February 3, 2013

"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."
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.
God forbid that teachers might become entrepreneurial about their creations and amass personal wealth. It's important to keep them inside the system, teaching their wards that the government needs to possess everything in order to ensure that no one gets more than her share.

68 comments:

kentuckyliz said...

My employer (a college system) says that anything I create while in their employ belongs to them. So I'm a whore and creative commons license it and distribute it freely. If I can't own and profit from it, I do less of it, and don't let them profit either.

cryptical said...

There was a story a couple months back about an online exchange that allowed teachers to sell lesson plans. Apparently some teachers were making some pretty nice side income doing it.

Ann Althouse said...

@cryptical Yes. Exactly. They don't want any teacher to bust out like that.

BDNYC said...

UW will soon own this blog and all its proceeds. Or does it already?

Insufficiently Sensitive said...

Board Chair Verjeana M. Jacobs has a swelled head, a Commissar's mind, and dreams of power and glory which should be smartly banished from the school system, at once.

Seems like anything developed while in the employ of a public school system should belong in the public domain, since they're being paid to spread knowlege far and wide for public benefit.

If the teachers want to resign and go starve in a garret while dreaming up proprietary apps, that's fine. They can even form a union, but will have to pay the dues from their vast earnings from selling original apps, and not from taxpayer dollars. Lord knows who they'd strike against - some guy on a street corner soapbox, who gives her wisdom away for free?

bpm4532 said...

what you do in your own time and your own dime are your property. Your employer has a right to determine how it's assets are used. If you need a computer for your venture, you better buy your own.

EDH said...

A proposal by the Prince George’s County Board of Education to copyright work created by staff and students for school could mean...

I can see the teachers already falling within the work for hire doctrine.

But the kids, they aren't even old enough to contract away their rights.

Somewhat surprised that Althouse, as a lawyer, focused on the teachers. But as a professor and blogger, maybe I shouldn't be.

ByondPolitics said...

So is it customary for people to get paid to do a job and then go out and sell that exact product independently? Sounds pretty outrageous to me. As a taxpayer, I'm opposed to paying people to do work only to have the school board let them double-dip. But hey, I'm in favor of letting taxpayers keep more of their money rather than wasting it on moochers who think they can get paid twice for the same work. Your mileage may vary.

Ann Althouse said...

"UW will soon own this blog and all its proceeds. Or does it already?"

They'd have to rake back all the royalties the professors have ever made on the books they've published... including all the creative writing teachers like Lorrie Moore.

Remember that Isthmus hit piece on me that noted that I get to keep my advertising income?

But the University does keep the patents developed in the science programs, and much of the money that we have is based on rat poison!

Ann Althouse said...

"So is it customary for people to get paid to do a job and then go out and sell that exact product independently?"

Prince Edward is voting to change the existing law and the WaPo article said it would be the first school district to do that, so obviously it is not the custom.

The product the teachers are paid to produce is the teaching of their class, not the creation of teaching apps. If on the side, they create an app taking advantage of their knowledge, that isn't their job!

"Sounds pretty outrageous to me. As a taxpayer, I'm opposed to paying people to do work only to have the school board let them double-dip."

How is it double-dipping? Would you say that about any moonlighting, like if the teacher wrote a novel in her spare time about her experiences on the job or a memoir? What if the teacher worked as a waitress at night?

BDNYC said...

A family friend invented a very useful and profitable product while employed by another university called UW. This was back when the royalties split was much less favorable to the inventor. Most universities have since learned that incentivizing their employees with more favorable royalties is a better policy, but he makes sure to remind us about the bad old days.

Pogo said...

It's simple.

Democrats want to own you. You're their slave, milch cows until you get old, then discarded.

It's no joke. They mean to own your every waking moment, from what you eat to your light bulbs to your car and even your free time.

It's all really theirs, you see, and you exist and have some rights only at their sufferance.

kentuckyliz said...

Claiming ownership of the children's work/art/product--

doesn't that violate both child labor laws and the 13th amendment which prohibits involuntary servitude?

Erika said...

Hunh. I buy downloads from time to time, worksheets and stuff, usually around $2, that other teachers have created. Teacherspayteachers.com. It never occurred to me that maybe their work belongs to their employer.
My employer has never suggested that I share, file, or do anything in particular that I create for the classroom. I might stop creating such things, if they ever did, because they do not provide me with paid time to do so, and I do it at home on my own time.

jr565 said...

kentucky liz wrote:
My employer (a college system) says that anything I create while in their employ belongs to them. So I'm a whore and creative commons license it and distribute it freely. If I can't own and profit from it, I do less of it, and don't let them profit either.


Er, if you are going to profit from something and those are the terms of your employ, why not quit your job and profit from your work?

jr565 said...

The product the teachers are paid to produce is the teaching of their class, not the creation of teaching apps. If on the side, they create an app taking advantage of their knowledge, that isn't their job!

IF they are creating an app, and that's their job, then why still expect a teadhers salary? Quit the teaching job, then put out the app created.

Synova said...

It's like someone wanted to find the best way to make sure teachers never develop their own class materials.

Synova said...

"IF they are creating an app, and that's their job, then why still expect a teadhers salary? Quit the teaching job, then put out the app created."

Absolutely. They should be getting a software developers salary if that's what their job is.

kentuckyliz said...

You don't get it. Anything I produce, in the duration of my employ for them. They own what I do outside the job, too. They wrote it broadly. It's a disincentive.

Some faculty friends who are artists, writers, inventors, etc. only do that work in the uncontracted summer and make sure they don't teach in summer session. That way they can own their product. Two months of freedom per year.

I am a twelve month employee.

Bruce Hayden said...

Ann - not Prince Edward, but Prince George. PG county is the south DC suburban county. Lived there for some 5-6 years in the latter 1970s and into the 1980s, working initially at the Census Bureau in Suitland, MD, and later as a contractor to NOAA there. And, the absurdity is that the DC area has more IP attorneys per capita, by far, than anywhere else in the country (though suburban VA is most likely worse), and so they should have known better.

Copyright is owned by the author unless assigned by a writing to another. BUT, the employer of an employee who creates original expression in the scope of his/her employment is considered the legal author of that original expression under the Work for Hire doctrine. That means that, absent a written and signed agreement to the contrary, the school board already owns the copyright to the lesson plans and the like created by its teachers, since such are obviously created within the scope of their employment.

But, the students are not employees, and so their work is not covered by the Work for Hire doctrine. They own the copyright to their own work, with their parents presumably acting as guardians. The kids couldn't sign away their rights, even if they wanted to (or, the contract would be voidable by them at their majority), and any contract would seem to be one of cohesion, or, worse, under duress, given mandatory school attendance requirements.

This is not new. Colleges and universities have been trying to do this for some time. Faculty and maybe grad students with stipends, yes, but no to most undergrads and those paying to attend class.

jr565 said...

Also, to tie it back to the Aaron Swartz issue, lets say this does become law and people create content that belongs to the school.

Aaron Swartz comes along and says that should be freely available and distributed to everyone

If we are going to get mad at the school board for appropriating peoples work,at least they are honoring a copyright system (which we may disagree with). But Swartz and people like him would do things with that work absent any copyright restrictions without the say so of the school or the person who's work it is.
The last thing I want to hear is people who are down with the whole free interent thing and anti copyright getting pissed off at the school because they are taking peoples work and not letting them do what they want with their content as the owners of said content.

Lets assume it's an app or a work that is popular enough that people will actually buy it. Somehow the school is bad for telling the authors up front that if they create the work while at school it belongs to the school.
But if it winds up on megaupload and a million people download it for free without getting any approval from the author at all, that's something to celebrate.

Which, of the two is worse?
If I'm a teacher and I work for this school and nknow that if I create an app that I want to maybe sell one day that it belongs to the school, I will not tell the school about it and will quit and then release my app. In other words I know the licensing agreement presented by the school and I choose not to abide by the terms. But at least with the school saying "this is the policy" I can disagree with the policy.

If information is free, then the Aaron Swarts/megauploads of the world wouldnt' even have to negotiate anything with me but simply take my work and get rich off of my work.

As such, I'd choose the school over the free interent crowd anyday. Because as bad as the terms are, at least there are terms that honor the idea that content belongs to the content creator (they school would just disagree that I was the one who controlled the work).

Kirk Parker said...

For the teachers, this is completely unexceptional: work-for-hire is the norm for actual employees in just about any creative industry (and I would include engineering and software development in that group for these purposes.) If you don't like it, go elsewhere.

Given that this doesn't seem to be contractually in place anywhere, that's a different aspect. If the teachers' unions were any good, they would make this a point of negotiations. Employer now wants us to agree to X? Give us Y in exchange. Will the unions step up...?

But for students, that's a completelty different matter. They are not employees, they are not being compensated for their "work", and so of course it should belong to them (assume it really represents their individual work, not something done, say, 80% by the teacher and 20% by them.)


K-Liz, if you are operating under an actual work-for-hire agreement, what you're doing is just as invalid as if you were selling it.

Here again, though, there are nuances: if you're working for a public university, then I agree with those who say it should belong to the owners i.e. go straight into the public domain.

Kirk Parker said...

Bruce,

Work-for-hire is assumed any time there is an employer-employee relationship?

Ann Althouse said...

"Ann - not Prince Edward, but Prince George..."

Oh, sorry. They've got a lot of Princes going on in those Virginia counties. I think "Prince Edward" because it comes up in conlaw class -- in this SCt case.

Bruce Hayden said...

I should add to my previous post that for college faculty, the situation is often less clear cut because outside publication is so important to many of them. Written policies in the past have often given them more rights in their own work than most employees get, but what happens when those policies change? And, the policies really still need a written and signed (in this case, by an officer of the college/university) employment agreement with the faculty referencing the policies. K-12 teachers typically don't have this expectation of outside publication, and so it is much less likely that they would have the equivalent of an assignment to them of the works they create within the scope off their employment.

Kylos said...

As others have pointed out, it's not that shocking from a work for hire perspective. If you want to profit from class materials you develop, do it on your own time with your own tools. Sure the school is probably being a bit stingy, but it doesn't seem unreasonable.

As to materials developed by students, that seems like another matter entirely

Ann Althouse said...

"Copyright is owned by the author unless assigned by a writing to another. BUT, the employer of an employee who creates original expression in the scope of his/her employment is considered the legal author of that original expression under the Work for Hire doctrine. That means that, absent a written and signed agreement to the contrary, the school board already owns the copyright to the lesson plans and the like created by its teachers, since such are obviously created within the scope of their employment."

That doesn't address my point about creating an app. What is the scope of the employment?

Bruce Hayden said...

If information is free, then the Aaron Swarts/megauploads of the world wouldnt' even have to negotiate anything with me but simply take my work and get rich off of my work.

Technically/legally, information IS free under copyright law - just not the original expression of that information. Or, at least the fact aspect of information. So, one of the things that you sometimes need to do with copyrighting infringement is called "filtration" - removing the facts from the work to identify the original expression. Merely copying the facts is not sufficient for infringement - copying of the original expression is what is actionable.

edutcher said...

So I need to see my lawyer about that little Javascript routine I wrote getting my CS degree?

(customized buttons for Internet sites)

jr565 said...

Synova wrote:
It's like someone wanted to find the best way to make sure teachers never develop their own class materials.

Lets say you are teaching language and develop Rosetta Stone. What is the context in which you are developing that? Is it on the schools computers, are you telling them you are coming up with this great new way of teachin language that you want to try out in the class? Well, if that's the case then the school should have access to it. You are using their classroom and equipment and the time they are paying you to do school related work to basically test out your product that you want to ultimately get rich from.

But if you create Rosetta Stone and realize that you have a goldmine on your hands, I would think you dont tell the school what you're doing as you create it, then quit working for the school, wait about 6 months then put out Rosetta Stone as a product not linked in anyway to the school.

jr565 said...

Bruce Hayden wrote:
copying of the original expression is what is actionable.

WHen you're talking about an audio or video file,what is the original expression?

jr565 said...

Bruce Hayden wrote:
So, one of the things that you sometimes need to do with copyrighting infringement is called "filtration" - removing the facts from the work to identify the original expression. Merely copying the facts is not sufficient for infringement - copying of the original expression is what is actionable.

If you copy a music file or a text file or a video file and it has all the words, sounds or visuals of the original work, I don't see why that is not the orignal expression.
YOu probalby can't stop a guy from muttering "To Be Or Not to Be". but if you are copying Random House's copy of Hamlet and putting htat on to a website in a format that would be identical in almost all ways to the copy that Random House put out, then i don't see why that wouldn't be violating copyright.
Because everything can be copied in a digital age.initial

cubanbob said...

I'm not so sure the work-for-hire is that broad. Teachers are not generally hired to create apps and other similar things therefore the employer would have a higher burden to prove ownership. So unless the teacher was commissioned to do the work the school board has no IP right. At best the board might be entitled to be reimbursed any incidental expense it incurred durring the creation. If an art teacher created a masterpiece using the paint,brush and canvas provided by the school the school isn't considered the author of the work unless the painter was commisioned to do the work.

Synova said...

Usually IP rules where your employer owns everything even what you do in your off time (because if you're salaried, do you have off time?) limit it to whatever is the same type of product as your employer produces.

But if you're not working as a *developer* of educational programs and applications or for a publisher of workbooks and study sheets... how does that apply to school teachers? If you write news copy at work and novels in the evenings, it's all writing but obviously not the same sort. If your day job is teaching a classroom of children and at home you write story books and math sheets, it's obviously not the same. If you're writing the math sheets and story books you use for your class during your paid class-prep time then it's clearly part of your job you've already been paid for.

Yes, I know that employers wrote and do write ridiculous contracts that DO say that anything you do ever belongs to them but I doubt they could uphold it in court.

The Harlequin website had a "we own your life and your first born" warning for anyone posting on the site, which was completely bogus legally, and I figure it was to keep *them* from getting sued for making money off the forums. Yes, if I went by what they said I no longer "owned" the little story I put up there in pieces, but while they could have stuck it in an anthology or published it elsewhere, they really wouldn't have gotten anywhere if they tried to stop me from doing the same with a revised not-first-draft version or the story expanded into a novel.

Just because someone *tries* to steal your stuff, and says ahead of time that they *can*, doesn't mean they're right.

Bruce Hayden said...

Ann - you are right, I didn't. But, I don't think that we have enough information to make this determination (which might make it a nice LS IP test question). I would suggest that it is very fact specific, depending on what policies/contracts the district has in regard to the teachers and what exactly was created and its relationship to the duties of the teachers.

The mistake that I think some of the teacher opponents seem to be making here is the idea that they have 9-5 jobs, and anything done out of school is done on their own time. They of course know that isn't true - having taken home lesson plans, grading, etc. innumerable times during their tenure as teachers. This is what is called being on salary.

When it comes to apps, I don't think that the analysis changes all that much. Was it designed primarily for their students? Which would seem to say that a math app by an English teacher would most likely not be w/i the scope of employment, but maybe one by a math teacher might be, esp. if debugged with her current classes of students.

Places where this gets a little hinky though is, for example an app that a teacher creates during their summer vacation. And, you also have to factor in district policies, esp. as they are incorporated by written contracts. And, probably most importantly, you still will need to look to the state law principles of scope of employment. A lot of case law out there (for example - this is related to the law that that we learned in 1L torts about "frolics").

I do think that the district might be able to increase their leverage here when it comes to stuff created on their equipment that they have loaned to their staff by maybe stating first that the iPads, etc. should only be used for work related stuff, and that the staff using the equipment for a project acknowledge that the project, etc. is work related, and, thus, w/i the scope of their employment. (Instead of merely asserting that anything created using their equipment was theirs). BTW - this sort of issue has been around for awhile in the software realm, and the employers tend to win. They also tend to win on the flip side of patents, which belong to the employee unless they contract away their rights (except in NV).

So, in the end, I am not much help when it comes to your questions.

jr565 said...

Filtration:
"The second step is to remove from consideration aspects of the program which are not legally protectable by copyright. The analysis is done at each level of abstraction identified in the previous step. The court identifies three factors to consider during this step: elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain.[5][9]

The court explains that elements dictated by efficiency are removed from consideration based on the merger doctrine which states that a form of expression that is incidental to the idea can not be protected by copyright. In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright.


How is this relevant to a copmlete work that is being hosted on a website that has all the elements of the completed work and is recognizable as that completed work.When discussing a completed work there are very few elements that remove from consideration aspects of the program which are not legally protectable by copyright". It's not like the case against Altai where the discussion is who wrote what aspect of a program. WHen Aaron Swart or megaupload get their hands on a file, we can all recognize who the author is,what hte content is etc. It may be in a different format (ie aiff or wav or mp3) but we can all tell its' the same exact song. If you were going to distribute said work people would know what that work was because it would be readliy identifiable. Even if you changed the name of a music file to gobbledy gook as sooon as people listened to the file it would be same sounds that are in the file you would normally have to pay money to get a copy of from any reputable source. hence, no filtration is needed.

Proving copyright infringement requires proving both ownership of the copyright and that copying took place.
In the case of a work published or put out by a studio we know there is ownership and copyright in place, because it was put out by a company/owner. And we know that copying takes place in the case of say a megaupload because copying is taking place. But also, work is being distributed in a way that is not allowed by the owners of said copyright.

Thus all the filtration and abstraction arguments become irrelevant since we know with certainty that such things are occuring.

jr565 said...

For example, lest say I go online and look up "Windows 8 for dummies bittorrent". Or lets say Aaron Swartz thinks that all copies of books that are on a website should be freely distributed. Is there any question about what "Windows 8 for dummies" means? Is there any question as to who the author is, or who the publisher is? It says right on the book cover. Even if you removed the book cover from the file we'd still know. Because it's a completed work that has the same words as all other copies of Windows 8 for dummies, not to mention all the other copies of windows 8 for dummies.
If you started changing every third word, and replacing every third graphic with your own, and instead called your book "Windows 8 for simpletons" then filtration might be used to determine how close your book is to Windows 8 for dummies.

John Cunningham said...

Who can dispute the fact that in a Democratic People's Republic, the Party owns its subjects, and that any work they do belongs to the Party? just as in a slave regime, anything the slave produces is the property of the master.
Remember how we used to be free?

Bruce Hayden said...

If you copy a music file or a text file or a video file and it has all the words, sounds or visuals of the original work, I don't see why that is not the original expression.
You probably can't stop a guy from muttering "To Be Or Not to Be". but if you are copying Random House's copy of Hamlet and putting that on to a website in a format that would be identical in almost all ways to the copy that Random House put out, then i don't see why that wouldn't be violating copyright.
Because everything can be copied in a digital age.initial


Going to take a bit to break this down. Copying something digitally is reproduction, which is one of the exclusive rights of a copyright holder. Changing it is the creation of a derivative work, which is another of their exclusive rights. Public distribution is another exclusive right, and in the digital age, requires even more reproduction.

"To be or not to be", etc. probably is original expression (though I hedge here because short slogans are typically not). However, we have two other things going on here. First, the copyright, if any, is long expired, and secondly, it would likely be Fair Use.

Now, we would need to go look at Random House's version of Hamlet and see where it came from. It might or might not be under copyright, and might or might not be licensed for general use. If it is the original, then, again, the work is out of copyright. If they cleaned it up in a systematic, standard, way, then they may have not added sufficient original expression to the play. But, if they did much more than that, then probably is sufficient original expression (the primary case there is Feist, which revolved around sorting phone book listings). Then, you get to the question of what was done with the work. If it was merely read aloud, there was no fixation in a tangible medium, and therefore no reproduction. But, a school play would probably be a public performance, another of the exclusive rights, or, likely, the play was somehow recorded, which means fixation, and therefore the possibility of reproduction.

And, yes, putting it up on a web site is public distribution, reproduction, and, now contributory infringement.

jr565 said...

But if Windows 8 for Dummies is published by Wiley & Sons and Wiley & Sons allows you to buy Windows 8 for Dummies at a store or from iBooks and/or AMazon then how is Windows 8 for dummies FREE?
It's only free if Wiley & Sons decides to make it free.
HOw much filtration is required to determine that Windows 8 for dummies belongs to Wiley & Sons?
Could I write my own For Dummies books and not go through Wiley & SOns to publish them?

Are the Aaron Swartz's of the world entiteld to all of their books because info is free on the internet? Only free information is free on the internet.

jr565 said...

Bruce Hayden wrote:
Now, we would need to go look at Random House's version of Hamlet and see where it came from. It might or might not be under copyright, and might or might not be licensed for general use. If it is the original, then, again, the work is out of copyright. If they cleaned it up in a systematic, standard, way, then they may have not added sufficient original expression to the play. But, if they did much more than that, then probably is sufficient original expression (the primary case there is Feist, which revolved around sorting phone book listings). Then, you get to the question of what was done with the work. If it was merely read aloud, there was no fixation in a tangible medium, and therefore no reproduction. But, a school play would probably be a public performance, another of the exclusive rights, or, likely, the play was somehow recorded, which means fixation, and therefore the possibility of reproduction.

I dont actually think we are disagreeing much. Except with your assertion that INFO is free. Only if it abides by the terms of copyright or law. Using To Be or not to be may have been a bad example consering Shakespeare is generally considered in general use. But Random House's copy of the book published by Random House may not be (unless they are giving it away for free that is or the copyright ran out on their copy of the work and they are no longer publishing). So if Aaron Swartz distributed Random House's copy of Hamlet (in PDF form) that was on a server somewhere, he would not be entitled to do so.

Bruce Hayden said...

Thus all the filtration and abstraction arguments become irrelevant since we know with certainty that such things are occuring.

I think that you are looking at this maybe backwards. Filtration may be used when it is not very clear that the secondary work was derived from the original work. But, when we have an exact copy (or phonorecord), or close to it, of a work being reproduced, then filtration is not applicable. It is really only when you are talking about whether or not one work is a derivative work of another that it is applicable.

Originally, one place where filtration came in was with, say plays. The example above was of a, presumably, modernized Hamlet. That is clearly a derivative work. But how about West Side Story, derived at some level of abstraction from Romeo and Juliet? Where do you draw the line between derived and not derived?

Filtration though really came into its own with software, in situations when there isn't byte by byte copying. If you take the source code from one program and changed all the variable names, would it be a derivative work? (yes) So, in proving software copyright infringement, when you don't have byte by byte copying, you typically first remove (i.e. "filter") unprotectable and unprotected elements from the comparison, and then find some level of abstraction where the two works are substantially similar (assuming that the alleged infringer can be shown to have had access to the first work). One result is that look-and-feel has been given somewhat of a legal foundation in most of the Circuits (9th Circuit going its own way here).

Sorry to ramble - but since there is no question whether or not the second work is derived or copied from the first, levels of abstraction and filtration are irrelevant to a proving a case of infringement.

Michelle Dulak Thomson said...

Man, you guys are sure helping me with my homework.

(I got into that free Harvard Law copyright course somehow, and it started Monday. As IANAL and know next to nothing about copyright law except in respect to printed classical music, I'm scared out of my wits, but actually the first discussion section was great fun. Possibly partly because it was also massive Technology Fail: There was unbelievable audio feedback whenever the video feed was up, and we ended up doing most of the class in text. Also, running an hour and a half over the 80-minute official class time :-))

Anyway, the Prince George County thing. I can't see how a school board can claim copyright in a child's work. It's not work-for-hire, as the students aren't paid and couldn't contract anyway.

I gather that the teachers, though, might not have rights in anything they create for class, even if it's done on their own time and without using any school resources. (Not an academic question around here; my husband has been designing and teaching a music theory course basically from scratch this school year.)

Bruce Hayden said...

I dont actually think we are disagreeing much. Except with your assertion that INFO is free. Only if it abides by the terms of copyright or law. Using To Be or not to be may have been a bad example consering Shakespeare is generally considered in general use. But Random House's copy of the book published by Random House may not be (unless they are giving it away for free that is or the copyright ran out on their copy of the work and they are no longer publishing). So if Aaron Swartz distributed Random House's copy of Hamlet (in PDF form) that was on a server somewhere, he would not be entitled to do so.

Back to my implied question. Is there a copyright in Random House's version of Hamlet? We don't know right now what someone did to create this version of the work, when it was done, whether they conformed to the proper formalities (if done more than 20-30 years ago), and whether Random House actually owns the copyright, or has sufficient license rights to sue.

We do know a couple of things though. First, the original work, if created today, would be protected by copyright, but since it was created some 400 years ago, any copyright in the original is long expired. I think that we can also say that many versions today of Shakespeare's works are derivative works with sufficient additional original expression to qualify for their own copyright. This may be in the form of editing, or maybe modernization of some of the language.

I think that maybe the issue here is the use of the word "information". To me, in the context of copyright law, it means facts and original expression. Original expression is protected by copyright, but facts are not. And, ties go to not being protected (sometimes facts and expression are so closely tied that they cannot be separated, and in that case, are considered facts, and not expression). Part of the reason for the entire discussion of filtration and levels of abstraction comes from the fact that facts are not protected by copyright, and so have to be removed before looking for copying of original expression, which is protected.

There are limits on copying, distributing, etc. facts, but not in copyright law. It only protects original expression. Nothing more. Some of the limits on distributing facts include Trade Secret laws, contracts, and sometimes even patent law.

Bruce Hayden said...

HOw much filtration is required to determine that Windows 8 for dummies belongs to Wiley & Sons?
Could I write my own For Dummies books and not go through Wiley & SOns to publish them?


Answer to the first question is that no filtration is required. First, because ownership of a copyright is a separate question from whether reproduction occurred, and secondly, since we are talking verbatim (or close) copying, you never get to filtration, which is really only relevant in determining whether or not something is a derivative work, and, really, only then, when the derivation isn't fairly obvious. (In other words, during litigation, P claims that D's work is derived from P's, and D denies that during litigation, and has some non-frivolous reasons to support that denial of derivation).

Second question - yes, you could write your own Dummies book, but would likely have trademark problems if you used the "Dummies" title. The mere concept of such a book is considered a high enough level of abstraction that it is not protected by copyright.

But, if you took the ideas from the original book, it would depend on how low the level of copying was. But, keep in mind that how things are organized, broken into chapters, etc. is considered original expression, and, therefore potentially subject to copyright protection. So, if you ever do want to do this, it can be done, but you need to work closely with an IP attorney to make sure that it is legal.

elkh1 said...

It's important to keep them inside the system, teaching their wards that the government needs to possess everything in order to ensure that no one gets more than her share.

They can suppress anything that they don't like.

Bruce Hayden said...

Anyway, the Prince George County thing. I can't see how a school board can claim copyright in a child's work. It's not work-for-hire, as the students aren't paid and couldn't contract anyway.

If you are taking a copyright course, and, esp. if there is any grading, keep in mind that "copyright" is not a verb when describing any work created over the last 20-30 years in the U.S., and much longer in Europe and much of the rest of the world.

Prior to the mid 1970s, copyright in this country only existed when certain formalities were observed, such as fixation of the copyright notice and ultimately registration and deposit. In the late 1980s, the U.S. joined the Berne Convention treaty, and, as a result, since then, copyright is automatic upon fixation of original expression in a tangible medium (meaning that once you write it down, or key it into your computer, what you wrote is protected by copyright). The formalities still exist, but now are limited to providing some additional benefits to U.S. citizens and legal residents (foreigners from other Berne signatories get these advantages w/o our formalities). And, the period between the old copyright law and Berne compliant copyright law of about a decade was transitional and is termed the "Decennial" period due to when it was enacted.

You routinely see this mis-usage of the word "copyright" as a verb, including in the first paragraph of the NYT article. Your problem is that since you are taking a class on copyright, you should make sure that you aren't caught misusing it, esp. in class and on tests.

Hagar said...

Teachers are a bit different in that they are expected to do lesson plans, grading papers, etc. at home.
However, I would think that if they develop something that there is no expectation that they should even know what it is, then that would belong to them.

Freeman Hunt said...

So the teachers are supposed to be serfs now? That'll help recruit the top teaching talent.

Freeman Hunt said...

And the students? They're required to be there, and then the school owns their work. What are they? Slaves?

Hagar said...

"... while using apps on iPads that are school property, ..."

That is a significant specification, no?

Freeman Hunt said...

I don't think the use of the iPad is significant. I think, in terms of capital, that should be considered trivial. (Whether or not the law regards it as such, I do not know.) Say a novelist with a day job gets an idea at the office and scribbles it down on a sticky note. Should the company own the idea because the company owns the pen and the sticky note? Only in Crazy Land. (Again, I don't know if we live in Crazy Land. Maybe we do.)

Kirk Parker said...

Freeman,

"I don't know if we live in Crazy Land"

Of course you know.

MadisonMan said...

And the students? They're required to be there, and then the school owns their work. What are they? Slaves?

Bears repeating. Spot on.

Marshal said...

So if you work for government everything you do belongs to them. Consider what happens if Robert Cook's ilk (and Democrats eventually) get there way and there are no more businesses seperate from government. Everything you produce belongs to them.

A glorious future. No doubt our great-great grandchildren will be highly motivated to say the least.

cubanbob said...

I wouldn't push the example of the teacher at home grading too far since that could open the employer to an overtime labor issue. As for copyright ownership to prove ownership an application has to be filed and properly documented less it is deemed invalid. Even if unpublished the claiment has to show evidence of creation or assignment of rights.

Michelle Dulak Thomson said...

Bruce Hayden,

If you are taking a copyright course, and, esp. if there is any grading, keep in mind that "copyright" is not a verb when describing any work created over the last 20-30 years in the U.S., and much longer in Europe and much of the rest of the world.

I did not use "copyright" as a verb in the sentence you quoted; I wrote

I can't see how a school board can claim copyright in a child's work[.]

If that word isn't functioning as a noun there, I'll gladly eat the dictionary of your choice. I'll own my mistakes, but I balk at owning others'.

Bob K said...

The school having copyright of the students work is BS.

Music teacher: Jay the school is short on funds so your assignment this semester is to compose a symphony.

Jay: Who owns the copyright?

Music teacher: Why the school of course.

Jay: I won't do it unless I own the copyright.

Music teacher: You will fail the class if you don't do your assignment.

http://www.cbsnews.com/8301-18560_162-657713.html

F. A. Alsbach said...

Art schools have been doing this for generations. Usually BFA candidates are 'asked' to give a work, chosen by the faculty, from their BFA show to the school. There are some schools who reserve the 'right' to 'ask' for works right off the easel. The unspoken rule is that if you say no... you graduate with a BA, not a BFA and usually that means no grad school.

Michelle Dulak Thomson said...

cubanbob,

I wouldn't push the example of the teacher at home grading too far since that could open the employer to an overtime labor issue.

That applies to hourly employees, not salaried ones. You don't get overtime pay if you are a public school teacher.

Michelle Dulak Thomson said...

Bruce Hayden,

Sorry to double-post on the subject, but I'm irritated.

In the phrase "claim copyright in," which word is being used as a verb?

If the verb is not "copyright," what was your very gentle, very condescending lecture to me all about?

Bruce Hayden said...

If the verb is not "copyright," what was your very gentle, very condescending lecture to me all about?

Careless on my part? Sorry. See it so often, and saw it on the first line of the NYT article, that I made a mistake. Sorry.

Michelle Dulak Thomson said...

Bruce Hayden,

Careless on my part? Sorry. See it so often, and saw it on the first line of the NYT article, that I made a mistake. Sorry.

Enh, people making mistakes I get. People gently but publicly lecturing other people about how if they're taking a course in law, they mustn't ever, ever make particular mistakes that they haven't actually made is infuriating.

What ever gave you the idea that I was likely to be as careless as the NYT? I mean, I have written for them a few times, but I did proofread my own stuff.

Robin said...

Creation of a lesson plan would be within the scope of employment of a teacher with little doubt.

However, a student's work cannot be copyrighted by the school district. That would be outright fraud by the school district if it attempted by notice or even worse registration to so claim. US Copyright statute and caselaw is very clear on this.

Michelle Dulak Thomson said...

Bruce Hayden,

Look, Robin just used "copyrighted" as a verb! Do tell him/her not to do that if s/he ever wants to get through a course in copyright. S/he might not realize.

Michelle Dulak Thomson said...

Robin,

Creation of a lesson plan would be within the scope of employment of a teacher with little doubt.

Of course it would. But would copyright in an entire suite of course materials, created by a teacher outside working hours and without using school resources, inhere in the school board? And what happens if the teacher is using the materials (that s/he developed entirely on his/her own time) at more than one school? At a private school as well as a public school?

Susanna King said...

Hush! You can't get all radical and start talking sense about copyright! That displeases the corporate overlords.

Freeman Hunt said...

Teaching is a service profession. Teachers are paid to teach children. They are not being paid to create original materials, though some of them may do that as a means to the end of teaching students. I don't see why the school should own any of their work.