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?”

In the three-minute clip (below), Green recounts his attempt to discern the provenance of a poster (pictured) based on characters from his novel The Fault in Our Stars, revealing the complexities of copyright in the digital age along the way.

“We really don’t have a good way of defining the difference between nerdfighters [Green's community of fans] making something on YouTube and Viacom making something on CBS,” says Green. “Until the laws get better, we’re going to have to police ourselves. The good news is the Internet is pretty good at that.”

In the meantime, Green encourages the creation of fan fiction and other art inspired by his books. And the work that started it all? With the permission of his two 16-year-old collaborators, one Norwegian, the other in the Phillipines, Green’s made the poster available on his DFTBA (don’t forget to be awesome) site.

Carrie Russell

Why is it so important that educators understand copyright law?

The purpose of the copyright law is to advance learning by enabling the broad dissemination of knowledge, creative works, and information. Educators are stewards of that purpose for their educational or library community. This means not only that educators and librarians should care about copyright, they’re responsible for defending the educational mission that’s key to the purpose of the law. As professionals, educators and librarians must demonstrate their strong support of users’ rights to information.  One way to do this—understand the exceptions allowed for educators and librarians—and exercise those options. Don’t break the law, but don’t spurn creativity and learning.

What are some of the biggest misconceptions librarians have about copyright law?

Some people think that copyright is a bunch of laws.  It’s just one law—the copyright law of 1976—that that’s changed by amendments, but this does not occur that frequently. Others think that there’s a set of rules that one can follow that provides a safe harbor from liability. The “rules” I’m primarily talking about are fair use guidelines. Guidelines—when you really think about them—are nonsense.

What are some important changes in copyright law that librarians need to know?

Since more and more materials will be acquired through license agreements, copyright law seems less important.  But everything you have with copyright law (fair use, etc,) should transfer to license environment and contract agreements. That would be the gold standard, difficult to achieve, but we need to keep pushing the rights holders to craft licenses that reflect the balance between the rights of users and the interest of rights holders that we see in the copyright law.

What are some important ways that technology has complicated copyright law for educators?

Digital technology—as we all know—makes it possible to copy, distribute, and modify copyrighted works in digital formats. That’s the biggie because one might feel that since this technology enables these functions, one should always be able to use them. And because “everything is on the Web,” it must be free to use—otherwise people wouldn’t post materials on the Web.  So I think educators need to focus even more on what the law is and is not, what is fair use, and what is plagiarism.

Does copyright affect elementary, middle and high school librarians/educators differently?

I am not sure if there is a dramatic difference. There is the issue—when do I start teaching kids about the copyright law?  Third grade? Fifth grade? The reality is you have to teach it all of the time. I’m not talking about giving a lecture every semester.  I am talking about integrating the ideas of creativity and authorship in teaching.

You say copyright never catches up to technology. So what needs to be addressed pretty quickly?

I’m of the opinion that our copyright law is great as it is. The law should be amenable to technological change—flexible enough to be applied.  Fair use allows this flexibility. I don’t believe that Congress intended for copyright law to be rigid—a black and white kind of thing. Crafting the law to address every possible situation isn’t possible and will lead to an overly complex, rule oriented patchwork that will not make sense and will restrict our ability to learn and create, and even impact free expression.

What surprised you the most about your recent informal copyright survey of librarians?

That the majority of the librarians who completed the survey didn’t know the purpose of copyright.

You’ve said that librarians make overly conservative decisions because they’re afraid of copyright litigation. So what’s the most important message that librarians can take away from your book?

I would say “don’t be afraid to think.”  Making fair use determinations is ambiguous—you don’t know if you are right or wrong—but it’s also based on common sense thinking. If you refuse to think, and make conservative decisions—instead of working with teachers and students to carve back excessive copying or online posting while still meeting the desired teaching or learning goal—then you’re doing a disservice to your school. I’m pretty brutal about it. I’d like librarians and educators to feel like they have more involvement with copyright issues and concerns. Take action, think about long term implications of short term decision making, and be flexible—and remember that you have a professional mission and copyright need not get in the way. It should instead enable your mission.