Legal theft: Education institutions claim copyright ownership of teacher and student work

3 Feb

Here’s today’s COMMENT FROM AN OLD FART: Moi read with interest that Prince Georges County was considering taking copyright ownership of student work. Ovetta Wiggins reports in the Washington Post article, Prince George’s considers copyright policy that takes ownership of students’ work:

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 measure has some worried that by the system claiming ownership to the work of others, creativity could be stifled and there would be little incentive to come up with innovative ways to educate students. Some have questioned the legality of the proposal as it relates to students.

“There is something inherently wrong with that,” David Cahn, an education activist who regularly attends county school board meetings, said before the board’s vote to consider the policy. “There are better ways to do this than to take away a person’s rights.”

If the policy is approved, the county would become the only jurisdiction in the Washington region where the school board assumes ownership of work done by the school system’s staff and students.

David Rein, a lawyer and adjunct law professor who teaches intellectual property at the University of Missouri in Kansas City, said he had never heard of a local school board enacting a policy allowing it to hold the copyright for a student’s work.

Universities generally have “sharing agreements” for work created by professors and college students, Rein said. Under those agreements, a university, professor and student typically would benefit from a project, he said.

“The way this policy is written, it essentially says if a student writes a paper, goes home and polishes it up and expands it, the school district can knock on the door and say, ‘We want a piece of that,’ ” Rein said. “I can’t imagine that.” 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?wpisrc=emailtoafriend

The Free Dictionary defines theft:

A criminal act in which property belonging to another is taken without that person’s consent.

The term theft is sometimes used synonymously with Larceny. Theft, however, is actually a broader term, encompassing many forms of deceitful taking of property, including swindling, Embezzlement, and False Pretenses. Some states categorize all these offenses under a single statutory crime of theft.

OK, moi gets that BIG INSTITUTIONS have been able to manipulate the rules to benefit them and their flow of $$$$. But, shouldn’t the game be fair???? Also, Prince Georges wants to take control of student creations. Really.

Here is an explanation from the UCLA Office of Intellectual Property and Industry Sponsored Research:

Who is an author and who is an owner?

Under the copyright law, the creator of the original expression in a work is its author. The author of a copyright is not the same thing as the owner of the copyright, although in many instances the author is also the owner.  See below.

Who is the owner?

Ownership of copyrightable works created at UCLA is determined in accordance with the UC 1992 Policy on Copyright Ownership. See the Who Owns What Chart and the UC Copyright Policy: www.universityofcalifornia.edu/copyright/systemwide/pcoi.html.

In general, copyrights are owned by the people who create the works of expression, with some important exceptions:

  • If a work is created by an employee of UCLA in the course of his or her employment, UCLA owns the copyright.

  • In most cases, the general rule is that faculty own those copyrightable works that they create as scholarly or aesthetic works. There are some exceptions, generally determined by project funding.

  • In most cases, course work and syllabi that you create are your own, unless “exceptional university resources” or sponsored or departmental funds are used in the creation.

  • If you create the work in the course of sponsored research, or using special departmental funds, or are otherwise relying upon “exceptional university resources,” UCLA likely owns the copyright and you should disclose it to OIP for further evaluation and discussion.

  • Works that are “made for hire” are generally the property of the organization that hired the contractor. Therefore, if you pay an outside vendor to create or assist in creation of a potentially copyrightable work, such as software, photographs, or video/film footage, you should be sure to have an advance, written agreement which specifies that the vendor is doing a “work for hire” and also agrees to assign all rights to the Regents. Feel free to contact OIP at 310-794-0558 for suggested language.                                 https://oip.ucla.edu/copyright/authorship-and-ownership

UCLA’s policy is typical of large research universities. It is not just universities who are claiming copyright in work product.

Tim Walker writes at the NEA site in the article, Legal Controversy Over Lesson Plans:

Anyway, if everybody sells everything on the Web, the thinking goes, then why can’t teachers peddle their lesson plans – original content created on their own time – over the Internet?

Maybe because there is a good chance that you don’t actually own the copyright to the classroom materials you produce.

Intellectual Property: It’s Complicated

“This is a legal issue,” says Cynthia Chmielewski of NEA’s Office of General Counsel. “So if you want to sell your lesson plans online, make sure you actually own them.”

As far as Carol Sanders is concerned, she does.

“This is America,” says Sanders, a veteran English teacher in Brooten, Minnesota. “My district does not own me. And I own what I create for the classroom.”

Right on the first two counts, but does Sanders also “own” the teaching materials she produces?

The short answer is . . . it depends.

If your employment contract assigns copyright ownership of materials produced for the classroom to the teacher, then you probably have a green light. Absent any written agreement, however, the Copyright Act of 1976 stipulates that materials created by teachers in the scope of their employment are deemed “works for hire” and therefore the school owns them.

Sanders and many of her colleagues, however, believe that if they create materials on their own time, using their own equipment, they surely have the right to do with them as they please.

“Under the law,” explains Chmielewski, “this may not make a difference. The issue is whether you created the materials as part of your job duties.”

In 2004, a federal appellate court in New York ruled that “tests, quizzes, homework problems, and other teaching materials” were works made for hire owned by the district and that the “academic tradition” of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication. http://www.nea.org/home/37583.htm

Way back in the day, 1956, to be exact, C. Wright Mills wrote The Power Elite which talked about the concentration of power in the hands of a few. Mark Toma updated and explained Wright at Economist’s View in 2009.

In “The Power Elite” Toma opines:

So what is Mills’s theory, exactly? It is that there is a small subset of the American population that (1) possess a number of social characteristics in common (for example, elite university educations, membership in certain civic organizations); (2) are socially interconnected with each other through marriage, friendship, and business relationship; (3) occupy social positions that give them a durable ability to make a large number of the most momentous decisions for American society; (4) are largely insulated from effective oversight from democratic institutions (press, regulatory system, political constraint). They are an elite; they are a socially interconnected group; they possess durable power; and they are little constrained by open and democratic processes.                                         http://economistsview.typepad.com/economistsview/2009/07/the-power-elite.html

BIG educational institutions are simply the part of “power elite” and they will operate just like “too big to fail” banks, unions, and untouchable lobbyists and dysfunctional government. Their only interest is their self-preservation.

Where information leads to Hope. ©                 Dr. Wilda.com

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