Monday, February 04, 2013

School District Theft

How could any right-thinking person think this is a good idea?
A proposal by the Prince George’s County Board of Education to copyright work created by staff and students for school could mean that a picture drawn by a first-grader, a lesson plan developed by a teacher or an app created by a teen would belong to the school system, not the individual...

The proposal is part of a broader policy the board is reviewing that would provide guidelines for the “use and creation” of materials developed by employees and students. The boards’s staff recommended the policy largely to address the increased use of technology in the classroom.
I would be against this even if it applied only to teachers, who are at least paid, but students? The idea is that we compel them to be there, then take ownership of what they create?

I'm entirely baffled.  I honestly don't see how this could be legal, much less moral.

Taking ownership of teacher material is more of a gray area for me.  It all comes down to what they pay me to do; if I do something on my own time, I own it.  Even if I used it in my classes, I still created it on my own time for my own satisfaction and the school district has no claim to it.
It’s not unusual for a company to hold the rights to an employee’s work, copyright policy experts said. But the Prince George’s policy goes a step further by saying that work created for the school by employees during their own time and using their own materials is the school system’s property.
The old adage of "follow the money" certainly comes into play:
Kevin Welner, a professor and director of the National Education Policy Center at the University of Colorado in Boulder, said the proposal appears to be revenue-driven. There is a growing secondary online market for teacher lesson plans, he said.

“I think it’s just the district saying, ‘If there is some brilliant idea that one of our teachers comes up with, we want be in on that. Not only be in on that, but to have it all,’ ” he said.
This guy gets it right:
Peter Jaszi, a law professor with the Glushko-Samuelson Intellectual Property Law Clinic at American University, called the proposal in Prince George’s “sufficiently extreme.”

Jaszi said the policy sends the wrong message to students about respecting copyright. He also questioned whether the policy, as it applies to students, would be legal.

He said there would have to be an agreement between the student and the board to allow the copyright of his or her work. A company or organization cannot impose copyright on “someone by saying it is so,” Jaszi said. “That seems to be the fundamental difficulty with this.”

Cahn said he understands the board’s move regarding an employee’s work, but he called the policy affecting the students “immoral.”

“It’s like they are exploiting the kids,” he said.
It's that very reason why I think it's wrong for teachers to use company makes money off of student work without compensating the students. In short, it's theft.

Hat tip to reader MikeAT for the link.


MikeAT said...

I'm entirely baffled. I honestly don't see how this could be legal, much less moral.

Sometimes law and morality are two different thing...and you are dead on, this is as screwed up as the day is long.

allen (in Michigan) said...

It's reprehensible but it's also understandable.

The school district has the power and, with the simultaneous perception that the river of money that has for decades flowed into the public education system is slowing down and that teachers are, perhaps, producing valuable intellectual property, a reason. So the school board's, probably at the suggestion of some administrator, making a grab for intellectual property produced by teachers.

As for asserting a right to the intellectual property produced by students, I'd think that's rather a dicier proposition. After all, as you point out students aren't employees of the district and thus any claim to their intellectual property is charting new, legal territory. But, better to assert and be slapped down then to fail to assert and lose out on some revenue stream.

Anonymous said...

I am not a lawyer ... but ...

my understanding is that a contract (a) needs to be voluntary, and (b) requires both parties to get something of value (which is why you get these contracts for "$1 and other considerations").

I can see the claim that the teacher is getting something of value from the district (a paycheck), so this can be rolled into the contract. And the teacher can quit (or not apply for the job) if the terms are poor. I'm not saying that this is *RIGHT*, just that I can see how if could be legal.

For kids in college, I think this all applies as well. They are getting an education and they don't *have* to be there.

But for K-12, because attendance is required (forced!) by truancy laws, I don't think you can reasonably argue that this is voluntary. It isn't like the kids can leave the school if they find these copyright assignment terms unacceptable.

So ... my non-lawyer guess is that the kids work *IS* copyrighted (copyright happens on creation in the US), but the school cannot make it a requirement that the copyright be handed over to the school.

The district probably can do this to the teachers (although enforcement is tricky). I also think that the teachers would need to sign something (the district can't just change the terms retroactively). It would be interesting to see what would happen if the teachers as a group refused to sign. Does the district really want to fire a bunch of them over this?

-Mark Roulo

Shannon Severance said...

I am also not a lawyer.

"But the Prince George’s policy goes a step further by
saying that work created for the school by employees during their own time and using their own materials is the school system’s property."

What I've seen on the agreements I've signed is that a claim on inventions and works created on my "own" time using my own equipment would still belong to my employer if it related to my job or the business the employer engages in. So if I were to go home and write a bunch of automation scripts that reduced the time to resolve certain issues by 90%, I would not be able to go back to the employer and say, "I've written this, on my own, and I own the copyright. It would make me more efficient at work to use these, would you like to buy an annual licence?" And if I worked for a bank and wrote some software that was more effective at finding arbitrage opportunities, I would not be able to sell that to other banks.

I've always assumed those clauses were enforceable. Even if they are not enforceable I really do not like conflict.

I do believe the district will need a contract to take ownership of the copyrights of works created. Assuming the teachers are covered by a collective bargaining agreement, the exact terms would be negotiated when the contract is up for renewal.

With respect to the students, I agree with Mark Roulo, the students are neither voluntarily entering into an agreement with nor receiving consideration from the district. (Consideration is the thing or action of value given by both parties in a contract.)

Further, even if a contract is formed it would in almost all cases be between the school district and a unemancipated minor. Which, in general, would allow the student to repudiate the contract. [There are caveats to performing the repudiation. If a minor wishes to repudiate a contract do not delay and seek legal counsel.]

momof4 said...

I did a number of term papers in HS (class of 67). IIFC (and I checked with a classmate), we had to have a topic, thesis statement and outline approved and have the reference list approved (later). Other than that, we wrote the papers on our own. We could ask teachers for help, but I never remember doing so. And the school wants to own that product! H*## no. Between history and English, I did papers on the Salem Witch Trials, Richard III, The Leatherstocking Tales and The Taming of the Shrew. Those were my work, period, and no one else deserves ownership. Yeah, another way to exploit kids (peer tutoring, anyone?)

Ellen K said...

This is why I actively avoid sharing my best lesson plans. These are the plans that have worked for me over time that I have taken efforts to streamline and document and implement. While I will describe what I do to other teachers, I find many of them don't want the reasons behind the lesson, they just want to use it to get the same results I receive.