School Districts, Copyright and their Students

PGCPS LogoIf you want to anger just about everyone in the copyright debate, threaten to take someone else’s copyright away. Considering what happened with the Instagram TOS debacle recently, one might think that organizations would be a bit more shy about language that gives the appearance of a copyright grab, whether the grab is intentional or otherwise.

However, the Prince George Country Board of Education wasn’t so bashful when, last week, it proposed a new policy that could, theoretically, have it laying claim to nearly all works created by teachers for the classroom, including those done on their own time, and even student works.

The policy is part of a broader set of proposed guidelines on the “use and creation” of copyrighted works at the district. The proposed policy reads:

“Works created by employees and/or students specifically for use by the Prince George’s County Public Schools or a specific school or department within PGCPS, are properties of the Board of Education even if created on the employee’s or student’s time and with the use of their materials…. Further, works created during school/work hours, with the use of school system materials, and within the scope of an employee’s position or student’s classroom work assignment(s) are the properties of the Board of Education.”

Fortunately, according to the above Washington Post article, the school board seems to already be backing away from it it some.

Board Chair Verjeana M. Jacobs, who co-authored the proposal with the Vice Chair, has said that “Counsel needs to restructure the language. We want the district to get the recognition… not take their work.”

But while it’s most likely that language will never make it into the final policy, it’s clear that schools are thinking harder about the creation of copyrighted works, not just their use. Can we expect a day soon when schools ask students to give up copyright in their homework?

The Problems with the Idea (Teachers)

To be clear, though school board is a government agency, it can and often does hold copyright. US law only forbids the Federal government from holding copyright in works created by its employees, state and local governments have different policies.

On that note, a school board becomes like any other company and employees of a business routinely have copyright in their work go to their employer. This is called work for hire (PDF) and covers works created by an employee “within the scope of his or her employment.”

However, when you start talking about works that are created outside of the workplace and may not be exclusively for work, you enter into a nebulous area that often requires a jury ruling, as with the MGA/Mattel case that involved the Bratz doll line.

Employees can, theoretically, agree to transfer almost any copyright to someone else but companies have found it difficult in the past to enforce overly broad work for hire agreements, as with the above MGA case, which saw the Appeals Court require a jury to rule on the intention of Mattel’s broad employment agreement. The jury ruled against Mattel, the employer in the case.

In short, if a teacher created a multi-million dollar project and the school district tried to claim copyright over it, the resolution would likely depend upon the specifics of the case but there would be many good legal challenges to such a claim.

The Problems with the Idea (Students)

For students, the problem is much bigger as students (at public schools) are not employees and are not minors.

First, the students would need some kind of agreement with the school board to transfer copyright as there is no work for hire arrangement for students. Many colleges have such agreements, but they usually focus on sharing the results rather than the school outright claiming copyright.

But if such an agreement were to be challenged, there could be a lot of problems with it. First, the students would be minors, second there might be arguments that the contracts were signed under duress and, finally, many might consider the contract to be unconscionable.

Whether those attacks would succeed is unclear and would depend heavily on the nature of the agreement, how it was presented, and other details. However, it is worth noting that, in a ruling involving iParadigms, the makers of Turnitin, the court held that the contract students agreed to to submit to Turnitin plagiarism evaluations, was valid as it was “complete”, meaning that there was no way iParadigms could get back the benefit provided under the contract (the checked and cleared paper).

However, that particular case did not address the issue of duress, saying that the duress came from the school district, not iParadigms, and thus was not part of the case. That issue remains unresolved.

Also, it’s not clear when the contract with a school district would be “complete”. Would it be at the end of the assignment and after it’s graded, the end of the year or when the student graduates? I don’t have an answer to this one as it’s outside my particular focus area.

That being said, what is very clear is that such a deal with the students would be much more difficult to apply and enforce than the already-uphill battle faced with the teachers. Given how much time and effort it would take to do this and how little value there is in the work most students do, I can’t imagine this becoming popular, at least not yet.

The Future Direction

Jacobs made it pretty clear what the true target of this language is. She and her Vice Chair attended an Apple presentation about how teachers use apps to help in the classroom. The proposal, according to her, was designed to make it clear who owns the curricula created on such apps when using equipment that is school property.

Clearly, this is not about claiming copyright in a child’s art class project or a high school student’s essay, it’s about school districts waking up to realize that there is a lucrative education market out there, including an app-oriented one, and that some of their instructors are the ones contributing to it or even profiting from it.

As Sara Hawkins said on Twitter, the situation is interesting because the “District is only now seing lon germ value of teachers’ works and now want control.”

As the education market grows and school district budgets get cut, this is likely going to be a growing trend. School districts fighting for a slice of the pie when it comes copyrighted works created by their teachers.

Bottom Line

In the end, I don’t expect to see this be the last of these kinds of disputes. School districts are struggling for cash and many will inevitably look to copyright and the education markets as a secondary income source.

That being said, the outrage that this proposal brought forth shows just how touch of a subject this is, especially when you involve the students.

Any school district that wades into this needs to be careful, not just of the potential legal issues, but of the public relations ones as well. One misstep in either direction could turn a bid to open up a new revenue stream into a very expensive mistake.

The last thing a school district wants to do right now is waste money chasing a dry well, making this an issue to approach with extreme caution.

Disclosure: I am a paid consultant for iParadigms.

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