Earlier this month, Prince George’s County (MD) Board of Education made waves when it proposed a draft copyright policy that, if implemented, could grant the district sweeping copyrights to all works produced by staff as well as students—including lesson plans, digital apps, and other original, creative works. Although the policy is currently on hold and under legal review, according to a district spokesman, the proposal reignited widespread debate about the fairness of copyright guidelines in the K–12 arena, guidelines which have never been quite as delineated as those in academia.
Some of the most vocal opponents to the draft policy have zeroed in on how it would apply to student works, which, they argue, is likely unlawful. Yet what about works created by teachers and other school staffers, like librarians? How would such a policy apply to them? Do classroom materials, digital apps, and other original works produced by teachers and librarians—even on their own time and using their own computers at home—automatically belong to the district under current copyright law’s “work-for-hire” provision?
School Library Journal caught up with Carrie Russell, the American Library Association’s copyright expert, to talk about the implications that these types of district-wide copyright policies raise, the lawfulness of such policies, and a variety of ways that teachers and librarians seeking to join the conversation can help preserve the rights of content creators in their own district.
Her first impressions of the draft policy when it was announced? “Well, I thought it was lame,” she tells SLJ. “I thought, ‘What are they thinking?’ Because it’s only going to get people all worked up! I thought, ‘It probably won’t happen—how are they going to market this work?’ It seems crazy.”
And just as she anticipated, the school board met with much opposition from parents, teachers, and other school staffers—and has not yet proceeded with implementation of the policy.
“We apologize for any confusion that may have been caused by a recent article…regarding a ‘draft’ copyright policy that we are currently developing in preparation for our implementation of the new Common Core Standards,” Briant K. Coleman, spokesperson for the Prince George’s County Public Schools, tells SLJ. “The article does not accurately portray the intent of the ‘draft’ policy. Please know that we would never try to impede on the creativity of our students, teachers, and employees. In fact we encourage it. The policy is currently on hold and under legal review until further notice.”
Despite not being implemented, the policy still sparked tons of renewed interest and questions on these issues—questions that Russell has been fielding every day since, she says.
“I know a librarian who teaches online; every semester I answer her students’ questions about copyright. And I’m getting all these questions about work-for-hire. It’s really on their minds quite a bit,” Russell says. “There’s always been interest in this topic, but as I’m doing this blog, the first five questions are all about work-for-hire. On listservs and blogs, stuff like that, people are starting to talk and ask the questions that they previously asked in a different meeting, in a different framework.”
Surprisingly, Russell says, one of the biggest concerns among teachers and librarians is not one of copyright for the sake of compensation, but for the sake of being credited for one’s authorship. “I think that some of the things the school teachers don’t understand is that they think that [copyright law] means that they’re not the author. And I tell them, ‘you’re still the author; you’re always the author; (maybe) you just don’t hold the rights.’ And I think they feel they’re not getting credit.”
One legal expert SLJ spoke to actually says the legal precedent might be quite thin to support the idea that teacher-created school materials automatically should be classified as work-for-hire. That means that teachers and librarians could legally claim copyright on some of their works. Russell agrees.
“One of the things I tell teachers is that it’s more clear [that a creation falls under ‘work-for-hire’] when you’re doing actual work that you’ve been [assigned] to do,” she explains. “For ALA, I write all kinds of things that go on the website or are distributed. In fact, we don’t even attribute papers to people generally. But I know that this is why I was hired, this is the stuff I agreed to do.”
She adds, “If a teacher tells me, ‘We have to rewrite math units because of the Common Core standards,’ that seems like something that she’s been [assigned] to do. So it seems a bit more clear [that it is work-for-hire] than someone who is developing a lesson plan or writing an essay on how to greet students at the beginning of the year.”
Russell acknowledges the common practice of self-motivated teachers and librarians who create their own materials and lesson plans despite being provided with materials by their school or districts. They are not assigned the task of creating the materials, but create them on their own time and using their own resources; in those cases, they could likely claim copyright, she says.
“When they are creating an original lesson plan, copyright attaches immediately,” Russell tells SLJ. “They don’t have to register it or anything; the copyright attaches to them as the creator. So they automatically get the exclusive rights of copyright. [But] copyrights are divisible.”
That means that teachers and librarians could develop policies with their schools and districts that grant the districts, for example, nonexclusive rights to publish the works on a district website, Russell says. “They could do that in a creative commons way,” she adds. “They might say, ‘I will give the district a nonexclusive right to reproduce this lesson plan without my permission.’ So if it’s nonexclusive to the district, there are other people [the teacher or librarian] could give it to; they don’t have to worry.”
By granting nonexclusive rights to the district, the teacher or librarian who created the work can still present it at a conference, share it with colleagues or friends, or even sell it, Russell notes, adding that many teachers and librarians across the country are already working out these types of arrangements informally, without even worrying about legal issues. “People just have a general understanding,” she says. “Sometimes the copyright law makes it more confusing. And I think it makes people feel more cheated. If you just kind of left it alone, you would probably have no problems.”
From that point of view, teachers and librarians wouldn’t really need to consult a lawyer in order to develop these types of policies with their schools and districts, Russell says. “They just decide what they want to allow the school to be able to do with their work; this, that, and the other. [Then the district doesn’t] have to come back and ask [each time] if they’re going to use it this way or that way; if they used it the previous semester, fine, they can use it every semester. Period.”
Advises RusselI, “I think for star teachers who are doing a lot of innovative stuff, it behooves them to have an understanding of what rights they want to give away. [But] I think in an everyday kind of instance—like redoing the math units or something—l just think it should be handled informally.
“What does your common sense tell you?”