

DC-area schools consider copyright policy that takes ownership of students’ work - newbie12
http://www.washingtonpost.com/local/education/prince-georges-considers-copyright-policy-that-takes-ownership-of-students-work/2013/02/02/dc592dea-6b08-11e2-ada3-d86a4806d5ee_story.html?hpid=z1

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tokenadult
Surely this can't be legal under existing copyright law. From the article,
"The District holds common law copyright, at a minimum, to all relevant
intellectual property its city and school employees create, a spokeswoman
said." I take it that the school district's lawyer was not consulted before
that statement was made, or else the lawyer was a doofus about copyright law.
There isn't any "common law copyright," in the first place. (FIRST EDIT: a
reply to this comment correctly points out that the story is primarily about a
"proposal by the Prince George’s County Board of Education" and that the
District of Columbia public schools are a distinct public school system. So I
should make clear that I think that ANY school district that thinks it can
assert a copyright interest in pupil or student assignments is mistaken about
the law, and parents should challenge districts that make such statements.)

The work-for-hire exception to the general copyright law principle that the
right of copyright belongs to the creator from fixation is narrowly construed,
and school pupils attending a public school don't meet the rather narrow
exceptions that trigger the work-for-hire doctrine.

[http://www.theiplawblog.com/archives/-copyright-law-
ownershi...](http://www.theiplawblog.com/archives/-copyright-law-ownership-
issues-underlying-the-work-made-for-hire-doctrine.html)

<http://www.copyright.gov/circs/circ09.pdf>

School pupils are not employees of school districts. Works produced in the
scope of employment by school district employees may indeed be works for hire
(there is some scope for interpretation in applying this part of the work-for-
hire doctrine) but, again, students and pupils are not employees of the school
district. They have authorship rights in their works from the moment of
fixation. (That students and pupils are usually minors, not adults, is an
additional complication in asserting that right, but that doesn't pass the
right to the school.)

Anecdote: I made a school art project in second grade, a picture of a Mongol
horseman, that somehow was precociously good, probably because I had seen
other such drawings at home when reading history books. The school's
specialist art teacher was so impressed by the picture that she took it, and I
HAVE NEVER SEEN IT AGAIN. Every time I tell this story, I encounter other
adults who also remember producing an art project in school that was taken by
a teacher, never to be returned. Thanks a lot.

My advice to parents, which I advise parents to memorize, whenever I speak at
a public meeting about educational law: if a school official tells you that
you must put up with some school rule, because the rule is the law, say, "What
is your legal authority to ask me to do this?" Statutes and case holdings and
administrative regulations have citations. If it's really the law, someone can
look it up and see exactly what the law says. Schools can only make up
policies under authority granted to the schools by other law-making bodies.
And if a school district has a policy, it still needs to be written down
somewhere. In my experience, most school district officials who say "It's the
law" are nonlawyers and are often mistaken about what the law says. If a
school tells you that you can't do what's right by your child because "it's
the law," ask for the citation of the law. If it's really a law, there is a
citation, and the law can be looked up. In the United States, under its Anglo-
American system of law, the default assumption is individual liberty (and
parents rather than schools acting in the interests of minor children), so
make sure to check the specific law before believing your freedom is
restricted by the law in the manner the school official claims.

SECOND EDIT: A different top-level comment in this thread mentions a policy of
the University of California Berkeley. I have an inference about what that is
about, and it would be enormously helpful to the discussion to link to the
exact text of what students agree to as they enroll, which is surely a public
document that very likely lives on the World Wide Web.

~~~
DanBC
> _If a school tells you that you can't do what's right by your child because
> "it's the law," ask for the citation of the law. If it's really a law, there
> is a citation, and the law can be looked up. In the United States, under its
> Anglo-American system of law, the default assumption is individual liberty
> (and parents rather than schools acting in the interests of minor children),
> so make sure to check the specific law before believing your freedom is
> restricted by the law in the manner the school official claims._

Unfortunately they're likely to mumble some semi-related law and then call the
police.

~~~
tedunangst
What are they going to tell the police? "These parents won't let us copyright
their children's work, please arrest them."?

~~~
derleth
Harassment. Making a scene, also known as disturbing the peace. Refusing to
leave, which amounts to criminal trespass. Maybe even assault, if they're
really feeling their oats and are willing to claim you made them fear for
their safety.

~~~
tedunangst
If it gets to the point where a school official asks a parent to leave, my
advice would be to walk away and call your favorite education lawyer. Do you
really think refusing to leave is going to change their mind?

~~~
derleth
> Do you really think refusing to leave is going to change their mind?

I think you missed my point: The fact they accused you of refusing to leave
does not mean you did, in fact, refuse to leave.

------
cs702
Every time I read something like this, I can't help but feel that society has
lost sight that the primary purpose of copyright is to promote and encourage
creative endeavors _for everyone's benefit_ [1], not to safeguard individual
ownership of 'intellectual property.'

Is anyone at this school system even wondering, "does society at large benefit
from this?"

\--

[1] As pyre points out below, this is the case in the US, but not necessarily
in Europe, where the history of copyright is much longer and more complex.
(Thanks pyre!) The Copyright Clause of the US Constitution is: "To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries." Source: <http://en.wikipedia.org/wiki/Copyright_Clause>

~~~
pyre
Depends. As I understand it, using copyright for the betterment of society is
a British/American view of copyright. Elsewhere in Europe it's seen as an
author's right to control one's work.

~~~
Evbn
But those "moral rights" are generally not transferable to others.

------
russell
When my son was an undergraduate at UC Berkeley he used to put a copyright
notice on all his homework because the University has a similar policy. The
policy was legal because students has to agree in order to gain admission.

The Prince Georges policy has no legal standing because first graders cant
enter into contracts. Apparently nobody contacted a minimally competent
lawyer.

~~~
dmckeon
Not a Cal student, but Cal & the UC have a number of pages about copyright,
including: <http://ipira.berkeley.edu/uc-copyright-policy>

_IV C. Student Work

A student work is a work produced by a registered student without the use of
University funds (other than Student Financial Aid), that is produced outside
any University employment, and is not a sponsored, contracted facilities, or
commissioned work.

Ownership of copyrights to student works shall reside with the originator._

and a terser version at:
[http://copyright.universityofcalifornia.edu/systemwide/owner...](http://copyright.universityofcalifornia.edu/systemwide/ownershipguide.html)

Note also that schools using anti-plagiarism services like TurnItIn might want
at least an implied license to copy putative student works so they could
submit a copy of the work to the service.

~~~
russell
I can accept that his reasoning was flawed.

------
noonespecial
Wow, as a student in HS I literally wouldn't have been able to turn in certain
homework due to an agreement I had signed as a contractor(1).

There's an excuse for you. "No Ma'am, I don't have today's homework, I'm under
nda."

(1) It was a ridiculous contract, probably completely invalid because I was 17
at the time, but still... Homeschooling for _business reasons?!_

~~~
hmsimha
From what I read, it looks like the policy would apply to work produced 'for
the school' or use by the school or part of the school, or with school
equipment. So I suppose if you claimed all work you turned in had been
produced by you prior to the assignment, for your own, or other, purposes, you
(or the copyright owner) would retain your rights.

~~~
dalke
I believe that noonespecial's "ridiculous contract" was such that the other
party claimed copyright ownership to all copyrightable material generated by
noonespecial, including work which had no relation to the other party.

This would, therefore, include work done for school, if a transfer of
copyright for schoolwork is required as part of the education.

------
jiggy2011
Why would you want to own the IP for a bunch of crappy school projects?

~~~
michaelt
Some universities have plagiarism detection systems and to tell if you're
copying from your buddy who took the course last year they store all submitted
work. Often these systems are outsourced to companies like 'turnitin' [1]
which can also compare work between universities. Work is stored forever, and
if anyone submits something similar to your work, professors get to see both
side by side for comparison.

In order to store students work in the plagiarism detection system, the
student has to grant the university/turnitin an appropriate copyright license.

[1] <http://en.wikipedia.org/wiki/Turnitin>

~~~
SEMW
There's a big difference between granting the school a non-exclusive copyright
licence (including one that allows them to sublicense to anti-plagiarism
companies), and assigning them your copyright. I'd be happy to do the first,
but not the second.

~~~
sliverstorm
The first has pitfalls. For example, is it even possible to grant a non-
exclusive, _non-revocable_ license?

So, they are going to prefer the second, as the pitfalls of the second are
primary the objections of students.

~~~
SEMW
> is it even possible to grant a non-exclusive, _non-revocable_ license?

...Yes?

IAN(Y)AL. But licences aren't revocable by default. If I grant you a licence
by contract, then you have a licence. If I want to revoke it, I have two
options.

\- One, I can ask you if you'd be willing to waive/vary the contract, in
return for some good consideration. But you don't have to accept.

\- Two, I can send you a letter saying "I revoke your licence", sue you, and
crucially, try to convince a judge to _imply a term_ into the contract that
allows me to revoke the license. Which is pretty hard. Terms aren't implied
lightly. Especially if I put the word "irrevocable" in the contract, no-one's
going to imply a clause saying the exact opposite.

Important thing: "by contract". If I grant you a licence gratuitously, outside
of a contract or deed, that's different.

------
owenboswarva
Here's a copy of the draft proposal:

Use of Creation of Copyrighted Materials (Prince George's County Public
Schools)
[http://www.boarddocs.com/MABE/pgcps/Board.nsf/files/943N845D...](http://www.boarddocs.com/MABE/pgcps/Board.nsf/files/943N845D5399/$file/Copyright%20Policy%20Revised\[1\]2\[1\].pdf)

------
tomx
What would the ideal policy be?

My ideas are:

\- Students own their own work; even if they don't really care for it. I don't
see any value in a 10 year pile of homework, but if you create a great piece
of art, you should be able to take it home. Realistically, most work is
valueless and binned.

\- Any created teaching materials may optionally be released as open source,
under some license that prevents anyone profiting from them. There's often a
gap between good work, and good releasable work (final polish, consistency and
so on). Anyone (e.g. some school district) wanting a particular set of work
released should be prepared to fund this final polishing. So, a teacher could
make a great course, subsequently receive funding to make it brilliant for
others, and share it with the world. Thus any good teaching materials created
benefit the most amount of people.

~~~
betterunix
"What would the ideal policy be?"

Not applying copyrights to education and knowledge, because copyrights make no
sense in an age of widespread fast Internet access. Further, as public schools
are government entities, they should not have copyrights at all; all
unclassified government work should be in the public domain, and schools
should not even think about classifying their teachers' or students' work.

------
Angostura
Are there any amusing ways of hacking this policy?

What are the implications, for example of a student preparing a piece of work
that breaches the law in some way and then immediately informing the
authorities since the school board now owns said work.

I can imagine the Board finding themselves owning all kinds of work that
'accidentally' breach copyright. It might be interesting to try and engineer
such a 'poison pill' piece of course work and watch the board squirm as they
argue that 'this really doesn't belong to us'.

~~~
SEMW
Happily (or unhappily), the law is applied by humans rather than computers,
and isn't very susceptible to that sort of thing.

Also -- 'being the copyright holder of a work that infringes copyright' isn't
a thing. If I copy Harry Potter, by the act of copying I'm infringing JKR's
copyright. That I assigned copyright of any original works I make to X doesn't
make X liable to JKR for that instead of me! (I can't assign JKR's copyright
to X - I never had it in the first place).

(Even if I make a derivative work of Harry Potter without permission - so
there will be new copyright which can be assigned to X - that doesn't change
anything. It just means that you'd need both JKR's and X's permission to copy
it. It wouldn't make X liable to JKR).

Not to mention, works doesn't necessarily "belong" to the copyright holder. I
may own a painting, but the artist still hold the copyright on it. Wrong's
generally aren't about 'belonging', anyway. Most restricted things are acts
(e.g. making a copy of a copyrighted work, or communicating it to the public).
Possession of an infringing work is usually only a wrong when coupled with
e.g. intent to sell.

(IANAL)

------
tomx
Are there any other countries where the education systems often reach this
level of legal activity/deliberation/antagonism?

Or do they just quietly get on with teaching students?

------
bane
So I suppose they're also considering paying the students for their work?
Otherwise this will probably last about 5 seconds on a 13th Amendment
challenge.

------
ams6110
The board of ed has forgotten its mission. Its mission is to educate students,
not to profit from the students' works.

------
SeanLuke
Important note: By "DC-area", the Washington Post means the Maryland suburbs.

------
kunai
Whenever I see something like this, I used to furiously bang away at the
keyboard and type a lengthy, long rant, but now I don't even bother.

It's become all too commonplace that I just hang my head in shame and grow
depressed to see my fellow human brothers and sisters become captives of
selfishness and corruption.

------
dinkumthinkum
What possible reason could there be for this, that, in any way, serves the
public? Don't these schools have bigger problems than stealing people's work?
It seems even having this as a discussion is a waste of public funds.

~~~
jbester
This is already pretty common at the college-level.

~~~
krickle
That doesn't make it right.

------
easternmonk
I think the copyright shit is hitting the ceiling now.

------
aaron695
What I find interesting is, it is totally the schools copyright when you think
about it.

There's no way the students would be thinking up what they were without the
collaboration of their teachers.

Sure schools should have special rules, they need to encourage not stifle, but
in any logical sense it is their IP.

------
binarymax
Legality aside, I could go either way on this. Schools are in dire straights
financially. While I understand the gut reaction of how nonsensical the
proposal sounds - if it raises money for the schools to provide better
education, then it may be the lesser of two evils.

Maybe a better solution is some kind of joint copyright (if that's even
possible)? Where one must get permission from the other if they plan on using
it for publication or otherwise.

~~~
noonespecial
So they force you(especially if you're poor or underprivileged) to go to the
school, lirerally at the point of a gun with truancy laws, force you to
complete the assignments, and then appropriate the work for themselves alone
and possibly _profit_ from it.

Oh I think there might be a term for that.

~~~
MichaelApproved
_"force you to complete the assignments."_

I understand that you're forced to go to school but how are you forced to
complete assignments?

~~~
noonespecial
Once they get kids into the system, they have a suprising array of coercive
methods to get students to perform. Vague threats about future actions, social
shaming through posted grades and holding students back as their class moves
on, etc.

I grant you that hard-core slackers laugh at this until they can get away with
dropping out, but a large majority of students will conform to the
physiological pressure to comply.

~~~
tekromancr
I literally did no (assigned) work in High School, failed every class, and
still graduated a year early. It was about 50% moral outrage at the state of
our education system, %40 I could teach myself things better, %10 I was a lazy
arsehole.

~~~
Evbn
Graduated from the school, or ditched the school and got a GED from the state?

~~~
tekromancr
I graduated from the school. They wanted to get me out of there so at the end
of my Sophomore year, they gave me a test, I aced it, and I got to not attend
my senior year. (Strangely, they still let me compete in the Science Olympiad
because I was the only one who knew how to use the GPS)

