The 2010 documentary Waiting for Superman did not hold out much hope for public education teachers. But their own Superman might come on New Year’s Day, Jan. 1, 2013, when heirs to the first DC Superman comic seek to reclaim ownership or intellectual property rights (originally sold for $130).
What does this high profile billion dollar case have to do with teachers?
Teacher’s intellectual property -- lesson plans, lectures, and, increasingly, electronic courses, etc. -- now seems to “belong” to Districts. The often unspoken legal principle governing here is copyright law’s “work for hire” doctrine that gives all benefits of an employee’s creation to an employer.
But ownership of teacher materials isn’t really clear because of something called the “teacher exception” in “work for hire” interpretations, a holdover notion from the 1970s.
The law never clearly decided who – teacher or school -- owns the intellectual property of teachers. No clear cut decision seemed necessary. Most cases involved university professors whose research could have significant value. And research university traditions tended to be the mechanism for conflict resolution.
But as both universities and public schools corporatize the issue is coming back faster than a speeding bullet.
Universities look increasingly to leverage research not just into grant money but in to technology transfers and thus supplement lost state revenue. The legal disputes could be hot and heavy.
So: Superman promises to bring multiple “work for hire” cases to the courts, including cases involving the “teacher exception” to the work for hire doctrine.
Teaching materials (as opposed to research or scholarship materials) never were really an issue. They are now.
As premier universities and star professors begin to market on line courses it is entirely unclear who owns what: does the professor own the course or the university?
At the K-12 public education level?
We have open and unexplored legal terrain that may have been opened even further by current public teacher antagonist Richard McLellan.
Governor Snyder’s school reform architect McLellan wants state educational funds to follow the student rather than go to the “District” where a student resides. McLellan insists our long, historical practice of funding through Districts misinterprets the state Constitution which charges the state legislature – not Districts – with preserving public education.
Two illustrative talking points currently circulate, particularly for tea-party reformers partial to a more aggressive kind of rhetoric: 1) State money is “for the kids” not Districts and 2) traditional, geographically defined Districts hold kids “hostage.”
Not surprisingly, Districts resist this.
If, however, teachers follow McLellan’s anti-District logic all the way through, they might have a different opinion than the Districts they work for -- or, at least, a select few might have a different opinion.
Teachers already may agree with McLellan on at least one point: “Districts” don’t educate, teachers do. Following McLellan, then, teachers might productively ask: should money follow students through to Districts at all -- rather than individual teachers?
Are teachers being held hostage, too? And in a newly made “right to work” state?
Mr. McLellan wants to create incentives for new kinds of teaching (even if the kind of teaching they imagine as new already is being done across Districts and has been largely invented and developed by public schools and universities with public money). His group concentrates on the need for on-line courses and clearly imagine a benefit to one “District” or another selling “courses” to non-District students. His argument is this will maximize competitive impulses, something publication education in his estimation currently lacks.
Given the possibility this proposal might go through, savvy Districts prudently began discussing entrepreneurial strategies about how to "market" their wares and "come out ahead."
But, again, “Districts” – by whatever definition we use – don’t create courses, teachers do.
Teachers, with the help of an ambitious attorney or two, just might find themselves better off with McLellan and his people than the “Districts” they supposedly serve. Public school teachers aren't trained or used to thinking of their "property" in this way (quite the opposite -- in good districts a spirit of collaboration and sharing obtains and is, not surprisingly, encouraged by administration), but when you change games there are unintended consequences.
Who knows in the uncharted waters Governor Snyder wants us to explore?
Either way, though, the Governor and his lawyer may have put public education and the state of Michigan on an interesting, but volatile and potentially expensive collision course with the courts. Seasoned and reasoned voices in Lansing and around the state have wisely slowed down this process.
Waiting for Superman and his heirs to have their say is, in fact, even more reason to think all this through a bit more carefully and with a bit more consultation (beyond taking emails suggestions from a website).