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is the desperate need for money as local and state governments either see tax revenues dropping (from depressed house prices and sales taxes or from deliberate attempts to starve revenues as Republicans slash tax rates on corporations and the wealthy).  We have seen schools and districts selling naming rights to football stadiums, we have seen charging of fees for participation in athletics and other extracurricular activities.

This week the system in which I taught for 17 years before retiring in June went a step further, as we learned in a Washington Post story titled Prince George’s considers copyright policy that takes ownership of students’ work

The article begins as follows:  

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.
I will not quote extensively from the article.  I want to discuss separately the two issues
1.  student work
2.  work created by teachers and other staff members

because these are very much separate issues.

There can be no justification for the former, and I sincerely doubt the legality of such a proposal.

IN the case of things produced by teachers, it depends.

I invite you to keep reading for my discussion of both items, and some additional commentary.

Students in public schools are to some degree mandated to be there.  They are required as a condition of receiving grades and credit to produce papers, projects and tests.  For the school system to assert copyright under such circumstances is nonsense.  

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.
   Things are somewhat different at a post-secondary institution, even one supported by public funds:  
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.
  If such a policy exists the potential student would have the opportunity to be aware of it prior to deciding to attend that institution.   Such sharing agreements typically cover work in scientific and technical research using university laboratories and facilities, and thus are no different than the rights of employers to claim ownership of work product produced under their employment using their facilities.

It is hard to see how this reasoning would apply to one of my high school students who produces a wonderful paper on a topic and I include that in a work which brings me financial benefit.  Under current rules in Prince George's County, teachers are allowed to use student work samples as part of the portfolio submissions for National Board Certification, the application fees of which are paid in part by the school system, and which results in an emolument for those who successfully achieve the certification.   But the student's name does not appear on the work - any reference to a student by name or use of the student in a research project requires prior approval by the central office to ensure rights are not violated.  If the research is part of a dissertation proposal, usually the supervising university will require prior approval under the rules governing human subjects research.

But what about apps and lesson plans produced by teachers?  Is this similar to the examples of work product in the commercial world, where it is well established that the employer has rights to the product, although in the case of patentable work there may be some additional financial benefit to the employee?  My father's brother was a Ph.D. chemist working for a pharmaceutical company in New Jersey.   His name, along with his employer, was on over 100 patents.   He was not wealthy, receiving only a small amount of the additional revenue generated by his creativity, because those patents were produced using company laboratories and supplies where he was being paid to do precisely that research.

According to the article, the policy arose as part of an examination of the broader use of technology in the classroom, and began after the chair and vice-chair of the board

) attended an Apple presentation and learned how teachers can use apps to create new curricula. The proposal was designed to make it clear who owns teacher-developed curricula created while using apps on iPads that are school property, Jacobs said.

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.

So let me parse this.

The school system provides me with an I-Pad to do school work - whether an I-pad or a computer, it is school property.  One might argue that what I produce on it is therefore school property.

But what if I am allowed to use that computer for personal purposes?  In my last school I was provided with a school laptop (which I rarely used and never took home - it served primarily as a resource in my classroom for my students).  I taught government.  What if on my own time using that computer - or nowadays a table - I created an app that was not for use in my class?  Could the school system assert ownership of that as well?  

Here I might warn school systems that once they begin to assert such rights, including to work done by teachers outside of the school hours, they are on far shakier grounds, unless they are providing additional compensation.  Let me see if I can provide some context.  Many schools and systems pay staff to work on weekends or during breaks in order to wrie curriculum FOR THE SCHOOL (system).  In that case it is clearly work product for which the school or system has already compensated the employee and the ownership question is clear.

Similarly, if a school or system pays for an employee to attend a workshop or training, the materials received during that paid for training are the property of the entity paying for the training - although that right is rarely asserted (I have most of the materials I received as part of training for which the school or the system paid even though I left their employee).

I would argue that if the school system wants to assert copyright on what I produce on my own time it is on far shakier ground, and may create the unintended consequence of teachers refusing to do work on their own time -  remember that "on their own time" means time for which one is not compensated.  I will tell you right now that American public education would grind to a halt were teachers to work to rule - to do no work outside of the hours for which they are paid.  If my assigned work hours were 8-3:30 with students attending classes between 8-3, in theory I - and all other teachers - could refuse to do any work before  8 or after 3 (there are specific times such as back to school night or staff meetings that fall outside those statutory hours which are spelled out and are mandatory).  

So why this proposal?  

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.

A side note - if you attended Netroots Nation in Minneapolis, Kevin Welner was one of the panelists on the education panel organized by Jeff Bryant.  His National Education Policy Center is an important institution in debunking much of what is promulgated as "research" -  the Think Tank project turns to scholars who analyze various studies and policy briefs that are  being used to drive education in the direction too often labeled as reform and which might better be described as commercialization, privatization, and deform.

You will note that the board began exploring this approach after its leadership attended a workshop by a commercial vendor, in this case Apple Computer.  

The idea does not occur in isolation.   If you take tests offered by the College Board or ETS, what you produce on those tests are the property of the test company.  They effectively claim copyright over something you pay them to create, in return for the service they are providing you and various educational institutions.  That is how they can produce study materials with sample essays, and it is also how they train those of us who score written responses on things such as the AP exams - they use real papers as sample or anchor papers to prepare people to score according to a rubric.

Still, since you are not required by law or regulation to take such tests - except in the case where the tests are requirements for licensing - and since even in the case of licensing, it is a voluntary activity, unlike attendance at K-12 school (and the availability of non-public alternatives such as home schooling or private institutions does not really change the definition of public schooling as mandated - it is that you are allowed on your own dime and your own time to provide an alternative to mandatory schooling).

I will not argue that what the Prince George's County Board of Education is doing represents a further commercialization of public education, although I think that argument has validity.

My concern is rather that it is an inappropriate claim upon the intellectual property of students and in many cases teachers.

In that sense it seems of a piece with so many other things that are wrong in our society, driven by money and profit.  

That includes the entire thrust of the privatization of the commons, be it public schools, prisons, selling off of publicly owned utilities - in this latter case the state of North Carolina is taking over and forcing a sale of a municipally owned water system in the city of Ashville.

I see this as part of a larger problem.

I see things like this as likely to occur more frequently, especially as both economic circumstances and deliberate policies starve schools and school systems of the resources they need to properly provide complete educational opportunities for students.

It saddens me.

In this case, it outrages me.

What about you?

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Comment Preferences

  •  Having been awake all night and needing sleep (16+ / 0-)

    I'll not pretend to say anything witty or brilliant --- except to share that I too am saddened that almost everything about American society today seems to come with a price tag attached.

    Often with no or little value.

    I share your outrage.

  •  There is an excellent article on HuffPo (17+ / 0-)

    this morning about the declining benefits of patents on creativity due to Balkanization of the process.  Huge lawsuits over things like rounded corners on devices and double-taps on screens stifle creativity rather than enhance it.  This is protectionism at its worst.  Story link below:

    http://www.huffingtonpost.com/...

    If a school were to try and claim ownership of the creative work of one of my kids, you can bet I would not acquiesce quietly.  I can accept, for example, the university having an interest in the work my older son did on paper destroying fungus, because he used their lab and electron microscope.  But his creative writing at home?  No way, no matter whether it was a class assignment or not.

    The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. - Sun Tzu

    by Otteray Scribe on Wed Feb 06, 2013 at 04:39:22 AM PST

    •  I read that article; it's not worth much. (5+ / 0-)

      God save us from two economists who think the know how to "fix" the patenting system as applied to an industry (pharma) they clearly do not understand.  I note they state in the article that other approaches to protecting innovation could be viable, but those approaches aren't described, meaning they're not worth much.

      With respect to copyrights on grade/high school students' works, that is just attempted theft by schools considering it, nothing less.

      The road to Hell is paved with pragmatism.

      by TheOrchid on Wed Feb 06, 2013 at 06:40:57 AM PST

      [ Parent ]

      •  Having filed three patent applications myself (0+ / 0-)

        and having received two notices of allowance, I think I have a right to say they are on to something.

        Patents are merely a nuisance except for drugs since the required written claims implicitly provide a basis for avoidance.

        What generally makes a drug patent valuable is the requirement for expensive multi-year FDA approval plus the government requirements that insurers pay for the drugs prescribed by doctors, who may be investors in the drug company, at the price asked.

        This has been topped off by a recent law that requires insurers accept as customers the people who need expensive drugs and that even healthy people buy insurance or pay a fine of $695/year/person.

        I personally think that the broad-scope Kirchoff chemical patents that generally cover drugs should have to be collapsed to the FDA approved molecule.

        India and pre-war Germany traditionally only allowed patents to cover the manufactiure of the drug molecule and not the drug molecule itself.

        Britain tradionally paid for drugs on an investment return basis much like utilities have been regulated in the US, but at a higher return rate since drug discovery was once a very risky business.

        The main risk now is lawsuits based on nasty side effects discovered after FDA approval or ignored for short-term massive profits.

        •  I'm a patent attorney. (0+ / 0-)

          So I think I have a right to say they're off base.  First, let me congratulate you for your Notices of Allowance; they're not easy to come by these days.

          However, I disagree with much of the rest of what you say.  Far from being a nuisance, they are practically the first thing any tech (bio or otherwise) thinks of when starting up, and in the bio space, they are practically the only assets for many startups.  They are the promise of value that brings in investors who can actually fund getting something to market.

          Drug discovery still IS a very risky venture.  Only about 15% of small molecules that start Phase I clinical trials actually make it past Phase II to approval nd marketing.  And that ignores a significant amount of time, effort, and expense involved in just identifying potential lead candidates, out of hundreds of thousands of potential candidates, that make it to Phase I in the first place.  Collapsing patents to the FDA-approved molecule?  That ignores--and devalues--all of the work devoted to developing the class of molecules out of which that FDA-approved one was plucked.  If my company spent a ton of $$ developing a molecule, why shouldn't it own rights to that molecule?  There isn't any.

          And the statement that patents are a nuisance because "the required written claims implicitly provide a basis for avoidance" is a non-sequitur.  It's as if you were arguing that a fence around someone else's property is a nuisance because it implicitly provides a basis for avoiding that property.  It's MEANT to, and the claims of a patent are meant to show others in the field how they can avoid the claimed property.

          To repeat, God save us from economists who think they know how to "fix" the patent system in this country.

          The road to Hell is paved with pragmatism.

          by TheOrchid on Wed Feb 06, 2013 at 12:10:05 PM PST

          [ Parent ]

          •  It would own the right to the molecule (0+ / 0-)

            but no longer to the Kirchoff class.

            The Phase III part is the really expensive part.

          •  15% is still better odds than (0+ / 0-)

            fiunding a 10-bagger in the stock market.

          •  The company picks the molecules (0+ / 0-)

            and does (or pays for) the testing.

            The company generally just submits the best one it has found to the FDA.

            Let others look for better molecules at their expense.

          •  A few hundred thousand patents (0+ / 0-)

            are not a fence, they are a minefield.

            And as a patent attorney you should know words count.

            And in many cases the English language is not distinctive enough to write a really effective claim.

            I own many dictionaries including crossword puzzle dictionaries and thesauruses.

            Drugs being chemicals, are based on atoms (C, S, H ,O ,N) which can be clearly and distinctly described and inventions like drugs and chemicals can be well-protected by a patent system.

            A patent system that protects inventions via words is only as good as the language and since the English language is very much abused the US pantent system for inventions that must be described by words is not very good or effective.

            A mine is an effective weapon of war, but a soldier if he knows it is there can step around it.

          •  so effectively it is a mainly a mere nuisance (0+ / 0-)

            like dog dirt on a sidewalk

            the claims of a patent are meant to show others in the field how they can avoid the claimed property.
            except to large companies that until recently were able to map out and navigate through the patent minefield

            It's time to end the patent-based minefield cartel system.

            I would only allow for chemical patents.

            And I would have FDA approval collapse down Kirchoff patents to just the approved molecule unless it is agreed that the drug will be supplied at an individually affordable price.

            •  You rproposal is functionally unworkable. -eom- (0+ / 0-)

              The road to Hell is paved with pragmatism.

              by TheOrchid on Wed Feb 06, 2013 at 05:46:04 PM PST

              [ Parent ]

              •  I'm sure a patent examiner (0+ / 0-)

                would say it's obviously simple for the submitting drug company to effectively do along with paying say an FDA approval issue fee. The drug company could be required to give a list of the relevant Kirchoff patent numbers to either the Patent Office or FDA.

                It's "not much" of a problem to do if I may paraphrase you.

                The problem could also be dealt in a court with proof of FDA approval, an official FDA certified copy of the description of the plaintiff's FDA approved molecule(s), and a motion by the defendent's lawyer to dismiss the patent infringement case.

                The plaintiff would have supplied the court with all the relevant Kirchoff patents and a description of the defendent's molecule, which would legally be required to be different from the plaintiff's approved molecule(s).

  •  In Kansas this has already gone wrong (23+ / 0-)

    My child's school has already asserted a claim to my child's artwork. The art teacher, at the direction of the school, loads digital images of students' intellectual property onto a third-party site for sale to the public. The school gets a cut. The artist gets nothing. While it is sold as a way to let grandma have a plate with Junior's finger painting on it, it's still at best borderline theft.

    I explicitly denied permission for my child's work to be used in that way. In doing so, I discovered that the school had released my child's identifying information to yet another third-party entity to allow that group to establish accounts in my child's name on "companion websites" like the art store. This strikes me, a non-lawyer, as identity theft.

    You're right, Ken. This slope is both slippery and dangerous.

    Show and don't tell. Demonstrate your point rather than explaining your point. -Rachael Maddow

    by galvarn on Wed Feb 06, 2013 at 05:02:57 AM PST

  •  This is grossly unfair (11+ / 0-)

    Ownership restrictions like this are not uncommon in employment contracts, and in higher education.  For example, the work my graduate students do officially is mine and the universities. (There is a sound tradition of helping students and postdoc's develop their "walking project", and it is very good to be able to continue collaboration with a now equal partner as a new faculty member).

    The difference is that you don't have to work for a given employer and you don't have to go to graduate school.  You do have to go to elementary school. So there is no relevant notion of free consent to a restrictive clause.

  •  I am not surprised. But as an artist, if a school (17+ / 0-)

    tried to (c) my kids work, I would have their ass in court. That is the child's intellectual property, and since the schools cannot own the child, they have no claim on what the child produces.

    Even in college, the school has no right to the works I wrote or the pieces I might draw or paint. It's mine, I get credit for it. And if I choose to sell it or expand it and then sell it, that's still my intellectual property.

    So how much of this can be traced back to ALEC? Because it reeks of that sort of malarkey.

    I don't know about the lesson plans of teachers, and how much claim the school can lay to that. What kind of compensation do they offer?

    If one creates an original work that becomes popular and used frequently--how will the creator be compensated for this achievement? Especially now that schools seem to be moving away from tenure.

    Thank you for posting this Teacherken. I hope things are going better with your family.

  •  And people wonder... (9+ / 0-)

    Why there's so few students choosing art or creative fields anymore.

    If you choose to be an artist in today's marketplace... there are a thousand business majors ready to swoop in and deny you the fruits of your labor.

    (Sorry, switched my major back to Theater recently, and my classes are empty.  Only class I had any difficulty getting into was the Public Speaking class, and that's because it's a general ed requirement. )

    I don't blame Christians. I blame Stupid. Which sadly is a much more popular religion these days.

    by detroitmechworks on Wed Feb 06, 2013 at 07:07:43 AM PST

  •  profit profit profit (6+ / 0-)

    corporatize everything

    even public education is a corporation

    so why don't more of you join our anti-capitalist group?

    because we ain't stopping this unless we move beyond capitalism

    ownership is a lie

    it is easy to see here, but less so when we own a plot of land and a tree on it that will outlive us, sometimes by a century or more

    we are passing through

    the human race owes a lot to the human race but nothing to individuals or corporations

    Donate to Occupy Wall Street here: http://nycga.cc/donate/

    by BlueDragon on Wed Feb 06, 2013 at 07:22:28 AM PST

  •  administration costs (4+ / 0-)
    Recommended by:
    Oh Mary Oh, texasmom, elwior, JerryNA

    have been skyrocketing at colleges and universities - is the same true in lower levels?  I don't see how it could be, but I'd like to know

    www.tapestryofbronze.com

    by chloris creator on Wed Feb 06, 2013 at 07:33:44 AM PST

  •  Funding and IP (5+ / 0-)

    I agree about the funding issue--something has GOT to be done about improving the way school funding is raised. Property taxes tank in bad years, at a time when our kids need education the most. I know Certain People believe that if they have no kids in the school system, they shouldn't have to pay for schools, but we all know that's a crock of shit. I, for one, prefer that the cashier at Wendy's knows how to make correct change.

    IP (intellectual property) has increasingly become a bone of contention between companies and employees, and I'm sorry to see it spreading to the academic world. Back in the Jurassic age when I started in the workforce, IP/inventions/copyright agreements were only for specialized employees whose job it was to create for the company. My last 3 employers demanded I sign agreements that gave them ownership of everything I wrote/designed/invented during my employment with them, regardless of time of day or equipment used. In each case, the company brought up the subject of the mandatory agreement AFTER they hired me, with the implied (and in once case, explicit) threat of firing me if I didn't sign. I signed the first two reluctantly, and negotiated to carve out some significant exclusions in the third one, but it still rankles.

    The next time I have to change employers, when they ask for a desired salary range, I'll give them two figures, my baseline and a 15% higher one if they require an IP agreement.


    + + + That crazy neighbor, you know, the one with all those cats

    by cvannatta on Wed Feb 06, 2013 at 07:41:48 AM PST

  •  The government should not be allowed copyrights (5+ / 0-)

    If anything, I could see a declaration that the work of students and teachers is public domain, bit definitely not to be copyrighted.  We really need to overhaul and restore copyright laws in this country to benefit the people rather than corporations.

  •  I believe Germany and Japan (0+ / 0-)

    legally provide that inventors on a company payroll have a right to a cut of royalties paid by third parties. Of course, patents for things other than drugs are often cross-licensed and only small royalties paid if at all.

    As for a county trying to grab a teacher's copyrights, I think it is going too far since teachers are paid based on a standard pay schedule and no negotiation is made to prospectively pay an individual teacher more in advance in anticipation of the production of valuable copyrights.

    Also if every school district tried to get into the K-12 copyright market, you'd have thousands of districts trying to peddle copyrights to nearly identical stuff and prices would drop to nearly nothing.

    Lastly, specialized educational material providers have dedicated people working full-time for years and can therefore produce more refined products.

  •  As for trying to grab a kid's copyrights (4+ / 0-)

    kids are forced by law to attend school and no contractual relationship exists.

    Also, kids are too young to contract and schools as guardians must act to protect the interests of a child and not exploit the child.

  •  This brings up a wealth of (4+ / 0-)

    weedy questions.  How might a school's claim be applied if a student amplified a class assignment paper for entry into a cash scholarship contest and won? One of our boys did that.  What about using excerpts of school essays on applications for college scholarships?  Both of ours did that, too.

    I also wonder about the "work product" of talented musicians and actors. What if the talented young musician is playing a school owned instrument?

    The truth always matters.

    by texasmom on Wed Feb 06, 2013 at 08:34:43 AM PST

  •  About a century ago a company tried (1+ / 0-)
    Recommended by:
    elwior

    to grab up all the music copyrights.

    As a result the law was changed where music copyrights were subject to compulsory licenses. Apple, who has profited mightly, should bear copyright history in mind.

    In many countries until recently patents were subject to compulsory licenses.

    Drugs still are under TRIPS 31, except for the US and maybe a few other countries.

    All the top kids are much smarter than in decades past. They get nearly perfect scores on the objective portions of the SAT. They are much smarter than the top kids decades ago.

    That anything wouldn't be obvious to them in their chosen field should be looked on with scepticism.  Perhaps, only specific drug molecules are non-obvious and patentable. Even thirty years ago, I was a "gun" for hire willing to do any computer-related job that paid decently.

  •  The constant scamming (1+ / 0-)
    Recommended by:
    elwior

    undermines itself.

    If I happen to earn lots of money and buy a fancy house and then have to pay increasing sums to flush the toilet or get into town, then the value of the house will decrease.

    Maybe I shouldn't pay so much for the house.

    Maybe I shouldn't bother buying a fancy house.

    Maybe I shouldn't try to earn lots of money to buy a fancy house.

    Maybe I shouldn't start my own business to earn lots of money....

  •  "desperate need for money" (1+ / 0-)
    Recommended by:
    cocinero

    It is a symptom of a badly structured society.

    Humans are potentially far more productive than in the past. There shouldn't be "desperate need for money" anywhere in the USA.

  •  This is HorseHocky... (0+ / 0-)

    A good lawyer will demolish this in court....

    "Death is the winner in any war." - Nightwish/Imaginareum/Song of myself.

    by doingbusinessas on Wed Feb 06, 2013 at 09:47:14 AM PST

  •  Turnitin, (0+ / 0-)

    the software that some schools use to reduce plagiarism, seems to violate student copyright, but the U.S. courts have ruled otherwise. See http://en.wikipedia.org/.... The problem comes when students are obligated to submit papers through the site, and in doing so, accept an agreement that lets the company that owns Turnitin use those papers to further build their database. I don't know if Prince George's school district uses this software, but it would make for an interesting conflict between the district and the software company if the district tried to profit from a student paper.

  •  Some university students are also employees (0+ / 0-)

    if they are TAs or research assistants. Things they develop doing scientific research in school labs probably belong to the university (if they have commercial value), but the students certainly deserve recognition in publications, etc.

  •  athletics (0+ / 0-)
    3-kids it costs me 900 per month to keep them in sports. When I was a kid, all of these sports were offered at my school.
    http://temecula.patch.com/...

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