College syllabi are handed out en masse at the beginning of a course for students. Sometimes they’re kept and carefully followed; sometimes they’re tossed away when the student decides not to take it after all. Professors often post their syllabi online. They are not treated like creative works.
Therefore, the idea that syllabi are the copyrighted property of the professor seems far-fetched. The idea that the university that employs the professor must refuse requests for copies of them under a state’s “Sunshine Law” seems even more so. But that is exactly the situation in a dispute involving the University of Missouri and the National Council on Teacher Quality (NCTQ).
As a part of a national study meant to evaluate education school programs – the training future teachers get in college – NCTQ sought the syllabi from numerous institutions. Most schools cooperated, if grudgingly. (You can read about NCTQ’s analysis of education schools and programs here.)
The one that absolutely refused was the University of Missouri. That caused NCTQ to take the further step of formally requesting the syllabi under the state’s Sunshine Law, which is supposed to let the public know what government and governmental institutions are up to. The university still refused, so NCTQ sued.
So far, NCTQ has lost.
On August 26, a Missouri appeals court held that course syllabi are protected by federal copyright law. That trumps the state’s Sunshine Law, so the court ruled that the university is correct in refusing to allow NCTQ or anyone else to have copies. NCTQ will appeal the decision to the Supreme Court of Missouri.
One University of Missouri professor who disagrees with the decision is Michael Podgursky, chairman of the Economics Department from 1995 to 2005. In an op-ed published in the Columbia Tribune on September 14, he argued that the university’s stance is misguided.
Podgursky points out that professors frequently adopt much or even all of existing syllabi by other professors who have taught the same class. “Rare, indeed, is the new assistant professor who does not borrow copiously from the syllabi of his mentor professors when he starts a new teaching job,” he writes. No one ever complains about that practice.
Furthermore, he argues, taxpayers have a right to know what is being taught in the universities they support. “If I’m using a Jane Austen novel instead of an economics textbook in my principles of economics course, the public certainly has a right to know that,” Podgursky writes.
Addressing the wider implications of the case, Erich Veith, attorney for NCTQ, observes in Missouri Lawyers Weekly (unfortunately, the article is not available online) that the decision would hinder access to public records and compel public agencies to “scour requested documents for any copyright issues.” In short, it will be harder for investigators to let the sun shine on governmental conduct.
The Missouri Press Association also assailed the ruling. In the same article cited above, Jean Maneke, an attorney with the Association said that it would file an amicus brief supporting NCTQ’s position since the court’s ruling could encourage public and quasi-public entities to close their records or at least delay their release.
On legal grounds, the University of Missouri’s refusal to release the syllabi looks very shaky. Do professors really hold copyright over their syllabi?
One expert in copyright law, Chapman University law professor Tom Bell, thinks not. In an email to me, he wrote, “While debate continues over whether scholarship prepared in the course of employment with a university falls within the work-for-hire doctrine, there can be little doubt that syllabi do, meaning that the copyrights in them vest in the university rather than the professor.”
Another reason for believing that the court’s ruling is incorrect is the “fair use” exception to copyright. Under “fair use,” people are permitted to make reasonable use of copyrighted material. Among the factors that are to be considered are whether the use is for a non-profit educational purpose and how the use would affect the market value of the work. Here, the analysis to be done on the syllabi is for a non-profit educational purpose (assessing the quality of the education school courses), and it has no impact at all on the market value of the syllabi, which is zero.
It is easy to see what is going on here. The University of Missouri is trying to avoid possible criticism of its education school by hiding behind a legally risible defense that it is merely protecting the rights of its faculty members.
If Missouri’s position were to stand, that would greatly strengthen the widespread perception that copyright has been taken to ridiculous extremes. For example, in his recent book Intellectual Privilege: Copyright, the Common Law, and the Common Good, Professor Bell makes a powerful case that whatever public benefit there is in copyright is heavily outweighed by the harm it does. He would like to see copyright abandoned in favor of common law arrangements that would create a better balance between the interests of creators and the interests of the public.
I will have more to say about Bell’s thought-provoking book in a future article.
For now, let’s conclude by going back to basics on copyright -- the Constitution’s language authorizing it. Under Article I, Section 8, Congress is given power to establish copyrights and patents, “To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Exactly how does it promote the progress of science or the useful arts for college professors to be given the exclusive right to their course syllabi? Obviously, it doesn’t do so at all. Much of what now passes as copyright law would have been laughed at by the Founders and this case is a prime illustration of how copyright has mushroomed far beyond its intended scope.
