright to the classroom materials you produce.

Intellectual Property: It’s Complicated

“This is a legal issue,” says Cynthia Chmielewski of NEA’s Office of General Counsel. “So if you want to sell your lesson plans online, make sure you actually own them.”

As far as Carol Sanders is concerned, she does.

“This is America,” says Sanders, a veteran English teacher in Brooten, Minnesota. “My district does not own me. And I own what I create for the classroom.”

Right on the first two counts, but does Sanders also “own” the teaching materials she produces?

The short answer is . . . it depends.

If your employment contract assigns copyright ownership of materials produced for the classroom to the teacher, then you probably have a green light. Absent any written agreement, however, the Copyright Act of 1976 stipulates that materials created by teachers in the scope of their employment are deemed “works for hire” and therefore the school owns them.

Sanders and many of her colleagues, however, believe that if they create materials on their own time, using their own equipment, they surely have the right to do with them as they please.

“Under the law,” explains Chmielewski, “this may not make a difference. The issue is whether you created the materials as part of your job duties.”

In 2004, a federal appellate court in New York ruled that “tests, quizzes, homework problems, and other teaching materials” were works made for hire owned by the district and that the “academic tradition” of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication.

And don’t think districts won’t swoop in and exercise their rights. The New York Times article cites at least one incident in upstate New York where a school district banned a teacher from selling her work. Other districts may demand a cut of -- if not all -- the profits.

NEA believes that staff should own the copyright to the materials they create for use in the classroom and supports amending the Copyright Act of 1976 to recognize a “teachers exemption” to the “works made for hire” doctrine.

In the meantime, Chmielewski says educators should work with local affiliates to bargain copyright protections into collective bargaining agreements. And in non-bargaining states, affiliates should pressure school employers to develop more equitable intellectual property policies.

“Outdated Thinking”

Joe Fatheree, a high school teacher in Effingham, Illinois, wonders why a district, even if it is legally entitled, would want to strip incentives from its staff. The 2007 Illinois Teacher of the Year, Fatheree believes schools are being shortsighted if they are not encouraging educators to publish, whether they get paid for it or not.

What Do You Think?

Should educators sell their lesson plans online? Should you have legal copyright over the material you create for the classroom? Join the discussion.

 

“We should all be looking for ways to elevate the profession,” Fatheree says. “Teachers who publish online are well-respected and are providing excellent content.”

Esther Wojcicki, however, has reservations. A journalism teacher in Palo Alto, California, Wojcicki supports teachers who want to sell their lesson plans (“more power to them,” she says) but is nonetheless concerned about the proverbial slippery slope — rampant plagiarism, shoddy material flooding the Web, and, perhaps most importantly, a challenge to what she calls the “culture of sharing” that reinforces the teaching profession.

Wojcicki wonders if teachers, encouraged by new profits, will stop sharing their expertise and resources with their own colleagues. Wojcicki directs one of the largest journalism programs in the country and is passionate about educators using technology to share resources and collaborate. She is currently working on a Web site where teachers will be able to access her journalism curriculum, free-of-charge.

The Web is a goldmine of free resources—many of them first-rate—so it’s natural to ask, as Wojcicki does, why would a teacher need to purchase another’s lesson plan?

“I don’t know any teachers who sell or buy classroom materials online,” Wojcicki says, “so I don’t think it’s widespread. But, ultimately, the reality is that educators share with one another and should continue to do so.”

Joe Fatheree and Carol Sanders believe both worlds can coexist. What they oppose is the faulty notion that what these educators are doing somehow cheapens the profession, when, they believe, it does quite the opposite.

“It’s the 21st century,” says Fatheree. “Districts looking to dampen this activity are being led by some pretty old-fashioned thinking and we don’t have to take a vow of poverty to be great teachers or to show how much we care for our nation’s children.”


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