Copyright Protections and Transparency

Copyright protections are a strange thing to bring up in the same sentence as the push to help provide parents more transparency in education. And in some ways, it is. Most people in the federal and state legislatures that we talk to agree with and understand the need for robust intellectual property rights to incentivize both creativity and innovation. Those incentives are background assumptions for the business of information. 

Where the rubber’s more likely to meet the road is in cases where the policy goal has nothing to do with copyright.  Case in point are legislative proposals to establish a “Parents Bill Bill of Rights”. Introduced both at the state and federal levels, these proposals  — are designed to increase parental transparency into what kids study.  

Why this matters to copyright is that most of these proposals would require schools to make all textbooks publicly available on a website. The problem is that the states don’t own the IP in those materials: our members – the companies that develop and publish the materials – do. The Internet publication of those books without permission would be copyright infringement and a violation of federal law. Maryland tried something similar, and it ended in terrapin tears.

Existing law already permits parents to inspect “instructional materials,” which is defined as instructional content provided to a student, not including tests and other assessments. Federal proposals would amend a different part of the statute to provide that K-12 parents have “the right to review, and make copies of, at no cost, the curriculum of their child’s school.”  “Curriculum” is undefined.  So does that mean that states can just hand out textbooks?

That would be… unwise. In addition to the legitimate concerns of textbook copyright holders, who invest significant sums in developing content that can be used in curricula, this approach runs into core principles of statutory construction.  The first rule of thumb is that undefined terms are given their plain English (e.g., dictionary) meaning.  According to one source, the term “curriculum” means either the courses offered by an educational institution or a set of courses constituting an area of specialization.  The second rule of thumb is that statutes are supposed to be read to give each part meaning.  The federal proposal up for consideration on the House floor this week defines “instructional materials” in a manner differently from  “curriculum.”  And the third is the rule on implied repeal: you’re not supposed to infer that Congress intended to repeal the Copyright Act unless the new statute’s text is irreconcilable with it.  Here, both parts of the statute can be read harmoniously. .  Instructional materials may be inspected (and curricula could be copied) but in neither case is infringement  permitted; indeed, permitting copying would violate title 17.

Still, if these proposals become law, this is the kind of language we hope that the agency clarifies in regulations. If you read it in a hurry (like, say, an overextended school district’s lawyer), it’s easy to make that mistake. 


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