Is a school test the teacher's IP?

[royh]

State: Pennsylvania

Five months ago, my daughter used her cell phone to take a picture of a test that was returned to her for use as a study aid. Her teacher found out about this today.

Among other claims, my daughter's teacher contends that she violated his intellectual property rights by photographing the test. Wouldn't the test fall under the category of "work for hire"? Am I wrong to call BS on his claim? Should I expect a summons to civil court?

Please note that I am not looking for moralizing here. We know and have told her that taking pictures of the test was not the wisest move. I am also not looking to hit a jackpot. (Well, not unless you know of something....)

 

[ecmst12]

It's either the property of the teacher or the school. It's certainly not ok for her to distribute it in either case.

 

[OHRoadwarrior]

It should fall under fair use laws for students if that is all she uses it for.

 

[ecmst12]

For the student to copy it without permission? No way. Especially since she was probably engaging in academic dishonesty by distributing it to others (else she wouldn't be in so much trouble). If the teacher intended for her to be able to copy it and take it home, he would have just let her take it home in the first place. Most teachers do use the same tests or at least many of the same questions from year to year, so there is a need to keep it secure.

 

[royh]

For the student to copy it without permission? No way. Especially since she was probably engaging in academic dishonesty by distributing it to others (else she wouldn't be in so much trouble). If the teacher intended for her to be able to copy it and take it home, he would have just let her take it home in the first place. Most teachers do use the same tests or at least many of the same questions from year to year, so there is a need to keep it secure.

A little background: The teacher returned the old test to every student in his class. He made it clear that they could copy from the test and use these notes as a study aid. In an email to my wife, he stated that he does this in an effort to help students "Not make the same mistakes twice". His only stipulation was that the papers he handed out should be returned to him by the end of class. So, he gave his class permission to copy the test and he removed the question of "academic dishonesty" by giving the test to everyone.

Thank you for your answer regarding ownership of the test.

 

[TigerD]

Interesting question - if the test is the teacher's IP, then aren't the answers the student's IP. Since the teacher specifically gave the test to the students with the intention that they modify his IP by writing answers down on it, then couldn't the test actually the students IP with an implied derivative works license.

DC

 

[LdiJ]

A little background: The teacher returned the old test to every student in his class. He made it clear that they could copy from the test and use these notes as a study aid. In an email to my wife, he stated that he does this in an effort to help students "Not make the same mistakes twice". His only stipulation was that the papers he handed out should be returned to him by the end of class. So, he gave his class permission to copy the test and he removed the question of "academic dishonesty" by giving the test to everyone.

Thank you for your answer regarding ownership of the test.

Interesting...so if your daughter had copied the entire test by hand instead of using her phone that would have been perfectly acceptable to the teacher, but since your daughter used technology to copy it instead, that's a huge problem with the teacher?

There is some logic missing there...

 

[royh]

Interesting...so if your daughter had copied the entire test by hand instead of using her phone that would have been perfectly acceptable to the teacher, but since your daughter used technology to copy it instead, that's a huge problem with the teacher?

Correct. Also, if every student in the class copied four questions by hand and took the notes home to study, they could recreate the test in its entirety and share it amongst themselves.

 

[LdiJ]

Correct. Also, if every student in the class copied four questions by hand and took the notes home to study, they could recreate the test in its entirety and share it amongst themselves.

In that case, I would be having another talk with the teacher about those specific points, and if the teacher was still raising a stink, perhaps a talk with the teacher and the principal.

 

[Zigner]

This happened 5 months ago and the teacher JUST found out about it? If kiddo wasn't distributing copies of the test (the photo(s)) then how did the teacher find out about it?

 

[royh]

This happened 5 months ago and the teacher JUST found out about it? If kiddo wasn't distributing copies of the test (the photo(s)) then how did the teacher find out about it?

My daughter and another student were discussing the fact that she had done this with the midterm study aid and the teacher overheard their conversation.

 

[justalayman]

stop playing around with the teacher and speak with the principal.



To determine if the test is the teacher's IP one would have to research more than what has been presented here. It could be the teacher's IP, the school's IP, or somebody else's.

Permission was given to actually copy the test. From what has been presented, it was only implied it was by copying it in the students own hand. Unless the teacher made it explicit it was only by the students own hand, what happened is not actually improper.

If the student distributed the test to others, such as in an academic cheat scheme, then while the copying itself would not be improper, the distribution would be.

 

[quincy]

Interesting question - if the test is the teacher's IP, then aren't the answers the student's IP. Since the teacher specifically gave the test to the students with the intention that they modify his IP by writing answers down on it, then couldn't the test actually the students IP with an implied derivative works license.

DC

For a derivative to be made without infringing on the copyright holder's rights, there (generally) needs to be a written license issued by the copyright holder that explicitly transfers to another the right to make a derivative.

While the students would own the copyright in what they wrote on the test if the answers were in essay-form (and not merely multiple choice A, B, Cs or fill in the dots or check marks, which would not be copyrightable), the teacher (or school or whoever or whatever) would own the test questions.

Neither the students nor the teacher could copy the completed tests in their entirety without infringing on the rights of the other. But the teacher would be able to use blank tests and the same test questions in future classes - and the students could use their own answers again (if they find a use for them).

Photographing a completed test (or a blank test) could be infringement (if the test was original and creative enough to be copyrightable), but taking notes based on the test questions, for use as a study aid, would (probably) be considered a fair use of the material if the notes were for a student's personal use only.

I suspect the teacher fears the photographed test will be accessed during the next test by the student or students, hence his IP argument. But the teacher is not going to sue any student over this. What the teacher will probably do is ban all cell phones from the classroom, to prevent the texting of test answers by one student to another and to prevent the accessing of test answers during the test taking.

 

[TigerD]

Thanks Quincy.

 

[quincy]

You're welcome, DC.