School District and Campus Web Sites: More than Meets the Eye

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1 School District and Campus Web Sites: More than Meets the Eye A surprising number of legal and policy issues are raised in the creation and maintenance of school district Web sites. Whether your school district is creating a Web presence for the first time or attempting now, years after the district launched its first site, to establish guidelines for the district s online activities, you will want to consider the following legal issues related to district and campus Web sites. Required Content Texas law requires school districts that maintain Web sites to publish at least a dozen items on the school district s site. Such items include the district and campus annual report cards, notice of all school board meetings, financial disclosure statements from local government officials, a summary of each year s proposed budget and any proposed increase in the tax rate, employment policies, and more. The list of required postings continues to expand with each legislative session. A full list is maintained at TASB Policy CQA(LEGAL). Borrowed Content Many people wrongly assume that content published on the Web is freely available for public use, sometimes referred to as the public domain. In fact, online materials including graphics, videos, photographs, articles, and music are protected by the same copyright and trademark laws as content published in fixed media, like books and magazines. School districts need to understand this for two reasons. First, districts need to guard against misappropriating Web content for use on the district s Web sites. Second, districts may want to take steps to protect district-owned content when it is published online. The number of ways copyright and trademark laws can be violated in and around schools is almost unlimited. For example: a teacher with a classroom Web site uploads the complete text of an article from an outside source for students to view online; a student creating his own site as part of a class assignment chooses to incorporate music from a current artist; or the school district Web master builds the district s athletics page using a slick logo from a university Web site with a similar mascot. Even with proper attribution, borrowing these sorts of protected works without permission can be against the law. To prevent school district employees and students from illegally copying content from elsewhere on the Web, the district needs to establish appropriate policies and training about online property rights. The district should have an acceptable use policy that clearly prohibits uploading content to district sites in violation of a third party s copyright or trademark. See TASB Policies CQ(LEGAL). Having such a prohibition in policy may help the district claim the protection of the Digital Millennium Copyright Act, 17 U.S.C. 512, should a violation occur. The Act protects service providers, as defined by 17 U.S.C. 512(k), from liability for copyright infringement by users. Qualifying districts must not have actual knowledge that the work or activity related to the work is infringing on a copyright and must act immediately to remove the information once the district learns of the infringement. The district must also not receive a financial benefit stemming from the infringing activity and must designate an agent to receive notification of a claimed infringement through the service and the district Web site. 17 U.S.C. 512(c).

2 Fair Use In addition to having appropriate policies, districts need to provide training to employees and students about how to: 1) avoid using content protected by copyright or trademark; 2) seek permission to use protected materials; or 3) work within the boundaries of fair use. An individual may use copyrighted material in a reasonable manner without permission if the use qualifies as fair use. Fair use may include use for purposes of criticism, comment, teaching, or research. When determining whether use qualifies as fair use, courts will consider: the purpose and character of the use, including whether the use is for nonprofit educational purposes; the nature of the work; the amount and importance of the portion used in relation to the work as a whole; and the effect of the use upon the potential market for or value of the work. 17 U.S.C The historical note published with 17 U.S.C. 107 provides fair use guidelines for school employees that may be helpful in deciding what will be fair use online. The Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions and Guidelines for Educational Uses of Music provide guidance for use of copyrighted print material and music. For example, the music guidelines suggest that the use of a song in a presentation should not exceed 10 percent of the whole work. Guidelines for Educational Uses of Music, 17 U.S.C. 107 Note. The guidelines for classroom copying and the guidelines for music use establish a minimum guaranteed fair use, not a maximum. Any determination regarding whether a use that exceeds the guidelines is a fair use rests with an appropriate court of law. Defending District Copyrights and Trademarks At times, the district may have developed original content that is published online that the district wants to defend against misappropriation. For example, a campus may have a school song for which the district owns the copyright because the song was written for the school by an employee in the scope of employment or was given as a gift to the school from a proud alumna. If the school song plays when the campus Web site is opened, the song is nevertheless the property of the school district; it does not enter the public domain simply because a recording of the song can be heard online. Similarly, the district may have created or commissioned its own logo featuring its mascot. If so, the district may want to defend the district s unique mark against commercial use by others by asserting trademark protection. For example, some school districts discover local vendors selling t-shirts using the district s logo without permission. Other districts have discovered mock or unofficial school Web sites that use the district s logo or other marks to make the fake, often taunting or critical, sites look more realistic. Even if the district has not gone through the legal hoops to register a copyright or trademark, the district may still have legal grounds to challenge unauthorized uses of the district s intellectual property. Original works created as tangible types of expression, such as books, music, motion pictures and other audiovisual works, and sound recordings, may be granted federal copyright protection. 17 U.S.C The copyright owner controls the ability to copy the work as well as the public use and distribution of the work. 17 U.S.C The grant of the copyright is automatic; the author need not register the work for it to be protected. 17 U.S.C. 408(a). However, the copyright owner may not sue to protect the copyright until the work is registered. 17 U.S.C. 411(a).

3 Similarly, trademarks, including symbols or other identifying marks, are protected by common law, state law, and the federal Lanham Act. 15 U.S.C. 1051, et seq. If a district s mark, like a text treatment for the district s name or the logo for its mascot, qualifies for trademark protection, the district can prevent others from using the mark for commercial gain without permission. As with copyright, registration is not required, but it does provide a number of legal benefits. Personally Identifiable Student Information The Family Educational Rights and Privacy Act (FERPA) protects most personally identifiable information in students education records from public disclosure. 20 U.S.C. 1232g; 34 C.F.R. Part 99. If, however, school districts follow certain procedures, districts can share students directory information on the Web without further parental consent. Directory information is information in education records that would not generally be considered harmful or an invasion of privacy to disclose. Examples of directory information that might be posted on a school district Web site include a child s name, age, participation in sports or other activities, awards and honors, and photographs. 20 U.S.C. 1232g(a)(5)(A). For directory information to be disclosed, including being posted online, parents must be informed of what categories of information will be considered directory information and be given the opportunity to refuse to release any or all of the categories. 34 C.F.R ,.37. For example, if a district informs parents that students names and sports participation will be directory information, and an athlete s parents do not object, the district can post basic information about the athlete s participation online. If, however, the district does not indicate that photographs will be directory information, the district will need to seek specific parental consent from the athlete s parents to post a photograph of the athlete online. Texas law provides additional considerations for districts desiring to post audio or video of students on the Web. Before a district employee may make or authorize the making of a video or audio recording of a child, the district must obtain the written consent of the child s parent. Tex. Educ. Code (a)(2). The district is not required to obtain consent if the recording is made for purposes of safety, cocurricular or extracurricular activities, classroom instruction, or for media coverage of the school. Tex. Educ. Code (b). Even if one of these exceptions applies, a district should obtain parental consent prior to posting a video with images of district students on the Web in order to comply with FERPA. Student Art and Other Works As discussed above, original works, including writings, photos, videos, and artwork, are inherently protected by copyright. When such works are created by school district employees in the course of their employment on behalf of the district, the district (not the author) owns the copyright. Students, however, are not school district employees, and they themselves hold the copyright in their own works, even those created at school. Consequently, before the district can use student art to decorate its home page or publish the winner of the creative writing contest online, the district needs to seek permission from the author (or his or her parents) to display the work. Many districts seek general permission to use student works with a single, broadly worded permission slip at the beginning of the year. In the alternative, the district could seek specific permission for each publication.

4 Access for Disabled Users As more essential information is published online, an emerging issue for local governments is the accessibility of Web content to citizens whose disabilities inhibit their use of the Web. Through the use of certain design features, Web content can be displayed in ways that are more likely to be accessible to disabled individuals. For instance, embedding textual descriptions of photographs allows visually impaired individuals using screen readers to know what is represented on a page. Other design features benefit users of other assistive technology, like voice recognition software. Section 508 of the federal Rehabilitation Act requires federal agencies to ensure that, to the extent possible, electronic information is accessible to federal employees and members of the public who are individuals with disabilities. 29 U.S.C. 794d. Section 508 does not apply to school districts, nor does its Texas counterpart, Texas Government Code section 2054, Subchapter M. School districts are subject to the Americans with Disabilities Act (ADA), however. The ADA requires that school districts provide equal access to programs and services, unless doing so would fundamentally alter the nature of the program or service or present an undue burden. The Civil Rights Division of the Department of Justice suggests that school districts and other local governments can meet their obligation to provide equal access by voluntarily creating Web sites with design features that enhance the sites accessibility. For now, districts that lack accessible Web sites can meet their legal obligations through other means, like a staffed telephone information line; however, in light of the 24-hour accessibility of the Web, the sufficiency of telephone access is increasingly called into question. For more information, see The Department of Justice amended the Department s Title II regulation of the ADA, 28 CFR Part 35, effective March 15, No specific changes were made to the regulations with regard to website accessibility under the ADA. The Department has consistently interpreted the ADA to cover websites that are operated by public entities and stated that such sites must provide their services in an accessible manner or provide an accessible alternative to the website that is available 24 hours a day, seven days a week. 28 CFR Part 35, Appendix A. However, Appendix A states that the Department expects to engage in rulemaking relating to website accessibility under the ADA in the near future. Web 2.0 Districts that create Web sites with interactive functions, such as public bulletin boards, comments fields, wikis, chat or similar capabilities, may find that contributors use the district s Web site for illegal or inappropriate purposes, like making bullying or harassing statements or posting links to inappropriate content. If the district s Web site is going to allow interactivity, the district will want to establish terms for use of its Web site. For instance, the district may want to indicate that it reserves the right to remove comments that are irrelevant, defamatory, harassing, or abusive; an invasion of another person s privacy; an advertisement for a product or service; electioneering; a violation of copyright laws; or otherwise a violation of law or district policy. For security reasons, the district may also want to prohibit posting photos or links to other Web sites. A district s terms of use should also state that by posting to the district s Web site, the user agrees to allow the district to monitor the person s posts and share the posts online.

5 Federal law provides districts some protections from liability for such behavior by third party users. As discussed above, the Digital Millennium Copyright Act, 17 U.S.C. 512, protects service providers from liability for copyright infringement by users. In addition, the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230, protects service providers or users, such as districts that provide Web sites for others use, from being treated as a speaker or publisher of information provided by another information content provider. The CDA also protects service providers and users from liability for restricting in good faith access to information that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable or providing others the means to restrict that material. The CDA does not provide immunity for violations of certain criminal laws, intellectual property laws, or communication privacy laws, however. 47 U.S.C Policy Issues In addition to the specific policy issues mentioned above, districts should give consideration to establishing overall written guidance on Web site development for everyone in the district, including district and campus administrators, teachers, and students. School officials whose primary focus has been on the district s main Web site are often surprised to discover how many Web sites are actually being established and maintained in the name of the school district. Campuses and individual teachers seeking a convenient means of reaching parents and students online often take advantage of the Web s free tools for establishing an online presence, including Facebook. In order to consistently communicate the district s requirements and specifications for Web site creation, written guidelines should explain what laws and policies apply and whether individuals creating sites must seek approval in advance. Written guidelines are also the district s opportunity to make key disclaimers and decisions, like whether to permit advertising on district sites (including district sites hosted by other providers, like My Space or Facebook), what types of online pages or groups to permit, and what functionalities (like chat or gaming) should be allowed or disabled on district pages. Conclusion Parents and communities expect their school districts to be present online, providing access to essential information. With thoughtful planning, policy, and training, your district can meet the needs of your community while avoiding the legal pitfalls of establishing and maintaining school district Web sites. If you have further questions about the legal issues related to school district Web sites, please contact your school attorney or at This document is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the recipient to consult with the district s own attorney in order to apply these legal principles to specific fact situations.