• While the demand for transparency of learning materials grows, one common objection to making curriculum more available is the possibility of copyright infringement.
• There are ways schools and districts can advance parent access to curriculum within the bounds of copyright law.

​In April 2025, Arkansas Governor Sarah Huckabee Sanders signed a bill that bolsters the state’s Freedom of Information Act by “prevent[ing] the abuse of copyright claims by public records custodians in public schools” and “guarantee[ing] access to school learning materials” to advance public school transparency and accountability. The bill also prohibits schools and districts from entering into agreements that restrict transparency.

Over the past few years, parents have asked for more transparency in curriculum, and states have responded. Policies that increase parents’ access to curriculum improve awareness of what’s being taught so they can be better partners in their children’s education or make different education choices if they aren’t satisfied.

However, as with all public policies, interests must be balanced. One common objection to making curriculum more available is the possibility of copyright infringement.

So, what role does copyright law play in this discussion of making curriculum more accessible?

A few basics

Copyright protections are based on the U.S. Constitution’s Patent and Copyright Clause in Article I, Section 8, Clause 8. This clause gives Congress the power to legislate in this area, which they did in The Copyright Act of 1976.

According to the copyright.gov website, “Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” Original works can be various things like books, movies, paintings, photographs, and more. This includes textbooks and curriculum content.

Copyright owners have some exclusive rights, including reproducing or distributing copies of the work, performing or displaying certain works, and authorizing others to exercise these exclusive rights. When someone takes one of these actions without the right to do so, they have infringed on copyright.

One exception to copyright protections is “fair use,” a legal doctrine and defense against a claim of copyright infringement that allows the “unlicensed use of copyright-protected works in certain circumstances.”

Section 107 of the Copyright Act says that uses like “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” may fall under the fair use doctrine.

This section also looks at four factors in evaluating whether something is fair use: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

Indeed, simply because material is copyrighted does not mean some form of curriculum transparency is off the table. If districts have questions about what could fall within fair use, they should consult with legal counsel.

Ideas for improving transparency alongside copyright law

Create policies that respect federal copyright law

Copyright law is governed by Title 17 of the U.S. Code, and while states can create their own copyright laws, they cannot violate the federal law in doing so. No new state law or state or local policy can give a school or district a right that goes against what is in federal statute.

Model policies for curriculum transparency bills recognize this. For example, model language from the Goldwater Institute and the Manhattan Institute explicitly states that the requirements in their policies should not violate copyright law. Policy recommendations from the Heritage Foundation say the same. The model legislation from Americans for Prosperity (the foundation for Arkansas’ recent bill) protects against the abuse of copyright claims, but does not say one can disregard copyright law.

A 2022 Utah bill introduced to increase parent access to curriculum through the use of a syllabus that outlines general information about curriculum states that the policy must fall within the “limits of the fair use under copyrighted law” and “nothing in this section requires the digital reproduction of portions of copies of copyrighted learning materials.” Thus, states should make sure a curriculum transparency policy does not violate copyright law, while also looking for new practices to share more.

Follow existing law on access to curriculum and transparency

Increasing access to learning materials can be accomplished in different ways and to varying degrees. Some states offer a general right to review or require certain curriculum information to be posted online before approval by the district. A good starting point is for district and school leaders to comply with what’s already in state law.

An important piece of Utah law says local boards must make the district’s curriculum readily accessible and available for parents to view. It also requires information on how to access it be given annually and posted on the district website. Certainly, publicly sharing information on the district website on how to access learning materials is far from copyright infringement. If local school boards in Utah are not yet meeting these requirements (especially posting on their websites basic instructions for how to access material), they need to do so to follow the law.

Host other curriculum details online to assist parents

Districts can go above statutory requirements to help parents understand what’s being taught without worrying about sharing copyrighted works. Districts or schools can host other useful details about curriculum including book/text titles, authors, citations, or links for curriculum approved by the district. Where applicable, these should be organized for each grade or subject to help parents in their search. Organized information should also be easily accessible, meaning not many clicks from the homepage.

To help in this effort, Sutherland Institute recently announced the Partners in Learning Certificate, which publicly recognizes districts whose websites meet certain criteria for making it easy for parents to find curriculum information. Nothing in this rubric requires that “curriculum information” be copyrighted works, but it does urge clear information that helps parents seek it out so they can learn more.

Seek legal counsel for questions about exceptions

Where there are specific questions about using or sharing copyrighted materials, local leaders should consult with legal counsel. Navigating fair use or seeking permissions from the copyright owner are choices that require informed legal advice.

Even educators should seek to understand copyright nuances as they teach, since it’s not always clear what might be an infringement, even where using materials for classroom teaching may have more potential for fair use.

Conclusion

Copyright protections (or vague claims of infringement) need not stop parent access to curriculum efforts unless the specific actions violate federal law. We hope districts and schools actively seek ways to share more within the bounds and exceptions of copyright law. This approach will increase trust and confidence in a school system that serves the vast majority of our students.