Laura H. Chapman, arts consultant and curriculum designer, writes in response to Mercedes Schneider’s recent post, in which she wondered whether theCommon Core copyright could be sold, for example, to Pearson. Chapman asserts that the copyright is unenforceable. I assert that if every state that signed a Memorandum of Understanding to adopt the Common Core were to convene review panels of teachers to revise and improve them, no one would stop them. The standards cannot be standards if they cannot be revised and improved. Chapman refers to the essential requirements of the American National Standards Institute; the designers of the Common Core standards violated or ignored all those essential requirements, which would have required them to have an open process involving all interested parties, not dominated by a single interest, and amenable to revision by those with legitimate concerns.
Laura Chapman writes:
“I have been thinking again about the copyright issue with the Common Core State Standards.
“In addition to noting that these are not really standards by the criteria set forth by the American National Standards Institute (ANSI) http://www.ansi.org/essentialrequirements I think that the essential structure and constructs in the CCSS are not really subject to copyright.
“Here is why this non-lawyer thinks there is a lot of room for modification, and for the menu like choices that the corporate authors warned adopters not to try. That threat may have been a huff and puff of hot air. Here is why I think so.
“The CCSS set forth ideas, procedures, processes, a system, concepts, principles, and a method for thinking about education. None of these can be copyrighted. I will leave it to lawyers to work with the fine points, but here is the language posted at http://copyright.gov/circs/circ31.pdf
“What Is Not Protected by Copyright
“Copyright law does not protect ideas, methods, or systems.
“Copyright protection is therefore not available for ideas or procedures for doing, making, or building things; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas or algorithms; or any other concept, process, or method of operation.
“Section 102 of the Copyright Act (title 17 of the U.S. Code) clearly expresses this principle:
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
“What Is Protected by Copyright
“Copyright protection extends to a description, explanation, or illustration of an idea or system, assuming that the requirements of copyright law are met. Copyright in such a case protects the particular literary or pictorial expression chosen by the author.
But it gives the copyright owner no exclusive rights in the idea, method, or system involved.
“Suppose, for example, that an author writes a book explaining a new system for food processing. The copyright in the book, which comes into effect at the moment the work is fixed in a tangible form, prevents others from copying or distributing the text and illustrations describing the author’s system.
“But it will not give the author any right to prevent others from adapting the system itself for commercial or other purposes or from using any procedures, processes, or methods described in the book.
“So, if you are in the orbit of some legal eagles you might ask them to look at the 1,620 Common Core State Standards and get an opinion on how much huff and puff has been put into the rhetoric surrounding their use.
“Most standards, and the CCSS are not an exception, are replete with recycled ideas, principles, and so forth. For example, this standard at http://www.corestandards.org/ELA-Literacy/RL/9-10/7/ includes a sample assignment from Achieve’s American Diploma Project, and the writers at Achieve recycled it from an Introductory English survey course at Sam Houston University, Huntsville, TX.
“The exact example in the CCSS for grades 9/10 appears on page 107 in Achieve’s 2004 American Diploma Project (ADP), Ready or Not: Creating a High School Diploma That Counts, http://www.achieve.org/readyornot
“Maybe we should be asking who owns the copyright for the federally funded SBAC and PARCC tests and for the curriculum materials they had to develop in order to create the tests.
“Are those federally funded work products and items in the public domain? Just thinking and wondering.”
Diane Ravitch's blog 
Yes. As critical as I am of just about every aspect of the Common Core, the copyright issue is a red herring.
Then WHY hasn’t any state changed ANY of the more egregious parts? This is not the tablets coming down from Mt. Sinai, after all. That’s because the testing following the CC. The copyright may not be a big deal, but because the testing is all based on the flawed document, everyone is in lock-step.
Nailed it!
“Hackety hack (don’t come back)”
Fix a hack or chuck it?
The standard is a key
You really can not muck it
The outcome’s plain to see
But if you allow people to actually, you know, modify and adapt the CCSS so that genuine learning and teaching can actually start to take place, you create a disconnect between the associated scaled-up high-stakes standardized testing and all that world class ‘close’ reading.
And what you can’t measure you can’t control…
And then the most important metric of all, $tudent $ucce$$, loses all its allure and promise.
Wouldn’t want to have that happen, now would we?
¿? Yes, we would…
😎
It is copyrightable (if that is a word) as a work of fiction as that is what it is.
If the CCSS fall more into the realm of a method or system, then they could conceivably by patented or protected as a “trade secret”. This latter type of protection would appeal no doubt to their authors and those who paid for them.
If legislatures and state boards adopt CC by name, they are adopting a copyrighted product. Right now, the copyright owners are being kind. But as the “sole owners” of CC, they can alter the terms as they please.
Mercedes.
You are well informed and probably correct about the “kindness” of the copyright holders. in not chasing down copyright violations. I am not among those who thinks the copyright holders have any kindness or credibility as purveyors of national standards.
But suppose the copyright holders were not so “nice” and revved up for some lawsuits.
Then there would be an issue of who gets to sue whom, at what cost, who bears the cost, and whether it is politically wise or makes economic sense for the copyright holder to be engaged in that process.
Profits from holding the copyright might be compromised, but presenting acceptable proofs of “lost profits” in any court might also be a grand embarrassment. Out of court settlement? Damages?
If the copyright holder (present of future) wants to sue school districts, or state departments of education, or state boards of education, or state legislatures… just imagine all of that.
It’s laughable that anyone would think that a list of ideas as extraordinarily HACKNEYED as the Common Core in ELA is could be copyrighted. The CCSS in ELA is a compendium of unexamined, amateurish ideas about the teaching of English. Its equivalent, in medicine, would be a list of folk remedies–wash the wound and apply vinegar, don’t swim after eating, and so on.
cx: It’s laughable that anyone would think that anyone could copyright a list of ideas as extraordinarily HACKNEYED as the Common Core in ELA is. The CCSS in ELA is a compendium of unexamined, amateurish folk notions about the teaching of English. Its equivalent, in medicine, would be a list of folk remedies–wash the wound and apply vinegar, don’t swim after eating, and so on.
Bob, I agree, and I agree with Laura’s points from a curriculum development perspective. Unfortunately, with regard to copyright, issues about it being “unexamined” and “amateurish” are legally moot. It isn’t that any particular everyday idea (dare I say common?) can be copyrighted, but a copyright can be claimed for the standards *as they are written* in Common Core publications.
When I worked in copyright law, I witnessed defendants who arrived with stacks of papers and books about the merits or lack thereof regarding copyright (often with attorneys who had no copyright experience). All of these other issues were deemed irrelevant, and from my typical experiences, I could see it going like this once the judge “reviews” everything:
Judge:
Is this the publication of standards known as Common Core?
Plaintiff or Plaintiff’s Attorney: Yes.
Judge:
Were these published standards revised, and does this document contain the revisions?
Defendant or Defendant’s Attorney: Yes.
Judge:
This revision constitutes a derivative work. Judgment for the plaintiff.
Granted, a state would have good representation, but this is basically the type of scenario that I saw countless times. However, I’m not sure what role the Memorandum of Understanding may play (if any). Since the MoU allows us to *add to* the Common Core, it might be successfully argued that the MoU constitutes *permission* (or “consent”) to *revise* the standards. If that were the case, the defendant may even win on summary judgment.
Then again, since the MoU specifies that we can *add to* but not *remove from* the Common Core… Well, I can just hear the debates about what constitutes “adding to” and “removing from.” (Anybody know what the definition of “is” is? lol) This could get complicated to say the least…
Your point is well made, Joe, but the CCSS is simply a mashup of previously existing state standards with a little New Criticism for Dummies and some Lexile measures thrown in. Nothing substantial was added by the creators of these “standards.”
The Common Core State Standards
common. adj. Vulgar, base, mediocre. Said of unexamined, inherited notions, as in “Common sense is that layer of prejudices laid down before the age of eighteen.”
state. adjectival nominative. Of the Leviathan (a reference to the Common Core Curriculum Commissariat and Ministry of Truth, the new U.S. education Thought Police?)
Thanks Bob. I agree the standards lack quality. Your definitions are hilarious btw. I hear really unoriginal and poorly created music all the time (especially in Nashville…), and yet, it’s protected by copyright.
All this talk of copyright is reminding me of why I left that job to pursue a teaching career. During my days of copyright work, I used to reminisce (reminisce!!) about my days as a substitute teacher…
I used to work for a copyright attorney during the 1990s, and my job involved enforcing the intellectual property rights of the clients we represented. Intellectual property rights can often be a contentious issue, challenging to explain, and difficult to truly understand. My intent is not necessarily to provide an opinion on whether or not intellectual property rights are “good” or “bad,” but only to provide general information.
Intellectual property rights include things such as (but not necessarily limited to) patents, trademarks, service marks, and copyright. It is not unusual for these things to be conflated. Patents typically involve inventions, and I don’t have any experience with patents. I have limited experience with trademarks and service marks. Trademarks apply to things such as company names, brand names, product names, and logos when they are used in commerce on products. Service marks apply to names and logos when they are used in commerce with regard to rendering services. Before such marks can be registered, the applicant has to submit proof of their use in commerce, and the US Patent and Trademark office “publishes” these marks for opposition. If you see the small letters “TM,” a person or company is claiming a trademark; if you see the letter “R” surrounded by a circle, it signifies that the mark is a registered trademark. (The “R” with the circle can be used only if the mark is indeed registered.)
A copyright holder has five exclusive rights: 1) the right to copy, 2) the right of distribution, 3) the right to create derivative works, 4) the right to publicly display, and 5) the right of public performance. Each of these five exclusive rights tends to cover a multitude of scenarios. Anyone wishing to do these things must have permission from the copyright holder.
I’ll try to provide some simple examples…
Copy and Distribute:
When an author signs a publishing agreement, the author typically agrees that the publisher may 1) produce copies and 2) distribute copies of his or her intellectual property. In addition to books, this also includes things such as music, software, video games, television shows, movies, etc.
Derivative Work:
If I wanted to create a sequel (one of many examples) to someone else’s copyrighted* work, I would need permission from the current copyright holder (which may or may not be the work’s author). However, there are certain exceptions to this part of the law with regard to parody.
*(Btw, the word is “copyrighted” not “copywritten.”)
Public Display:
An example would be a work of visual art such as paintings, photographs, sculptures, and so forth. Although I don’t have as much experience with public display issues, here’s an interesting example… If I’m producing a film and one of the scenes is filmed in a bedroom setting with a poster on the wall, I must have permission (or “copyright clearance”) for the use of this poster in my film so that I’m not infringing on the copyright.
Public Performance:
This most often pertains to the use of a copyrighted works such as musical compositions for what is legally defined as “public.” If I own a business where musicians perform, I have to have a license for the music being performed. Likewise, if I own a business where I’m playing recorded music (i.e. CDs, MP3s, etc.), I have to have a license for the music I’m using. This even includes “rebroadcasting” such as playing the radio or TV (even if the TV’s volume is muted…); however, there were some exemptions (for small businesses using TV and Radio) that were enacted by congress during the late 1990s. Public performance rights apply to radio transmissions, TV broadcasts, and business establishments, as well as Internet sites. In the USA, companies such as ASCAP, BMI, and SESAC administer performance rights, and these companies are sometimes referred to as “the music police.”
The basic concept is I own the “milk,” but I don’t own the “cow.” So if I purchase recorded music or a movie, it’s legally for private use only. This is so even if a copyright notice (i.e. “All rights reserved”) isn’t given; it’s legally implied. If the work is played outside of a circle of family and friends (legally defined as a “public performance”), it is licensable. I’m sure many of you have seen the FBI warning on a DVD, the small print on a CD, or heard the announcer of an NFL Game state, “This telecast is copyrighted by the NFL for the private use of our audience… (etc.)”
So if I purchase a CD, I own the CD, but I don’t own the music contained on the CD; this would apply to an audio book too. However, there are exemptions to the copyright laws that fall under the doctrine of fair use. This includes the use of a portion of the work for educational purposes, and critical commentary (such as a review). Fair use also includes parody (lots of case history here if you’re inclined).
Currently, a copyright exists for the life of the author plus 70 years (this was extended from life plus 50 years in the late 1990s). If a work is no longer under copyright, it is classified as “public domain.” If a work is public domain, others can use it without seeking permission. However, if somebody does a translation, an adaptation, etc. of a public domain work, a copyright does exist for that translation, adaptation, etc.
Prior to 1978, works had to be registered with the Library of Congress in order to be copyrighted. However, a copyright now exists once the work is put into a tangible form (i.e. written, recorded, etc.). Registering the copyright with the Library of Congress provides a third party for documenting one’s copyright, which is especially useful with regard to copyright infringement claims. It’s basically up to the copyright holder (author, publisher, or entity’s representative) to enforce his or her works against infringement and to protect him or herself against claims of infringement.
There is a body of case history with regard to what can or cannot be protected by copyright. With music (for example), a chord progression by itself cannot be copyrighted; otherwise the Blues might not exist…
With regard to Common Core, I think the standards “in the form in which they are written” could indeed be copyrighted or may even be eligible for a patent or “patent pending” (both of which are more difficult to obtain than a copyright). Pharmaceutical companies often obtain patents for the medicines they create, as well as trademarks for the company’s name and the trade name of the medicine itself. If I’m not mistaken KFC (KY Fried Chicken) currently holds a patent for Colonel Sanders’ secret recipe of 11 herbs and spices. Speaking of “Sanders” and “secret recipes,” William Sanders’ VAM model is proprietary, but I don’t know the extent to which his algorithm may be protected as intellectual property. (Maybe I should look that up, unless somebody else knows and cares to share.)
Intellectual property rights do change from time to time, and it’s hard to say what could happen with regard to Common Core and copyright claims. If an entity (or entities claiming collaborative ownership), wanted to claim and assert its copyright, “violators” may receive demands to sign licensing agreements, “cease and desist” letters, and so forth. Ultimately, it could end up in court, and things are not always cut and dry.
To quote Laura H. Chapman:
“Then there would be an issue of who gets to sue whom, at what cost, who bears the cost, and whether it is politically wise or makes economic sense for the copyright holder to be engaged in that process.”
My former boss (a ruthless copyright attorney) would send letters to people instructing them to comply with the copyright laws (by licensing or discontinuing). But if they ultimately refused, he would make a business decision on whether or not to file a lawsuit for copyright infringement on a case-by-case basis. This decision was typically made as a “cost/benefit analysis” of how much it would cost to pursue and how much would likely be awarded (and paid!) in damages. However, I occasionally saw him pursue some “small” cases with relatively obscure entities and then highly publicize the case to get others to comply.
I vaguely remember reading about an issue several years ago regarding a “trademark dilution” case where Victoria’s Secret had filed suit against a small adult-oriented business called “Victor’s Dirty Little Secret.” I’m not sure what happened with that particular case, but the suit was filed due to the precedent of a Supreme Court ruling, and I know trademark dilution laws were highly criticized for favoring large business interests over the interests of small business owners. A few years later, I remember reading about an act to revise the trademark dilution laws as well.
Intellectual property rights can be so complicated that only certain courts have subject matter jurisdiction. But I don’t remember which courts are designated for such matters. Unless things have changed since the 1990s, copyright law isn’t even a required course in law school, but may be taken as an elective.
We already know Common Core is supported by big money. And even if you “win” a legal battle, the stress can have long-lasting effects. Perhaps it’s debatable as to whether a copyright claim to the Common Core is enforceable or not, but I wouldn’t want to find out the hard way.
Joe Nashville, I would love to see if the National Governors Association and the CCSSO would actually sue a state for revising the standards. My hunch is it would be very embarrassing for them if they did.
I would love to see that too! If they sue, let’s hope it has the same effect on them that the lawsuits against Napster and file sharing had on the music industry!
One problem here is conflating the copyright and the license (the “public license”). Basically, every piece of text created in the US is copyrighted. Even if you want to give away your work, it is under your copyright and you allow re-use under a license. That’s how Creative Commons works. That’s how free and open source software works.
The legal system is NOT set up for simply releasing work into the public domain. See, for example, https://creativecommons.org/about/cc0
“Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain.”
Establishing copyright and providing a permissive license is the way these things are properly done. The ONLY problem with how the Common Core is *licensed* is the stipulation that reproduction is permissible only “for purposes that support the Common Core State Standards Initiative.”
What this means is that under the license I could produce “Tom’s Common Core Standards” (since “Common Core Standards” is not a trademark). As long as I provided attribution for the standards I directly copied from the CCSSI Common Core, I could mix in my own standards or modified standards as I saw fit.
If the NGA and/or CCSSO decided that this use did not constitute “purposes that support the Common Core State Standards Initiative,” they could charge me with breach of the license for that reason. If that went to court, it could probably go either way, especially if my version emphasized that its purpose was to propose improvements to the Common Core and to strengthen its mission.
Even if my publication of “Tom’s Common Core” was found to be not supporting the CCSSI, I would still have a strong fair use argument, assuming I wasn’t selling my version. My standards would be primarily non-profit and educational in purpose; standards by nature are usually based in part on existing standards, and NGA and CCSSI have no direct commercial interest in the standards.
Finally, the license is clear that current, not-in-breach licensees (users, readers) cannot have the terms of the license retrospectively changed. NGA and CCSSI could sell the copyright, they or someone else could issue the standards under a different, additional license, but they can’t take away the license that has already been granted to reproduce the work, in whole or in part.
The Common Core process is controlled by the rules in Race to the Top and other federal guidelines, and by the tests. Those are sufficient for their needs.
That’s not quite accurate on copyright Tom, but I like the purposes you mentioned, as well as your last statement. Btw, I like open source software too. If I may, I’d like to address a few things that you and others mentioned. (Full disclosure: I don’t support Common Core.)
The fact that Common Core wasn’t developed as part of a democratic process and is not subject to revision is important and unfortunate from a curriculum development standpoint, but that has no relevance with regard to copyright law.
The things being confused in most of the discussion are the different forms of *intellectual property*, whether it is *copyright, patent, trademark, and (perhaps) service mark*. It isn’t unusual for somebody to claim he/she had a name copyrighted when it was actually registered as a trademark. Whether or not the Common Core standards are copyrighted, patented, patent pending, trademarked (or a combination thereof) will determine the extent to which it may be legally defended against infringement (if it ever came to such a claim).
In the case of Common Core, it would be easy to register a legitimate copyright. It would not be difficult to register Common Core as a trademark either; it could easily pass one of the US Patent & Trademark Office’s examining attorneys, as well as publication for opposition in the USPTO’s Official Gazette. Getting a patent (for anything) is a lot more challenging, and I’d be absolutely shocked if Common Core could be patented. Therefore, at the very least, it would be possible to claim and register a copyright for the Common Core standards *as they exist in written form*, and it would be possible to register the name “Common Core” as a trademark.
Also, claims of being used by a non-profit organization or for educational purposes, do not give one the right to use copyrighted materials without permission of the copyright holders. The only exception (at least with music) is when the copyrighted work is specifically used during the worship service itself. Only a portion of a copyrighted work may be used (copied or otherwise) for educational purposes; what constitutes a “portion” is not specifically written in the federal copyright laws, but the portion cannot consist of a majority of the work. Copyright holders have just as much right to be paid when their intellectual property is used for educational purposes as I do when my services as a teacher are used for educational purposes. If they choose to grant permission (with or without charging a fee), they may do so, just as I may choose to donate my teaching services. Tams-Witmark is a prime example, and K-12 schools are required to license with TW in order to legally perform one of the musicals they represent.
The information on CC0 site is not entirely accurate either. They state, “Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished.” However, they do not provide any specificity with regard to “jurisdiction.” US Copyright Law is a federal law (Title 17) that applies to the US and its territories.
Furthermore, there are international copyright treaties, the major ones being the Berne Convention and the Buenos Aires Convention. The US is the world’s #1 exporter of intellectual property, and China is frequently criticized for not respecting international copyright laws (China is notorious for pirating music, movies, TV shows, video games, software, etc.). There are even reciprocal agreements among different countries’ performance rights organizations with regard to music performance copyrights.
Copyright holders are allowed to waive their rights and permit their works to be used freely by the public. The copyright laws are designed to protect the rights of copyright holders, particularly those who make a living from the use of their copyrighted works. It is solely up to the copyright holder to enforce or not enforce his/her/its copyright. If others infringe on a copyright, it is up to the copyright holder to seek damages. No one is forcing him or her to retain and protect a copyright.
If I create a work, I can choose to state: “Permission is granted to anyone and everyone in the known universe to freely copy, store, distribute, translate, arrange, create derivative works, publicly display, hire, transmit, and perform this work in any known or yet-to-be-known manner.” Copyright holders can use such language (or similar) if they want to convey that they are waiving all of their rights by granting such permission.
Now if I were to grant permission such as this and then I tried to seek damages after the fact, such a written statement could be used as evidence of waiving one’s rights and granting such permission. Interestingly, although it’s a big business, IBM placed a large amount of software code into the public domain in 2004.
When I speak of licensing, however, I’m not talking of a “public license” in the sense of open source materials. When I speak of public performance rights (for example), it pertains to somebody wanting to use copyrighted material (such as music); a business such as a dance club (for example) would legally have to have a license for this public performance of recorded music. If I want to create a new audio recording of somebody’s copyrighted music, I have to obtain a mechanical license. If I’m using somebody’s copyrighted music in a film, I have to have a synchronization license.
Intellectual property can be a very complicated matter, and I worked professionally in copyright administration for years. Every workday involved countless battles, which *almost* prepared me for a career in education.
The point about the public domain issue is that you have to first assert copyright to waive your rights under it. That is what NGA and CCSSO did under their license, aside from the stipulation that re-use under their public license must “support the CCSSI.” Everyone has permission to publish and distribute the standards in whole or part, as long as you give them credit and “support the CCSSI.”
Of course, it is always possible that the bigger fish wins any lawsuit because they have money, but NGA and CCSSO’s public license puts them in a much, much weaker position than they would be under regular copyright law.
Finally, even if they suddenly become very aggressive in asserting what constitutes “supporting the CCSSI,” in the end there is NOTHING they could do to prevent anyone from saying “my standards are the Common Core standards with the following revisions…”
Joe, You brought up patents. Here is a little known patent for a software program that is being used in many states to churn out a “growth” measure for teachers per federal regulations for teacher evaluation, in this case free of face-to-face human judgments. It is US patent 8696365 B1 dated April 15, 2014 for a “System for defining, tracking, and analyzing student growth over time,” One of the inventors is a school superintendent in Ohio whose business on the side is Align, Assess, Achieve, LLC. This software is now marketed as part of McGraw Hill offerings in education. The patent citations for this system (in development with patent protections since 2012) refer to its use in Austin, Texas; Charlotte-Mecklenburg, NC; and the states of Colorado, Georgia, Louisiana, New York, Rhode Island, and Delaware among others.
Laura, I didn’t know about that, and it is scary to think about what they might try to do with that.
Tom, that’s a good point about public domain with regard to new works in particular. I notice that CC0 has a rather widespread presence online, and I do detect some subtle anti-copyright tones in their literature. They are conflating aspects of public domain and licensing either through a lack of knowledge or perhaps deliberately.
The two general aspects of PD include 1) works that are no longer under copyright due to age, and 2) works placed into PD by the copyright holder. (Of course there is more to PD, but those are key points.) In both cases a copyright no longer exists.
Creating a “public license” by placing one’s work in the public domain, while a nice concept, is not legally accurate. If I grant permission to the public to use my work, that doesn’t mean that I have surrendered my copyright, and it doesn’t make the work PD with regard to copyright. On the other hand, I cannot technically “license” a work to anyone (public or private) if I have already placed it in the PD, and thus surrendered my copyright entirely.
Aside from requiring a citation credit, here’s what NGA and CCSSO has done legally:
They’ve granted permission to the user (private or public) to use their copyrighted work; that constitutes a license, and a license can be revoked with or without notice. Granting permission to the public to use a copyrighted work does not make it a public domain work with regard to copyright. So they are still in control of their materials, and they may assert their rights whenever they choose.
And as Mercedes Schneider mentioned previously, they could sell it. Hopefully that would bring up antitrust issues, but I’m not sure about that aspect.
Hi Joe,
I don’t understand why you say a license can be revoked at any time without notification. If that was the case, why would there be any point in having one?
Hi Tom. In the case of a formal licensing contract, there would be terms for the start and end dates. In that case, it would depend on the terms of the contract itself with regard to cancellation prior to the end date.
The NGA and CCSSO are currently granting permission under the written terms of the Common Core website. However, without a signed license agreement with the end user, the copyright holder can choose at any time to no longer grant permission for the work to be used. Under this condition, a notice wouldn’t be required unless the copyright holder wanted to enforce these rights.
Unless the Memorandum of Understanding contains specific terms with regard to copyright clearance, there is no signed license agreement.
Hi Joe,
But then you are arguing that the entire basis of use of pretty much all software licensing is invalid, since the end user rarely signs a license and particularly does not sign licenses for all the separately owned dependencies of the software.
For that matter, all Creative Commons licensing for open access would have no real weight, nor would any other statement granting permission for non-commercial or educational use, nor, for that matter, is it clear why committing a work to the public domain would be irrevocable.
Tom, most copyrighted software does have a license agreement to which the user must click “agree” before it will install. It counts legally.
There is also an issue with conflating “public domain” and “license,” which Creative Commons does. “Permission” to use a work is often granted in the form of a “license,” but that is not always the case. First, CC0 is conflating “public domain” with “license” by implying that PD constitutes a type of license (or “public license” to use their term). Second, CC0 is conflating permission being granted to the public by the copyright holder with placing the work in the PD.*
*This can be further complicated by people thinking something is PD if it is made available to the public or is in a public space. For copyright purposes, PD means there is no copyright for the work.
If a work is a public domain work (meaning it has no copyright), it cannot be “licensed” to anybody. People may use the work without seeking permission because there is no copyright.
By making CCSS available to the public and granting “permission” to use it, the NGA and CCSSO still retains the copyright, which means they still own and control it. (To put this in concrete terms, suppose you give me permission to use your car. You still own it, and you can change your mind about continuing to grant me permission to use it.)
Some software requires a clickthrough, some doesn’t but the licenses are still valid and binding. If you install Ubuntu Linux, you’re installing hundreds or thousands of separate open source software products with different copyright holders (or in many cases, poorly documented copyright). If the open source licenses permitting the use and redistribution of the software could be retracted at any point, they whole system wouldn’t work. Essentially every software company in the world uses open source software on the premise that non-clickthrough licensing is binding.
I confused the matter by bringing CC0 into the explanation, but I really just meant to point out that most open source software and open content advocates and users consider putting work into the public domain to be problematic and less desirable than an open license under copyright. That is the mainstream consensus in those communities.
To use your car metaphor. If you voluntarily give me your car with a signed (by you) statement allowing me to drive it within the state of Rhode Island indefinitely, and then call the police to have me arrested six months later for theft, I don’t think you have a strong case.
Any state is free to revise the copyrighted CC standards. They are also free to withdraw from PARCC or SBAC testing (as many have). And they are free to write their own tests to match their revised standards. The copyright protection is moot as Arne will revoke their NCLB waiver for being out of compliance. So any rogue state will simply be punished by force of federal ESEA law. In two years when Arne is gone, its anybody’s guess as to the level of enforcement. The inertia of the system may be enough to hold thing together until the next set of snake oil salespeople come along. In the best case scenario, widespread parent opt-outs will bring an end to this sooner rather than later.
Alabama revised the CCSS, renaming as College Career Readiness Standards (CCRS). Beginning last week and going through December, the AL State Dept of Ed is requesting feedback from the public for the ELA and Math standards for each grade level, e.g., week of Oct 6=Kindergarten; week of Oct 13= 1st grade, etc. On the ALSDE website, any individual can complete the online feedback form for one or more of the standards. Not sure how the suggestions for revision will be used. May just be to appease opposition, but at least it is opening the door to discussion and will encourage parents who have voiced concerns about the standards to read each standard and provide input. Several members of the AL state legislature have tried multiple times to repeal the CCRS but with no success. According the the state superintendent, schools and teachers have the authority to use their professional judgement in regards to the curriculum and instructional strategies for implementing the standards…yes, state standards, but no state required curriculum. AL withdrew from PARCC several years ago. Did AL get around the possible copyright issue by revising early on and continuing to revise?
Who is writing the AL assessments that test for proficiency on the AL standards?
Well, I guess this answers our question… Separate copyrights are registered with the US Copyright Office for Common Core.
————–
Full Title Copyright Number Date
Common Core State Standards for English Language Arts. TX0007194761 2010
Common Core State Standards for Mathematics. TX0007194755 2010
Description:
Print material.
Copyright Claimant:
National Governors Association Center for Best Practices.
Council of Chief State School Officers.
Rights and Permissions: Hugh Webster, Webster, Chamberlain, and Bean LLP
—————-
There are also countless publications and assessments pertaining to education with “Common Core” in the title. I searched by “Common Core,” “Common Core Standards,” and “Common Core State Standards.”
Also, a search of the US Patent and Trademark Office also turned up 38 varied Service/Trademark listings for “Common Core.” Only 10 of the listings were assigned registration numbers (meaning they had been approved by the examining attorney and passed “publication for opposition” in the USPTO’s Official Gazette).
One particular listing that caught my eye was a service mark application (serial # 85241268) from Common Core, Inc., who was still listed as the *applicant* (which means the are not yet registered). It was filed 2/14/2011, with a “first use” and “first use in commerce” claims of Aug. 19, 2010.
Goods and Services
IC 035. US 100 101 102. G & S: public advocacy to promote a comprehensive liberal arts curriculum. FIRST USE: 20100819. FIRST USE IN COMMERCE: 20100819
IC 041. US 100 101 107. G & S: educational services, namely, research in the field of education, curriculum development for educators. FIRST USE: 20100819. FIRST USE IN COMMERCE: 20100819
Note that Common Core Inc. is not only a different organization, but its use of “Common Core” precedes the CCSSI, although I guess they didn’t use it commercially until 2010.
Tom Hoffman. Here is a backstory.
In December 2009, the Bill and Melinda Gates Foundation enabled the transfer of initial work on an ELA curriculum, started by the National Governor’s Association and Council of Chief State School Officers, through a grant in excess of $550,000 to a non-profit organization that happens to have the name Common Core (Gates Foundation, 2009).
Common Core is a non-profit organization operating inde-pendently since 2007 with no formal ties to the CCSS initiative. It advocates content-rich education in the discipline-specific tradition of studies in the liberal arts and sciences (e.g., study original texts and works of art; not social studies but history, geography, civics).
The “Curriculum Maps” produced by Common Core are units of ELA instruction that ensure coverage of the CCSS year-by-year, with art and music included in twelve units and planned for most units. The units became available free of charge on the Internet in August 2010. The website had received one million visits by February 2011.
Some of the writers worked on Achieve’s American Diploma Project, the forerunner of the CCSS initiative. Common Core now markets a whole line of ptoducts in an online “store.”
Other writers of the Common Core ELA Curriculum Maps were recruited from the decade-old Core Knowledge® curriculum of E. D. Hirsch. Hirsch is probably best known as the proponent of education for “cultural literacy,” a national curriculum for K-8.
Hirsch’s philosophy of education, like that of Common Core, is grounded in a critique of John Dewey’s progressive thought and of the P21 initiative. Like the Gates-funded Common Core program, Hirsch’s Core Knowledge® program includes units that give attention to art and music.
A convergence of interests is reflected in the fact that Hirsch has endorsed the CCSS, made his K-8 curriculum framework available on the Internet at no charge, and changed the rhetoric of Core Knowledge® to accommodate the CCSS aims of education for college and career readiness.
Good find Tom! It’s interesting to read all the Common Core names when on a search of trademarks at the USPTO… “Stop Common Core” was an interesting one…
Laura, Wow! Thanks for the backstory info.
Perception is everyhing – Something that was traditionaly done state by state, by committees of educators, professors, experts in particular subjects or organizations such as a consortium of science teachers – now has a trademark?
Posted too soon – traditionally…now has a copyright ? hey … it might as well be trademark with where they want to go with it.
This idea that standards have not “traditionally” been copyrighted is just incorrect. Of course they’ve always been copyrighted. For example: “Copyright 1997 Massachusetts Department of Education.
Permission is hereby granted to copy any or all parts
of this document for non-commercial educational purposes.
Please credit the Massachusetts Department of Education. ” (http://www.doe.mass.edu/frameworks/hss/1997/full.pdf).
Note that Massachusetts license is *more* restrictive than the public license of the Common Core standards (because it does not allow commercial redistribution, i.e., technically this wouldn’t allow you to include these in your textbooks, which is kind of ridiculous).
Here is a link to a “freebie” at Teacher Created Materials. It is about Bill Gates: Humanitarian.http://www.classroomzoom.com/lessons/13549/differentiated-nonfiction-reading-bill-gates-inventor-and-humanitarian?utm_campaign=cz20141012&utm_source=cz&utm_medium=em