Openness and Copyright

There are two distinct topics that I would like to discuss in relation to openness and copyright.

The first is in regards to the story of the life of Aaron Swartz who was a brilliant individual, a computer programming genius and an information and democracy activist. Prior to watching “Internet’s own boy”, I did not know anything about him. Because of whom he was and what he did, the United States’ government and justice system saw him as a threat. They decided to make an example out of him. Their persecution on Aaron was done to deter other individuals including hackers to try to follow in Aaron’s footsteps.

Aaron’s curiosity was endless and he lived his life according to some fundamental ideas such as: Information is power, books are the cultural legacy of the world and computer programming can accomplish things that human cannot do. Throughout his life, he used his knowledge that he acquired from books, his ability with computers and his intelligence to try to make the world a better place for everyone. For Aaron, public information should be free and readily available instead of being locked up and only accessible at a cost. He also thought that the law should be an operating system of the democracy and for this reason; he tried to download the Federal court files to post them on a public domain. He also tried to do the same thing to scholarly journals so that anyone could have access to it. He saw corporations and governments being driven by greed which to him was morally wrong. Although, Aaron’s actions were guided by good intentions, the institutions did not see it the same way and their persecution towards him took a toll ton Aaron to the point that he committed suicide. I find it very sad that Aaron Swartz tried to use his abilities to help the common good but ended up being persecuted by the justice system and large corporations. However, I am not surprised by it. Decisions based on money, power and greed can be seen everywhere around the world. In Canada and BC, we see those in regards to the environment, the education, the homeless, the elderly and much more. Teachers in this province have to deal with funding that is based more on budget and power than on the well-being and education of the next generation. I don’t know when it will change but I think that until it does, there need to be more people like Aaron Swartz and other activists who believe in fairness and openness.

The second topic that I want to discuss is in regards to the intellectual property rights of the course content that teachers create for their classes. In the “old days”, it was easy for a teacher to claim ownership over his course material. He could share it with other teachers and he could also take it with him when he was switching positions. These days, with the increased use of technology to create course content and to deliver it using the district’s technology, there are questions as to who control the intelligence property rights. In the United States, “the Copyright Act of 1976 stipulates that materials created by teachers in the scope of their employment are deemed ‘works for hire’ and therefore the school owns them.” Following the same rules, “In 2004, a federal appellate court in New York ruled that “tests, quizzes, homework problems, and other teaching materials” were works made for hire owned by the district and that the “academic tradition” of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication.” In regards to the intellectual property rights for a teacher in Canada, I have searched online without much success mostly because there has not been many court cases on the matter.  However, Guay write in the article Who owns copyright: employee or employer?  that “if the ultimate authority over the performance of [the employee]his work reposes with his employer in the sense that the individual is subject to his employer’s orders and directions. It has long been established that the employer does not need to exercise this control de facto as long as he could do so.” This means that when the employer provides direct instructions of what to do; then, the material being produced belongs to the employer. However, “if the employer simply gives the individual objectives while the manner in which the tasks are to be accomplished is left to the individual’s discretion, courts are more likely to conclude to a contract for services.” In regards to a teacher under contract in a school district, the employer instructs the teachers to teach therefore, the teacher is providing a service to the student. Furthermore, most teachers teach their students during the instructional day and if there is any extra time left, it is used to assess or report on students’ work. Teachers are allowed preparation time but as we all know, it is not sufficient. This means that the development of course material is most likely being done on the teacher’s own time away from the school with his own computer and stored on his own device, so he would have the right to copyright, creative commons or copyleft for the educational material that he created. However, according to the Copyright Act, if the course content is created on a school computer and during school time with school materials it belongs to the school district. This fact raises the issue that some districts in BC are now promoting the Google Application for Education (GAFE) program for educators and students. Some are even providing computer devices for their teachers to use for teaching. If teachers decide to use school district devices to create their educational material and host it under the district GAFE account then, the district has copyright to it. Personally, as a teacher, I think that it is important to protect our intellectual property rights. I am all for sharing but I should be the one who gets to make the ultimate decision just like in the old days when I could chose to take all my course material with me or to leave it all behind. 

All of the above were related to course content being delivered in a traditional manner. However, what about online course content created by a teacher would belong to the district. Is the teacher allowed to use it to teach in another online school? If not, how much does the course material need to be altered to prevent the district from suing the teacher for impediment and for the teacher to be able to license it under Creative Commons? The digitization of our education system is raising more ownership issue of teaching material that will need to be addressed in the future. If a case is ever brought to light, the court would have to “consider various factors such as whether the work was prepared in the individual’s free time or in his work time, whether the work was prepared following instructions given by the employer or at the individual’s own initiative, whether confidential information to which the individual would not have had access without his employment was used to prepare the work, whether the employer’s resources were used, whether the task is part of the individual’s job description, etc.” 

Aaron Swartz did not agree that a researcher should have to hand over his findings to the corporation who funded the research. He believed that researcher should have the right to make public for everyone to learn from it. The same idea is also true for material created by teacher in a district. The teacher should have the right to licenses under Creative Commons which allows for some restrictions to be stipulated or under Copyleft which means that anyone can do anything to the material.  If Aason Swartz were alive today, I would love to hear his opinion on if the teachers have the intellectual property rights on what they have created to teach their students.
 
References: 
Aviles, Chris. Do Teachers or School Own Resources Created in the Cloud?  Retrieved date: May 15, 2016, from:   
https://www.edsurge.com/news/2015-06-22-do-teachers-or-schools-own-resources-created-in-the-cloud  
Walker, Tim. Legal Controversy Over Lesson Plans. Retrieved date: May 15,2016 from:  http://www.nea.org/home/37583.htm