Copyright Claims Can’t Come at the Expense of Public Transparency 

Ben Isgur and Braden H. Boucek 

It’s safe to say that what’s being taught in schools is a hot topic these days.  Parents around the country are discussing, often passionately, their children’s instructional materials and whether they are appropriate.  Central to this debate, like any other, are the facts—what are kids being taught?  But a growing number of school districts refuse to provide parents with school materials, claiming that they are protected by copyright laws and thus shielded from transparency laws. 

What are parents to do when their school refuses to give them copies of school materials and instead sends them a letter citing laws that at first glance even appear complicated to many lawyers?  Most feel helpless and simply throw their hands up.  But they don’t have to.  Unfounded claims of copyright do not trump public transparency laws and the public’s right to know. 

Copyright protection exists to reward artists and innovators by letting them profit from their creation and protecting them from those who would enrich themselves by using their work without their permission.  Parents don’t ask for school materials because they want to profit off them—they simply want to know what materials the school is providing their children for 7 hours a day.  

School materials fall under “fair use” and, despite what schools tell them, parents’ ability to obtain these records is protected under the law.  It doesn’t violate copyright when you use the materials for “purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.”  The schools invoking copyright—all of whom have lawyers giving them taxpayer funded advice—ought to know this.  Parents aren’t trying to profit off the publisher.  

Fair use is pretty easy to understand.  A newspaper might depict the latest controversial piece of art that makes it into a museum.  It hasn’t violated the artist’s copyright.  If your local news station flashes a shot of the architectural plans for the newest stadium, it isn’t stealing from someone else’s creation.  It’s just informing the public.  Everyone understands this.  Parents have the same rights. 

How can Americans have a productive debate if we can’t even see the materials we are arguing about?  Justice Stewart once wrote: “Censorship reflects a society’s lack of confidence in itself.”  Denying parents access to curriculum is the way government schools say they do not trust us enough to know what they are up to and talk about it.  That’s something sure to anger people.  

The First Amendment ramifications of schools using copyright law to improperly evade their legal obligations cannot be overstated.  In fact, fair use originated as a requirement that “ensures consonance with our most important First Amendment values,” to quote one Supreme Court Justice.  If copyright conflicts with your fundamental right to engage in political speech, then the First Amendment wins.  It is the Supreme Law of the Land, not copyright protections.  

It’s no wonder the arguments over curriculum feel like they have no end in sight.  Where would it go when the stonewalled parent is left to try and make their case without access to the materials?  Frustrated parents feel gaslit when schools can deny they are teaching anything objectionable and then deny parents the ability to prove them wrong. 

And again, you may instinctively think concerns over classroom materials are overblown, but that’s just more of a reason to get the materials out there.  Let’s at least have a debate based on facts.  Maybe these concerns are overblown.  We won’t know if no one can see the materials. 

While parents can sue, this is an area of the law that is surprisingly underdeveloped.  But it should be simple.  Courts should understand that a public records request does not violate copyright law absent unusual circumstances, like if someone wants to copy an entire textbook, and post it on a restricted website that others must pay to access it.  

In the meantime, if local bodies want to contribute to making a debate that is already happening more civil, they can simply reject contracts with publishers that require they assert copyright (on the publisher’s behalf) and insist on full compliance with public transparency.  State legislatures can pass laws requiring contracts with government entities in their state to contain similar provisions. 

And of course, if a requester misuses the copyrighted materials, they can still be subject to penalties.  For instance, if a requester asks for a lesson and then goes and assembles it and sells it online, the publisher can sue.  But this isn’t a basis for a wholesale overriding of public transparency. 

If we are going to have a raging debate, let’s make it a well informed one.  We can’t do that if our schools are making bogus claims of copyright while ignoring the First Amendment. 

Ben Isgur is an attorney at Southeastern Legal Foundation.  Braden H. Boucek is the Vice President of Litigation at Southeastern Legal Foundation.