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Subject: development of an education license or license option for Creative Commons

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  • From: "Dennis Kim-Prieto" <dprieto AT kinoy.rutgers.edu>
  • To: <cc-education AT lists.ibiblio.org>
  • Subject: Re: [cc-education] Teacherhost using ccHost and Schoo ldistrictsowning copyright over educational ma
  • Date: Wed, 26 Apr 2006 14:26:07 -0400

Nonsensical? Greedy? You'll get no argument from me on either of those
points. But I'm not sure that the public/private sector dichotomy you
mention below adequately addresses this: for instance, in my example about
universities claiming copyright in professors' published works, I was
thinking explicitly of public universities, and this holds despite the
educational value of published research or creative works.

And remember that while state school districts may all be subordinate to the
state department of ed, depending upon how the state in question has
structured the governmental aspects of education, a school district in
California has absolutely no tie to a school district in Massachusetts,
Oregon, Hawaii, or any of the other 46 states in the Union. The federal DoE
only has as much power as it's checks allow it: should a state decide, for
example (as I've heard Utah is considering) not to accept federal funding,
then federal DoE would have absolutely no jurisdiction over the public
schools in that state. Public education is almost universally a matter for
state law, save for trust territories, DoD schools, and the like.

However, I'm not capable of speaking adequately to the justifications or
rationales that any given state educational administrator might trot out in
support of retaining copyright protection in works created by teachers.



>>> RUGGESM AT pwcs.edu 04/26/06 02:15PM >>>
In the private sector I could see this being the case...but in the public
sector it would set a dangerous precedent for public funds used for
prohibiting material from being used non-commercially/shared among
colleagues...and how could one district prohibit sharing with another when
they are all part of the Dept of Ed?

A bit nonsensical if you ask me...and just a prime example of the absurdity
of the concept of intellectual ownership, which seems to be sweeping the
globe.

The goal of the site is for teachers to share with one another the materials
they create.

Sean Rugge
Instructional Technology Resource Teacher
Saunders Middle School
(703)-670-9188 x289
ruggesm AT pwcs.edu

Sharing educational materials online at
http://www.esolpc.com/teacherhost



>>> "Dennis Kim-Prieto" <dprieto AT kinoy.rutgers.edu> 04/26/06 1:57 PM >>>

Sean:

You may be thinking of the copyright doctrine known as "works for hire,"
which allows an employer who has taken the economic risk associated with
creating the work to claim copyright in that work. In order to be a "work
for hire," it must fall under one of two categories: the work must either be
prepared by an employee within the ordinary course of employment, or it must
have been commissioned or otherwise specially ordered by a contractor for
that purpose. If a public school system is an employer, and if they
regularly employ teachers and ask them to create original educational
materials to be used in their courses, then it seems to me that most courts
would have no problem looking at this work as "work for hire," and therefore
subject to the copyright of the public school system.

However, note that facts, lists, and instructions, are not, by themselves,
original enough to be protected by copyright. Recipes, for example, are not
in and of themselves protected by copyright (which is one reason why
cookbooks rely upon photographs, prefatory material, and often use
trademarked names or other material to clear the bar of originality).
Whether a lesson plan is more like a recipe or more like an essay, however, I
can't really answer. If you feel you have a claim, you may want to seek
counsel.

Universities regularly assert their copyrights in the works of professors who
publish for tenure. But more ominously, mere educational use is not (and may
never have been) enough to allow for fair use. I think that your reliance on
cc licenses may be the best bet for allowing open in-class access to these
materials, but then, I'm not your employer, and I can't say how your employer
would react to this proposal.

To close by answering one of your later questions, there is, apparently, no
incentive for a teacher to be creative and to invent new lesson plans. But
then, my own experience with public school systems left me with the
impression that they never really did view creativity as a desirable
characteristic for their employees.



Hope this helps,

dkp



Dennis Kim-Prieto, J.D., M.S., M.F.A.
Reference Librarian
Rutgers School of Law -- Newark
123 Washington Street
Newark, NJ 07102

(v)++973.353.3037
(f)++973.353.1574

>>> RUGGESM AT pwcs.edu 04/26/06 01:27PM >>>
Through creating http://www.esolpc.com/teacherhost (using ccHost) a site
where teachers can share educational materials online with one another and
utilize Creative Commons licensing http://creativecommons.org as a means of
protecting/sharing their creative works...I have run across an issue I hadn't
fully considered regarding schools claiming ownership over educational
materials...

Should Public School Systems be able to claim copyright ownership over lesson
plans or other educational materials created by teachers (why or why not)?

Are there examples of schools/school systems (public or private) which do
this contractually (in contractual language)?

It is widely known that teachers share educational materials at conferences
nationwide...some of it in digital format...What would a school system hope
to accomplish by prohibiting this? or prohibiting the creative
teacher/teachers from distibution of such materials online? or dividing this
and saying that paper copies are ok (keep killing trees?)...but no electronic
copies??

I am having a hard time understanding the mentality or desire of a Public
School system to own the copyright over a teacher's creative educational
materials.

Could a school district sell such materials if it so desired?

If so what incentive is their for a teacher to be creative and 'invent' new
lesson plans at all?

Any discussion on this is greatly appreciated...










  • Re: [cc-education] Teacherhost using ccHost and Schoo ldistrictsowning copyright over educational ma, Dennis Kim-Prieto, 04/26/2006

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