development of an education license or license option for Creative Commons

["Dennis Kim-Prieto" <dprieto AT kinoy.rutgers.edu>]

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...