Every Student Succeeds Act

An Unlikely ESSA Provision: Warning on Copyright Piracy

By Sean Cavanagh — August 29, 2017 6 min read

The Every Student Succeeds Act covers a vast swath of federal education policy, from testing to teacher-training to turning around struggling schools. But language tucked into the 400-plus-page statute also has another, less-expected goal: informing students and parents about “the harms of copyright piracy.”

Wording that urges school officials and parents to explain the importance of preventing the illicit use of copyrighted material is found in three sections of the law, alongside more predictable school policy decrees on teaching and learning.

It turns out the language can be traced to the insertion of an amendment to the massive statute made at the urging of a coalition of film-, music-, and publishing-industry organizations, which have fought for years to establish stronger copyright protections.

The wording reflects the long-standing interest among those influential lobbies in preventing online files, images, and print and digital resources from being copied and shared without permission. Their worries extend to K-12 districts, where some industry officials see the copying as widespread among students and teachers in and outside of school.

An amendment to ESSA including the copyright-piracy language was introduced by Rep. Hakeem Jeffries, D-N.Y., and agreed to by a legislative committee on its way to being included in the Republican-led drafting of the law. Jeffries argued that the language would encourage parents and students to learn to respect the rules of intellectual property and protect the work of artists and other creators who do not want their work illicitly shared.

“In the classroom, children are currently taught that plagiarism is an ethical violation of academic honesty,” Jeffries said, according to a record of his remarks introducing the measure. “This amendment will hopefully facilitate the extension of this discussion into the digital era.”

Jeffries’ office declined requests for comment on his role in drafting the provision.

‘Very Powerful Lobby’

A number of observers cast doubts on whether the language was specific or prescriptive enough to have much of an impact on schools’ or students’ understanding of copyright one way or another. But even so, some education advocates say its inclusion demonstrates the ability of big industry groups to put their stamp on K-12 policy outside their immediate spheres of influence, when it serves their interests.

“It’s a very powerful lobby, and they were successful in getting it into the bill,” said Doug Levin, the president of the consulting organization EdTech Strategies. But “it feels a little like a crass attempt to effect a policy aim through schools.”

In one section of the law, a passage says that districts and schools “shall” provide training and materials focused on using technology effectively—and about the harms of copyright piracy.

Another reference says districts may use grants for professional development to help teachers with technology-based curriculum and instruction—including education about the harms of copyright piracy.

Organizations that pressed for the language suggest it was not aimed at blocking the sharing of education materials, such as open education resources, generally defined as materials that either live in the public domain or have been created on licenses that allow teachers and students to freely share and modify them.

A number of backers of open resources said they did not see any specific harm to the use of those classroom materials from the ESSA language. (And, in fact, language in other sections of the law specifically encourages the use of open materials.)

Cable Green, the director of open education for Creative Commons, an organization that issues open licenses, said his group favors educational efforts to explain the implications of both copyright and open licensing in schools.

But too often, copyright education is merely about “telling teachers and students that they shouldn’t illegally download a song or the latest Warner Brothers film,” Green said in an e-mail.

The film and music industries’ strategy ends up “raising a specter of infringement and piracy wherever they can, to feed a culture of fear around engaging in digital content,” he said.

References to “copyright piracy” appear in ESSA sections focused on technology and parent outreach.

Common Violation?

But representatives from the entertainment and publishing sectors say the ESSA language will encourage school officials to understand the rules around using and sharing print and online materials.

“We strongly believe in the importance of digital-citizenship education and specifically, the often-overlooked teaching of digital ethics,” said Brett Williams, the senior vice president of public affairs for CreativeFuture, a nonprofit organization that backed the language and represents hundreds of film, television, music and other groups, in an email.

For students, Williams said “knowing their rights and responsibilities as creators and consumers is an essential 21st-century skill.”

In introducing the amendment at a congressional hearing in February 2015, Jeffries specifically cited support from the Copyright Alliance, the Recording Industry Association of America, the National Music Publishers Association, the Songwriters Guild of America, the Authors Guild, and the Association of American Publishers, which, of all the organizations, plays the most direct role in K-12 policy and advocacy.

Education publishers share those industries’ belief in supporting copyright protections and setting parameters around “fair use” of those materials, said Jay Diskey, the executive director of the P-12 learning group of the Association of American Publishers.

The flouting of copyright policy is “unfortunately commonplace” in many districts, argued Diskey, and it has a real impact on the work of publishers. The most common violation is excessive copying of K-12 texts, though the behavior can extend to video, online, and other works, he said. Diskey said his organization hears of parents being given lists of supplies to pick up for school that include reams of blank paper students should bring with them, for the purposes of copying.

No Mandate

The ESSA piracy language doesn’t mandate school behavior or penalize schools, Diskey said, but is instead “purely educational” and meant to inform educators and students about “how they should handle trade works.”

There is value in introducing students to rules surrounding copyright, agreed Levin, a former executive director of the State Educational Technology Directors Association. But he also believes that K-12 schools are more aware of copyright and intellectual property than industry groups acknowledge.

The main thrust of the ESSA language, Levin speculated, is not designed to change behavior in school buildings at all, but to discourage illicit copying of music, movies, and games in home environments—which amounts to “much bigger business than educational publishing.” Practically speaking, Levin didn’t think there’s any way to enforce the ESSA language on copyright piracy, even if anyone wanted to. But that doesn’t mean it belongs in the law to begin with, he said.

Organizations worried about copyright transgressions have adopted other strategies to encourage the public and educators to take the issue seriously.

A variety of groups, for instance, supported the creation of iKeepSafe, a curriculum designed to explain copyright principles to K-12 audiences and others.

When students leaving K-12 systems lack knowledge about copyright rules and how to use print and online materials, they put themselves and their employers at risk, said Marsali Hancock, a former CEO of iKeepSafe, who helped launch the curriculum.

Many students today are “absolutely clueless about how to navigate their own rights as creators and use other people’s creative content,” Hancock said. Students and educators “need to understand what it takes to use digital content [and] thrive in a digital environment.”

A version of this article appeared in the August 30, 2017 edition of Education Week as An Unlikely ESSA Provision: Warning on Copyright Piracy

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