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.”