School Divisions & Open Licenses

When the Right to Apply an Open License Belongs to the School Division

Open licenses are a legal agreement initiated by the copyright holder. In the case of OER, the creator/author may not be the copyright holder, such as when a work is created during the course of employment (Copyright Act, R.S., 1985).
Teachers employed by a school division and creating lessons within their assigned role need to approach their administrators before applying an open license.
- The exception would be if the division already had policies and a process around Creative Commons licensing (as of yet, none are identified in Alberta).
- Since awareness around the use and potential of K-12 OER is still limited in Alberta, individual teachers can help raise awareness through conversations with administrators and division leaders around the possibility of applying open licensing and open practice to specific works or projects.

In Canada, section 13(3) of the Copyright Act specifies:

When the author of a work is employed and creates a work during the course of their employment, then the employer shall, "in the absence of any agreement to the contrary, be the first owner of the copyright".

Ownership of Copyright, Subsection 13(3) of the Copyright Act, R.S., 1985, c. C-42

Retrieved from the Justice Department Website https://laws-lois.justice.gc.ca/eng/acts/C-42/page-3.html#h-102834

Establishing Division Policy

School Divisions and Creative Commons.pdf

School Divisions Can Lead OER Efforts

As stated in the above document, school divisions can lead OER efforts through establishing policy and supporting open practice.

Where school divisions are already supporting collaborative projects to develop curriculum resources, incorporating Creative Commons Licenses and open practices allows for access by teachers and learners across the province.
A knowledge of how to create and share resources openly directly addresses the current tendency to avoid sharing due to a fear of violating copyright. It creates an ethical path for building on the work of others and redistributing for the benefit of many.
School divisions have a unique opportunity to position themselves as leaders in specific areas of practice through developing and sharing openly licensed resources that address current gaps in Curriculum materials.

Sample Policies

View in PDF form

As noted in the PDF above, School Division policy can support increased sharing and collaboration through incorporating Creative Commons.

It is still difficult to find examples of Division level policy that supports CC licensing (It is more common at the State or Ministry level). Where policies exist, two key components are:

Intention to openly license teaching and learning materials produced by the authority/division or created under contract.
Provision for teachers to share their work under a specified license and by following a specific process (Mountain Heights Academy, 2023). In some cases, copyright is transferred to a teacher when they openly license their work (Albany Senior High School, 2010).

Nebraska Department of Education (USA) - Proposed Policy Wording for OER Participation

Participation in OER: Collaboration through Open Educational Resources (OER) is beneficial in many ways for the district and for the education community in Nebraska.

The Educational Service Unit Coordinating Council (ESUCC) and the Nebraska Department of Education (NDE) have provided a platform to share educational materials with OER designation which can be reviewed and aligned to Nebraska’s state standards.

The board authorizes the superintendent to allow staff members to participate in OER, at the superintendent’s discretion, both by incorporating OER materials into the curriculum adopted by the board and by sharing materials and resources owned by the district. Those materials and resources include works made for hire by district employees.

Unless the superintendent or superintendent’s designee(s) determines otherwise, materials owned by the district may be shared to the ESUCC-NDE OER Collection(s) with the Creative Commons Attribution License designation of either (1) “Attribution-Noncommercial-Share Alike,” which is universally noted as “CC BY-NC-SA”; or (2) “Attribution-Noncommercial-No Derivatives,” which is universally noted as “CC BY-NC-ND.”

Proposed Policy Wording for OER Participation by Nebraska Department of Education is licensed CC BY

Albany Senior High School (Aotearoa New Zealand)

Approved by Board of Trustees 2010

Policy

Albany Senior High School wishes to encourage the open and free exchange of information, knowledge and resources; and support the collaborative production of intellectual property that is freely available to all.

The school:

Asserts its copyright over school employees’ work created during the course of employment
Applies by default a Creative Commons By Attribution License (BY) to all its teaching materials and policies and to its other work wherever possible.
Intellectual property in relation to other work (other than teaching materials and policies) is protected by default and may only be waived or altered as detailed in clause 4 below and with the express agreement of the Principal.
May make exceptions to the sharing of Intellectual Property (IP) it owns on a case by case basis with detailed reasons for limiting the free access to material; any such restrictions should be time dependent and will include consideration of applying other Creative Commons licenses to the work including Attribution-Share Alike (BY-SA), Attribution-Noncommercial (BY-NC), Attribution-Noncommercial-Share Alike (BY-NC-SA), Attribution-No Derivative Works (BY-ND) and Attribution-Noncommercial-No Derivative Works (BY-NC-ND).
Will transfer the copyright of created works to the original creator when a license which meets the free cultural works definition (i.e. Creative Commons By Attribution License (BY) or Creative Commons Attribution-Share Alike (BY-SA)) is applied to them.

Albany Senior High School encourages staff and students to support free and open access to Intellectual Property and also to apply the Creative Commons Attribution framework to work created in their capacity as an individual.

Albany Senior High School does not make any claim over the ownership of outputs or outcomes of students’ work. These belong to the creator.

Definitions of Intellectual Property

In this policy “intellectual property” includes the rights to all created work.
Outputs are the products that are created by an individual or group of individuals. This may include for example artworks.
Outcomes are the consequences or results arising from the development of, or use of IP other than products that are created from IP. Examples may include a publication such as a book, web site or, an exhibition.

Ownership of IP and outputs arising from intellectual activity

In general all IP and the outputs and outcomes arising from that IP are owned by the creator. While Albany Senior High School will derive benefits from the outcomes; there are exceptions to this, as follows:

Outputs and IP created by staff in the course of their employment are owned by the school unless otherwise expressly agreed by way of contractual obligations in an employment agreement.
Outputs and IP will be jointly owned by the school and a staff member only where such joint ownership is expressly agreed between ASHS and the staff member.

Clarity of Licensing

All published works should be clearly labelled using the appropriate symbol from the Creative Commons icon set.

Disputes

Where there is a dispute over ownership, including co-ownership of IP, and/or the commercialisation of any co-owned IP, the following process will apply:

In the first instance the dispute should be documented and presented to the school Principal.
If the dispute is still not resolved then the documentation should be presented to the chairman of the Board of Trustees.
Mediation with an appropriate authority will be undertaken if the dispute cannot be resolved by the Principal and / or the Chairman of the Board.

Albany Senior High School Creative Commons Policy by Albany Senior High School is licensed CC-BY

Mountain Heights Academy (Utah)

In some cases, Divisions policy allows for creators to apply CC licenses without consultation from the Division (Albany, Nebraska). Mountain Heights Academy in Utah describes a process for submission and review as part of licensing:

"All public education materials developed by School employees in whole or in part with School funds shall, upon review and approval of the School, be licensed and subsequently shared under a Creative Commons attribution license (“CC-BY license”)." (Mountain Heights Academy, 2023)

View Full Policy on Page 139 of the Board Policy Manual

Mountain Heights Academy. (2023). Public Education Materials Development Policy. Governing Board of Directors Policies & Procedures Manual (p.139-40). Mountain Heights Academy, Utah. https://mountainheightsacademy.org/images/pdfs-doc/BOARD_POLICY_MANUAL_-_MHA_10-31.pdf

Washington State: Key Considerations for Districts

Washington Office of Superintendent of Public Instruction (OSPI)

Excerpt on Open Educational Resources (OER) from

OER Key Considerations for Districts

Update instructional materials adoption policies that rigidly define textbooks or curricular materials with more flexible language that includes consideration of OER (Open Educational Resources).
Enable more flexible use of instructional materials budgets. This funding could support development and adaptation of OER and technology infrastructure.
Clarify the current district policy regarding copyrighting of created material and emphasize that materials created by state, regional, or local entities using public funds will hold an open license for sharing, collaboration, and access for all educators and students.

OER: Key Considerations for Districts by the Washington Office of Superintendent of Public Instruction is licensed under a Creative Commons Attribution License. Logos are property of OSPI.

OSPI's Copyright and Open Licensing Policy

As a State Department of Education, Washington's Office of Superintendent of Public Instruction has its own policy for openly licensing work created by the department. It also acknowledges that when public funds are used to create the resources, an open license is in the best interest of stakeholders:

"OSPI policy requires all copyrightable intellectual property created by OSPI employees, contractors, and grantees to be openly licensed. This policy allows all stakeholders to realize the educational impact from the substantial investments the state, the federal government, and private foundations make in educational resources created by or for OSPI".

Office of Superintendent of Public Instruction (2016). Copyright and Open Licensing Policy. Washington State, US. https://ospi.k12.wa.us/sites/default/files/2023-08/copyrightopenlicensingpolicy.pdf

Tools for Teachers

Sample Communication to Administrator: Talking points and written content for a teacher to request permission to openly license an original work they authored.

Open Licensing Checklist: What to verify and consider before an open license can be applied.

References

Copyright Act, R.S., 1985, c. C-42. Retrieved from the Justice Department Website https://laws-lois.justice.gc.ca/eng/acts/C-42/page-3.html#h-102834

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