Mr. Principal has led the Acorn Elementary School in Nutmeg for the last thirty years, and he is truly “old-school.” His computer befuddles him, and his secretary has to send out his email messages for him. School website? Forget about it. Mr. Principal was thrilled, therefore, when Ned Nerd was assigned this year to work with him as an assistant principal. Ned lives and breathes technology, and he told Mr. Principal that he had big plans to bring Acorn Elementary into the twenty-first century.
The website was his first project. Ned was indefatigable with his digital camera, and teachers, parents and students were all subjects for his various photos. Mr. Principal was quite impressed when his secretary turned on his computer, and clicked on www.MightyAcorn.org, the new website for the school. He was a little concerned about various pictures that included students, who were even named in captions. Ned just blew him off, however, by explaining that “everyone does it.”
Ned was just warming up. He offered his services to teachers, and soon he was regularly creating PDF files of excerpts from textbooks that teachers could email to students so that they would not have to carry their textbooks home. That worked so well that Ned and a kindred spirit, Tom Techie, came up with a better idea. They digitized the entire textbook that Tom was using in social studies. Now, students in Tom’s class simply print the PDF files that Tom sends them, and Tom is able to keep the textbooks themselves in a locked closet. No more lost textbooks in Tom’s class!
Ned’s next stop was the library. As we all know, some books are used so often that they wear out, and Ned was ready to put an end to that. He showed up at the media center one day with his industrial-strength scanner, and he explained to the library-media specialist, Ms. Musty, how he was going to make dog-eared pages a thing of the past. His plan was to scan the twenty books most frequently used so that students could use them electronically. Indeed, the digital version of each of these books, Ned explained, would be posted on the school’s website for easy student access.
Ms. Musty surprised Ned by expressing concern that such scans might violate copyright law. Ned thought about that for a nanosecond, and then announced his “fix.” He would put the books on a password-protected page on the website, keyed to student ID number. Through password protection, Ned explained to Ms. Musty, only students who could otherwise use the books will be able to access this digital “treasure trove.”
The teachers at Acorn Elementary School were supportive of Ned’s efforts until he crossed the line. The megabytes hit the fan when Ned directed teachers to submit their lesson plans to him electronically at the beginning of each week. Ned explained that he would post the lesson plans on another password-protected page on the website so that teachers could “learn and grow” by reviewing each other’s work.
That was enough for Mal Content, a fifth grader teacher and resident Luddite. He flatly refused to submit his lesson plans, and he claimed that Ned was violating his copyright to his lesson plans. Now, Mr. Principal was really confused.
Does Ned have the right to post teacher lesson plans on the school website?
* * *
Ned needs to take a big step back to understand the Copyright Act and the other rules that affect our use of technology, and the Nutmeg Board of Education may have to adopt a policy to help Ned and others in that regard. Interestingly, however, Ned’s worst idea, posting lesson plans, would not generally raise copyright issues.
Ned has been riding roughshod over the rights of the authors or others who hold the copyrights to the works that he has been duplicating and disseminating through technical means. When one purchases a copyrighted work, one does not thereby acquire the right to use the work as one sees fit. Rather, one simply acquires the right to use the work in the intended manner. To be sure, the Copyright Act does provide that performance or display of a copyrighted work in “face-to-face teaching activities . . . in a classroom or similar place devoted to instruction” does not infringe upon copyright. Similarly, “fair use” of copyrighted work does not infringe copyright. The concept of “fair use” is a little complicated, but can be summarized as the right of teachers and others to distribute or use a limited excerpt from a copyrighted work for educational or non-commercial use, when that use does not have a significant impact on the market for the work.
Ned’s actions did not fall under either of these safe harbors. When a school district buys textbooks for the students and teachers, they purchase the right to use those textbooks for instructional purposes. School districts, however, do not have the right to copy those texts whole, whether copying machine or through electronic means. Clearly, Ned’s copying was not “fair use,” because the entire textbook was copied, and such copying would in fact affect the market for the textbook, in that replacement texts were thus made unnecessary. To avoid liability for such violations, school districts must have acceptable use policies that prohibit copyright violations. Training as to exactly what that means is also advisable.
By publishing student names and likenesses on the school website, Ned may have created another problem – a violation of FERPA, the federal law requiring confidentiality of personally-identifiable student information. Here, there is a simple policy fix. FERPA permits the disclosure of “directory information,” i.e. information that would not generally be considered harmful or an invasion of privacy if disclosed. However, to take advantage of the “directory information” provision in FERPA, boards of education must identify “directory information” by policy or otherwise, and must notify parents of its definition of directory information and of their right to object to its disclosure. By defining “directory information” to include student images by printed or electronic means, school boards can establish their right to publish student photographs on school websites without first obtaining written parent permission (unless of course the parent objects when notified of the definition of “directory information”).
Finally, Ned’s publication of teacher lesson plans does not violate copyright law because teachers and others do not have a copyright interest in documents that they would normally create in order to do their jobs. However, Ned’s plan is a bad idea for other reasons. Lesson plans are the private “tools of the trade” for teachers, and collecting and publishing them would be offensive to the teachers. Moreover, such collection and publication would make lesson plans “public documents,” thus subjecting them to the disclosure and record retention requirements of state law.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.