A Published Legal Form Under Restrictive Copyright LicenseAccess 4 Learning’s data privacy terms for schools and vendors
A non-profit international trade group called Access 4 Learning publishes a form contract for school districts and service providers like e-learning platforms. The form adds terms to their existing contracts to comply with student privacy laws. The title page of the version I reviewed, Version 2.1, has these notices:
Authored by Members of the Student Data Privacy Consortium (SDPC) & Mark Williams, Fagen, Friedman & Fulfrost LLP
© Access 4 Learning (A4L) Community. All Rights Reserved.
This document may only be used by A4L Community members and may not be altered in any substantive way.
The United States has long had some federal-level laws at regulating privacy of child and student data, but we are now seeing many new laws from individual states. It’s hard to keep track of all these new laws, and to write contract terms that cover all of them. Sharing work on a single set of those terms makes sense.
Authorship
Authored by Members of the Student Data Privacy Consortium (SDPC) & Mark Williams, Fagen, Friedman & Fulfrost LLP
The Student Data Privacy Consortium is a “Special Interest Group” under A4L focused more specifically on data privacy. I haven’t dug in too far, but I gather this is a kind of working group within A4L. A4L is international, but form deals with US-specific legal concerns.
Fagen is a law firm with several offices, mostly in California. They focus on public education.
The use of “Authored by” is notable here. Under copyright law, the default owner of a copyrightable work is its author. But that default can be overridden, and ownership can also change over time.
I’m not aware of any rule that says you have to note the author on a copyrighted document. So I’d take this authorship line as working more like a byline, to give credit.
Copyright Notice
© Access 4 Learning (A4L) Community. All Rights Reserved.
I’m not sure this claim is terribly clear. The name of the organization is plain enough, but the claim here is the A4L “Community”, not just A4L the org itself, holds copyright.
A4L seems to use “Community”, always capitalized, specifically to refer to its dues-paying membership. So perhaps this copyright notice is meant to say that the various authors, who are members of the Community, retain their copyrights. Or perhaps the intent was to centralize ownership of copyright in the A4L org itself. I’m not sure.
If the idea was to centralized copyright, I wonder whether or how the consortium and the law firm documented assignment of copyright in their work to the nonprofit.
In any case, I applaud the law firm in particular for agreeing to take on this project. Many, many firms avoid working on forms their clients will publish, especially forms that help would-be clients meet their needs without engaging their own lawyers.
License
This document may only be used by A4L Community members and may not be altered in any substantive way.
Again, A4L seems to use upper-case-C “Community” pretty consistently to refer only to its membership. So we’re looking at a club good: using it doesn’t diminish anyone else’s ability to do the same, but use is limited to only those who pay.
Two thoughts come to mind.
First, I wonder whether this is meant to require that both sides be A4L members, or only one side. Could a school district paying for membership propose sign form to a vendor that’s not?
Second, I’d read this language to prevent even paying members from making meaningful changes to the “standard” form. That would be a rather aggressive approach to standardization.
Blue Oak Council, the open licensing nonprofit I cofounded, allows edits to our model software license, so long as edited versions don’t use the “Blue Oak” name. We’ve registered “Blue Oak” as a trademark covering legal forms while Access 4 Learning doesn’t seem to have done so. Especially with these use terms coming directly after the copyright, I’m gathering A4L is using a primarily copyright-driven approach to maintaining the integrity of its form as a standard.
Your thoughts and feedback are always welcome by e-mail.