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Preventing the Abuse of Copyright to Ensure Public Access to Educational Materials

 

Guiding Principle: Parents have a right to know what their children are taught in school. Public records laws should therefore ensure access to public school curricular materials.  At the same time, copyright protections are important. They reward authors, artists, and innovators by helping them profit from their creations and protect them from people who would enrich themselves by using their work without their permission. But parents don’t ask for school materials because they want to profit off them—they simply want to know what materials are given to their children. 

The Issue: Parents around the country are discussing, often passionately, the appropriateness of their children’s instructional materials. Facts about what children are being taught in school are central to this debate. However, a growing number of school districts refuse to provide parents with curricula and other controversial in-class materials, claiming they are protected by copyright laws and thus shielded from disclosure under state and local transparency laws.

Aside from school curricular materials qualifying as public records—precisely because they reflect the operations of state and local government—their use falls under “fair use” when used to inform the public on a matter of public debate. Indeed, despite what some schools might argue, parents’ ability to obtain these records is protected by federal and state law. The federal Protection of Pupil Rights Amendment (PPRA), for example, requires parents at least have the right to “inspect . . . any instructional material used as part of the educational curriculum for [a] student.” (20 U.S.C. § 1232h(c)(1)(C)(i)) Freedom of Information laws at the state and local level can and should similarly protect access to and use of curricular materials.

It does not violate copyright to use school materials for “purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.” (17 U.S.C. § 107) Schools invoking copyright—all of which have lawyers giving them taxpayer-funded legal advice—ought to know this. Parents are not trying to profit from the work of authors and publishers; they are seeking information about their children’s education. 

If a requester misuses copyrighted materials obtained under public-records laws, that requester risks penalties the same way as any other copyright offender. For instance, if a requester asks for a lesson and then assembles and sells it online, the publisher can sue. Mere fear that a requester may misuse copyrighted documents is not an excuse for overriding public-records laws, disregarding the importance of transparency, and dismissing parental rights.

Model Policy:

  1. All learning materials used for student instruction at a public school shall be open for inspection, review, and duplication. Ideally, schools should provide parents with a listing of learning materials on a publicly accessible portion of its website. Neither the state department of education nor the governing board of a public school, nor any staff employed thereby and acting in the course of his or her official duties, shall purchase or contract for copyrighted learning materials, including the renewal of subscription-based materials for which students are provided individual login credentials or access via electronic personal devices, unless provision is made to allow parents and guardians of enrolled students to review the materials within 10 school days of the submission of a written request to the school. The means of provision shall include at least one the following:
    • Providing access to the materials at the school site during the school’s normal hours of operation within 10 school days of written request.
    • Providing temporary remote access or login credentials to at least one copy of the materials for review for at least a 24-hour period following each request, not to exceed one request per item per household during each 30-day period.
  2. No public official at the state or local level shall enter into a contract with a third party that prohibits the disclosure of any learning materials kept or able to be accessed by the public official. Nor shall any public official at the state or local level enter into a contract that requires the public official to assert a claim of copyright held by the third party.
  3. Notwithstanding any other provision [in state open records law] to the contrary, parents and guardians shall be permitted to duplicate and disseminate of any learning materials so long as it is intended for purposes of criticism, comment, news reporting, teaching, scholarship, or research, and is not intended for commercial purposes. The parent or guardian reviewing learning materials shall not be required as a condition of reviewing the materials to enter into terms of a nondisclosure agreement nor waive any rights beyond complying with federal copyright law.
    • A nondisclosure agreement means a confidentiality agreement or contract provision that prohibits the disclosure of information by a party to the contract.
    • No state department of education nor the governing board of a public school, nor any staff employed thereby and acting in the course of his or her official duties, shall assert a claim of copyright over learning materials.

Definitions:

  1. “Learning materials” means curriculum, syllabi, instructional materials, assignments, presentations, textbooks, books, video and audio recordings, contracts with third parties, student surveys without regard to whether the survey was created by another student, policies and procedures, and includes:
    1. Lesson plans. “Lesson plan” means the daily, weekly or other routinely produced guide, description or outline of the instruction to be provided by a teacher to students at the school.
    2. Guest lectures. “Guest lectures”:
      1. Includes documentation of a presentation or educational event conducted by an outside individual or organization, including those facilitated by the school’s staff.
      2. Does not include student presentations given by students enrolled at the school.
    3. “Service-learning projects” includes both of the following:
      1. Any requirement to participate in internships or other forms of collaboration with outside organizations after regular school hours for course credit or as a class project or assignment.
      2. The specific internships or organizations selected by students if the selection is made from a list of specific internships or organizations provided by the school or its staff.
    4. “Used for student instruction”:
      1. Means assigned, distributed or otherwise presented to students in any course for which students receive academic credit or in any educational capacity in which the school requires the student body to participate or in which a majority of students in a given grade level participate.
      2. Includes learning materials or activities from which students must choose one or more from a selection of materials restricted to specific titles.

These definitions apply equally to items in digital format. “Learning materials” do not include tests or other assessments.

** This model language employed in this policy is based upon Goldwater Institute’s Academic Transparency Act of 2022, which in turn is drawn upon Goldwater’s Academic Transparency and Manhattan Institute’s Transparency in Training and Curriculum models, Arizona Senate Bill SB 1211, and contributions by Stanley Kurtz.