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?