THE RIGHTS TO STUDENT WORK

IVAN HOFFMAN, B.A., J.D.



        Here’s the situation: a teacher puts together a class program that uses the work of a student and, in addition to the use within the 4 corners of the class curriculum, the student’s work is now intended to become part of a corporate training or distance learning program administered by the school for which the teacher works.  Who has rights to the student’s work?

        Unlike the area of legal rights to faculty work, which is often complex (read the several articles on my site under the link “Articles About Corporate Training and Online Learning”), the answers when it comes to student work are mostly pretty straight forward.  As a rule, students own all the rights of copyright in and to the work they create as part of their education, whether generally or within the scope of a particular class.  Any use of that work must be with the express and generally speaking written permission of the student.  This is because under United States copyright law the creator of any copyrightable work owns all rights to that work unless they are bona fide employees (not so in the case of students in respect of the school, although the students may be treated like servants) or have entered into a valid, written and signed agreement transferring those rights to a third party.

        But despite the breadth of that statement, there are some issues that should be discussed in this area.

Fair Use

        Within the confines of the classroom, in a face to face setting, the rules regarding “fair use” as applied to educational uses of protected materials apply to the use of student work.  For a fuller discussion of these issues, read “Fair Use” on my site.  Issues then present themselves when course work including student contributions to that work is then modified to prepare class summaries that are for sale, either by the school or some outside institution for these may reduce the availability of the fair use defense and may require appropriate licenses from all rights holders.

        However, it is far from clear whether or not those rules regarding fair use apply to the use of student work in a more commercial, corporate training or online learning environment.  For a more fully developed explanation, read “Fair Use in Online Education and Web Based Training.”

Student’s Oral Contributions

        What happens if a class is being video or audio taped for further usage such as the sale of those tapes for some corporate training or distance learning project?  What then is the status of the legal rights of the student to comments, questions, responses etc. the student makes during the course of the class?

        The response here is that there may be some implied license granted by the student to have his or her image and audio comments included in the video.  However, one could argue that such a consent, if it existed at all, may not include a consent to have the student’s work included in a more commercial version of the project.  By analogy, one could argue that when a spectator goes to a public event there is a consent, implied in law and often printed on the ticket somewhere (though often covered in hot dog mustard), to have one’s image included as part of the “performance” of the event and to have that image included as part of the use of that performance including commercial uses, at least provided one’s image is not distinguishable from the crowd in general.  But a classroom environment seems a far cry from a commercial project and further, the contribution of the spectator at the ball game, for example, most often does not involve a definable contribution such as commentary, substantive contribution and so on.

        In this regard then, perhaps it is up to the school or teacher to include some sort of notice of waiver of rights in some school policy memorandum or in the class syllabus.  However, as I have written in “The Validity of School Policies,” this would very likely be insufficient to transfer to the school or the instructor any intellectual property rights to the student’s contributions as they appear on the tape.  The mere “performance” of the student’s contributions in the form of the student conveying the information orally, does not constitute a publication of the underlying protectable elements of that contribution.  Thus having some implied license to use a student’s name and/or likeness, a waiver of some level of a right of privacy, is different in kind from obtaining rights to copyrightable material.  To obtain those rights, the school would have to have a valid, written agreement.

The Use of Online Policies

        Given the growing use of online learning experiences, what happens to the rights issues if the school posts some online version of its policies regarding intellectual property rights?  Does this change the equation regarding ownership of those rights?

        Clearly the answer to this starts with an analysis of the content of that policy.  Does it state, in appropriate language, what happens to student contributions made during the online course, whether in chat rooms or other interactive sessions, or to materials submitted online?  Premise number one again is that the creator owns all the rights to that creation.  Read “C Rights in E Mail” on my site.

        However, it is possible that the policy could be deemed a non-exclusive transfer of some rights if only to use the student’s contributions as part of the course material only but this would not likely be sufficient to grant further rights including the rights necessary to sublicense the course for a corporate project.

        Further, any policy, to even have a remote chance of being deemed a valid transfer, would have to be set up technically on the school’s site in such a way as to constitute a contract between school and student.  By this I mean that the policy has to be posted in such a way that, in order to participate in the online course, the student would have to travel through the page containing the policy and affirmatively consent by clicking on some sort of “I Accept” button.  With the adoption of digital signatures, this could constitute an acceptance of the transfer of rights.

Conclusion

        In sum, there is a strong and probably legally valid presumption that the student retains all rights to the student’s contributions to a course.  It would take a significant shift in legalities to change that presumption.  Thus, if a school is intent on making use of its curricula for purposes other than as course material, it should start by examining its policies and approaches for obtaining the requisite rights from students.

        And faculty as well.

© 2000 Ivan Hoffman

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This article is not intended as a substitute for legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  You should consult with an attorney familiar with the issues and the laws.
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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


 

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