The education secretary, Gillian Keegan wrote very recently to schools advising them that parents and carers must be given access to RSHE teaching materials. In particular, she asserted that sharing RSHE materials subject to third-party copyright with parents is allowed, and that any contractual term to the contrary between the materials’ provider and the school is ‘void and unenforceable’.
This is potentially a controversial topic. The government is expressing a strong policy view. Schools are concerned about traversing a perceived legal minefield. Providers of RSHE materials will be anxious not to have their intellectual property weakened. And parents and carers will want to know whether they can participate in this vital part of their children’s education on an informed basis.
Primarily, the matter concerns avoidance of copyright infringement and breach of contract. As in all legal matters, the circumstances of each case may be nuanced so it is always advisable to seek advice.
But is the education secretary right? RSHE materials will likely attract various forms of copyright protection, whether as literary or artistic works, as films or recordings. Unless a defence applies, copying without permission from the copyright owner would be an infringement. Infringement may arise through copying the whole or a substantial part of a work. It can also arise from performing the work in public or communicating it by electronic means to the public. To avoid liability, the consent of the copyright owner is required or there must be a suitable, legal defence.
Additionally, a contractual term where a school promises to share materials in a certain way could potentially be breached if not complied with. The remedies for both types of action could lead to being prevented from using the material and having to pay compensation to the provider.
Happily, a considerable amount of material may already be covered by blanket copyright licences that a school already has and this should be investigated. Where not already covered, the law does allow proportionate copying and communication of works by educational establishments; however, care must be taken to restrict access to it so that it is not made available to those not entitled to access it.
Statute provides that acts otherwise infringing copyright are excused as ‘fair dealing’ if, for example, a work is used for the purposes of criticism or review, provided that sufficient acknowledgment is given and the copying/communication is proportionate. Sharing the material with parents could potentially be review. Any contractual term limiting or preventing this is deemed unenforceable under statute.
A further form of fair dealing is use by an educational establishment for giving or receiving instruction. Gaining parental input arguably might be considered a required approval process as part of giving instruction. This might be a defence to infringement and again cannot be contracted out of.
The education secretary suggests that sharing RSHE materials with parents is in the public interest. In particular circumstances, copyright can be infringed if necessary to raise an important matter of public interest. However, the interests of an owner of intellectual property rights have to be balanced with that. There may be a difference between government policy and public interest. There may well be strong public interest here.
Ambiguity could perhaps be removed by making the proportionate and acknowledged sharing of RSHE materials with parents a mandatory part of the secretary of state’s guidance so that it could be enforced as a statutory duty. (At present, giving such guidance is mandatory but not all the guidance given is compulsory – though school governors must have strong regard to it.) If a statutory duty, then there would be a further statutory defence to copyright infringement and any contractual term attempting to override the duty would likely be void.
Key considerations for schools:
- Check whether you already have a licence covering the material and allowing sharing with parents.
- Give the copyright owner sufficient acknowledgment.
- Copy only what is absolutely necessary.
- If access must be electronic for practical reasons, make it on demand via a secure platform only for the parents of children concerned. Make access restricted rather than posting on a website or platform with wider public access. Prevent downloading.
- Avoid agreeing contract terms which deny sharing with parents.
- Try, if possible, to share material in person with parents without copying it or communicating it electronically.
Key considerations for providers:
- Make providing access to parents a positive, commercial upside of your product – the commercial impact of parents accessing what a child is using is likely very low in terms of lost profits.
- If a child does not get to use the material, the parent has no interest in seeing it.
- Allowing controlled access by parents could encourage schools to use your materials.
- Draft contractual terms so that materials can be shared with the parents of children using them provided that:
- you are acknowledged as the copyright owner;
- the access is proportionate, perhaps controlled by way of a restricted access platform not allowing downloading.