An Administrator's Guide to California Private School Law

Chapter 20 - Intellectual Property

 Reproduction of a work in legislative or judicial proceedings or reports;  Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported. 2590

If a school questions whether its use falls within the fair use doctrine, it should consult an attorney experienced in intellectual property issues. If it is not likely that the school’s usage is fair use, counsel may recommend that the school obtain permission or a license to use the copyrighted material from the copyright owner. The school may also consider contracting for an annual public performance license that would cover a catalogue of works. 2591 If permission is not granted or practical, to avoid legal liability, schools should avoid using copyrighted material unless use would clearly be considered fair use. Copyrights are also subject to the “educational exemption.” To qualify for the “educational exemption” a school must use a copyrighted work as part of the “systematic course of instruction.” 2592 The work must directly involve instructional activities in a classroom and directly apply to the purpose of the course. 2593 If a movie, song, or other copyrighted material does not fall within the educational exemption, the school would need to obtain permission or a license to use the work. For example, the educational exemption does not apply to “performances in an auditorium or stadium during a school assembly, graduation ceremony, class play or sporting event where the audience is not confined to members of a particular class.” 2594 Therefore, the school must obtain permission to show a movie on “movie night.” C. T RADE S ECRETS Trade secrets are information that entities keep secret for competitive reasons. California has adopted the Uniform Trade Secrets Act (“UTSA”). 2595 Under the UTSA, a trade secret is “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” 2596 The UTSA allows the owners of trade secrets to seek injunctions for actual or threatened misappropriation of their trade secrets 2597 and damages for actual loss due to misappropriation of their trade secrets. 2598 Under the UTSA, client lists and parent directories may be considered trade secrets and schools can likely bring suits to prevent the misappropriation of such information, or claim damages if they have suffered loss due to the misappropriation of the information. 2599 Schools can restrict employees from utilizing, stealing, or disclosing their trade secrets, such as fundraising donor lists, client lists, and other data. Schools can, and should, protect this information via confidentiality or non-disclosure agreements with their employees. These agreements must be specific about the protected information at issue and must provide the employees with notice as to why they have been given access to the information and how the information is protected from misuse. Legal counsel with experience in intellectual property and proprietary matters should be consulted for specific guidance as to the steps schools should take to protect their trade secrets.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 617