The Washington Post | February 03, 2013
By Ovetta Wiggins

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.”

The proposal is part of a broader policy the board is reviewing that would provide guidelines for the “use and creation” of materials developed by employees and students. The boards’s staff recommended the policy largely to address the increased use of technology in the classroom.

Board Chair Verjeana M. Jacobs (District 5) said she and Vice Chair Carolyn M. Boston (District 6) 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.

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.

Welner said teachers have always looked for ways to develop materials to reach their students, but “in the brave new world of software development, there might be more opportunity to be creative in ways that could reach beyond that specific teacher’s classroom.”

Still, Welner said he doesn’t see the policy affecting teacher behavior.

“Within a large district, there might be some who would invest a lot of time into something that might be marketable, but most teachers invest their time in teaching for the immediate need of their students and this wouldn’t change that,” he said.

But it is the broad sweep of the proposed policy that has raised concerns.

“Works created by employees and/or students specifically for use by the Prince George’s County Public Schools or a specific school or department within PGCPS, are properties of the Board of Education even if created on the employee’s or student’s time and with the use of their materials,” the policy reads. “Further, works created during school/work hours, with the use of school system materials, and within the scope of an employee’s position or student’s classroom work assignment(s) are the properties of the Board of Education.”

Questioned about the policy after it was introduced, Jacobs said it was never the board’s “intention to declare ownership” of students’ work.

“Counsel needs to restructure the language,” Jacobs said. “We want the district to get the recognition .?.?. not take their work.”

Jacobs said last week that it was possible amendments could be made to the policy at the board’s next meeting. The board approved the policy for consideration by a vote of 8 to 1 last month but has removed the item from its agenda Thursday.

School systems in the Washington region have policies that address the use of copyrighted materials, but none has rules that allow ownership of what a student creates, officials said. Some do address ownership of employees’ work.

The District holds common law copyright, at a minimum, to all relevant intellectual property its city and school employees create, a spokeswoman said.

In Montgomery County, the school system says supplies, equipment or instructional materials that are made by a school employee using “substantial time, facilities or materials” belonging to the system become the property of the public schools. If the activity is performed partially on private time and partially on public time, the school superintendent will approve the arrangement, according to the district’s conflict-of-interest policy.

Peter Jaszi, a law professor with the Glushko-Samuelson Intellectual Property Law Clinic at American University, called the proposal in Prince George’s “sufficiently extreme.”

Jaszi said the policy sends the wrong message to students about respecting copyright. He also questioned whether the policy, as it applies to students, would be legal.

He said there would have to be an agreement between the student and the board to allow the copyright of his or her work. A company or organization cannot impose copyright on “someone by saying it is so,” Jaszi said. “That seems to be the fundamental difficulty with this.”

Cahn said he understands the board’s move regarding an employee’s work, but he called the policy affecting the students “immoral.”

“It’s like they are exploiting the kids,” he said.

For Adrienne Paul and her sister, Abigail Schiavello, who wrote a 28-page book more than a decade ago in elementary school for a project that landed them a national television interview with Rosie O’Donnell and a $10,000 check from the American Cancer Society, the policy — had it been in effect — would have meant they would not have been able to sell the rights to “Our Mom Has Cancer.” 

Dawn Ackerman, their mother, said she would have obtained legal advice if there had been a policy like the one being considered when her daughters wrote their book about her fight against cancer 14 years ago.

“I really would have objected to that,” Ackerman said.

Paul agreed, saying the policy seems to be ill-conceived. It could stifle a child’s creativity and strip students and their families of what is rightfully theirs, she said.

“I think if you paint a picture, publish a book or create an invention as a kid, your family — certainly not the school board — should have the rights to that,” she said.