Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged employment
Teachers selling coursework raises questions about ownership of intellectual property
Dec 5th
The Ottawa Citizen ran an editorial last week – which it cherry-picked from a related article in the New York Times – lamenting the rise of an online marketplace for teacher’s course materials. According to the Citizen, through sites like Teachers Pay Teachers and We Are Teachers teachers “sell each other all kinds of projects, plans, tests and even discipline standards”.
Here’s the kicker: these items are work the teachers generally prepared for their classes, not items they developed in their own spare time.
This is “double-dipping”, says the Citizen. A teacher is paid once as a government employee to generate these materials, and then they get paid again from the proceeds of sales on these websites, which with some exceptions goes to the teachers’ personal use. This doesn’t sit well with some.
The big legal issue that arises is: who owns these materials? Taxpayers or teachers? Aside from ownership, how should school boards respond, particularly if big sums of money are involved? Are there policy reasons to discourage this behavior?
Although this issue is new to the educational context, it’s old to employment and copyright law. The relevant arguments surround the principle in section 13(3) of the Copyright Act (Canada): there is a presumption that if a work is made by an employee in the course of his or her employment, copyright is held by the employer, absent a contract to the contrary.
In many industries, this issue is explicitly resolved in a number of ways. First, employment agreements generally affirm that copyright to any work developed in the course of employment falls to the employer. Second, a person can escape the “employee” status and provide a service as an independent contractor (effectively, a consultant).
The unique substance of teachers’ duties makes it unlikely that they have an employment agreement with a copyright clause or a non-employee-employer relationship with the school board. This shows, among other things, how the internet has facilitated the commodification of education. At this stage, the money involved may not turn enough heads, but it is a good idea for all groups involved to develop a position on this issue.
Choosing the right forum is half the battle
Jan 4th
Posted by noahsarna in Commentary
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Gone are the days when getting justice in your dispute meant you had to face the regular court system. Now, it seems like everybody is a judge of something and quasi-judicial entities abound. Organizations have internal panels to handle complaints. Administrative agencies have specialized tribunals to deal with industry-specific issues. Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.
In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere. Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.
Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies. Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:
In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies.
To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.