Copyright

A University Tries to Evade an Open-Records Request By Invoking…the Copyright Act?

And a judge agrees.

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What's Latin for "legal sophistry"?
University of Missouri

The National Council on Teacher Quality (NCTQ) conducts studies of the country's teacher preparation programs. Some educators don't think much of its methodology; I don't have an opinion about that. What bothers me is when schools do not merely criticize the group's work but twist the law to keep the group from studying them in the first place. Especially if they create a precedent in the process that can be used to shield still more public institutions from the public's eyes.

That's what the University of Missouri is doing. First it refused to provide the NCTQ with the syllabi its education professors use. When the group pointed out that this conflicted with the state's Sunshine Law, the school argued that this was immaterial because a syllabus is a professor's intellectual property.

At this point, you might be thinking: Wait a minute. Even if I accept the idea that a teacher owns his syllabus, how does it violate his copyright to share the document with someone who has no plans to publish it? The Missouri Court of Appeals, which sided with the university in August, offers this answer:

[I]n order to disclose the syllabi as requested by the NCTQ, the University would have to reproduce and distribute the syllabi. Thus, while the Federal Copyright Act does not explicitly protect against disclosure, it does protect against the means by which the requested disclosure would be obtained.

Under this interpretation of the law, the university may be required to let people inspect its syllabus in person, but it can refuse to make copies. The court denied the obvious—that this makes it easy for transparency-averse bureaucrats to impose new costs on researchers—by claiming that if this were so, the practice "should have run rampant by now."

The judge backed up that odd argument by noting that the state attorney general had opined way back in 1987 that the federal Copyright Act limited Missouri's disclosure law, and that the floodgates of obstructionism did not open. But that 27-year-old statement emerged from a rather different situation, when some libraries wanted to know if they could enter a contract with a cataloging service that restricted how its material could be used. If other agencies did not leap on the opinion to protect their documents, that may be because, until now, it did not occur to any of them that they could do so.

The NCTQ is appealing the decision. The group had to file similar suits in Minnesota, where the courts ruled in the researchers' favor, and in Wisconsin, where the university system and the researchers eventually reached an agreement.

For further reading: Michael Podgursky, who teaches economics at the University of Missouri, denounces the "absurd legal fiction that the syllabi distributed to 35,000 MU students cannot be disclosed to an organization making use of the state's Sunshine laws." George Leef of Forbes asks whether faculty members ought to control those copyrights to begin with.

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  1. When the group pointed out that this conflicted with the state’s Sunshine Law, the school argued that this was immaterial because a syllabus is a professor’s intellectual property.

    “Copyright is there to protect authors!”(TM)

    1. “I am thze author, I outrank you!”

  2. The group had to file similar suits in Minnesota, where the courts ruled in the researchers’ favor, and in Wisconsin, where the university system and the researchers eventually reached an agreement.

    50 states, 50 experiments.

    Until one state hits the bureaucratic jackpot and kills the other 49 experiments.

  3. OT: not sure if this tasing incident has been posted yet.

    http://hotair.com/archives/201…..-from-him/

    1. Thank god, no officers were harmed.

  4. Most every place I’ve worked, any intellectual property developed while on the job is the property of the employer. That would be the taxpayers.

    1. Yeah, that’s how I would see it. Although academics are in a kind of legal borderland: if I write a book, then the copyright belongs to the publisher and then to me but not to my university. Even if receive research money from the university. OTOH, scientific advances accomplished on university property normally belong to the university.

      Bitching about the syllabi is weird. I can think of a few things that might be going on: (i) some faculty may not be providing syllabi; (ii) they may be providing ridiculously easy syllabi; (iii) they may be writing syllabi that reflect relatively radical perspectives and don’t want that out in public.

      1. What’s going on is that the National Council on Teacher Quality is a conservative think-tank that uses education departments’ syllabi to gauge the effectiveness of their teacher preparation programs. As you hit upon in number 3, education departments tend to be the most red places on campus. Based upon the criticisms given by the U of MI and looking at the NCTQ’s study on its website, I do agree there are some methodological flaws in its reporting (mainly that institutions that did not supply all the necessary data to gauge a score on a particular criterion are still used in overall regional and national ranking). However, the actions of the U of MO just seem to be a “fuck you” based on ideology, as opposed to actual concerns over the report’s methodology.

        1. That makes a lot of sense. The thing that bugs me is, as the story notes, since UM is a public school, it really doesn’t have a right to not disclose the syllabi. Docs protected under FERPA and the normal personnel and personal files would be restricted, but not much else.

        2. I was confused for a moment – you meant “red” as in “commie”, not red as in one state, two state, red state, blue state, right?

          1. “Red” as in “fucking Pinko bastards”, yes.

    2. Different schools have different policies. However, since teaching courses is explicitly part of a professor’s assignment (usually) and a syllabus is mandatory for a course, it seems like it should be easy to make the argument that the syllabus, at least, is work for hire.

      It’s likely that faculty are not doing syllabi, or doing only very cursory ones.

      1. Fluffy beat me by a minute.

  5. Abolish IP, problem solves itself.

  6. Also, couldn’t they just ask a student to borrow their copy?

    1. Revealing state secrets? The student would have to move to Russia.

    2. If the university is willing to go to court over it, they’re willing to kick students out too.

  7. The judge backed up that odd argument by noting that his word is law and you peasants can to fuck yourselves.

    FIFY

  8. A University Tries to Evade an Open-Records Request By Invoking…the Copyright Act?

    Jesse, you realize that Climate Change alarmists did this exact thing nearly a decade ago?

    And us older reasonoids sat here and watched reason completely ignore it.

  9. They obviously don’t own the syllabi.

    They’re PLAINLY work for hire. They’re almost the definition of work for hire.

    1. Why do you think the judge went the other way?

      I only ask because I know little about IP law.

      1. Because the judge probably believes that the National Council on Teacher Quality is made up of mean people who are just asking for these documents to undermine a worthy public policy.

        He’s pulling a Roberts.

      2. Why do you think the judge went the other way?

        According to the decision, “The University maintains rules concerning copyright ownership in materials developed by faculty in their roles as teachers. Those rules are incorporated in faculty members’ terms of employment. Under the copyright rules, materials that faculty create as part of their coursework, including syllabi, belong to the faculty. Additionally, when faculty share syllabi with the University?for purposes such as accreditation, curriculum review, and promotion and tenure?copyright ownership of syllabi is not transferred to the University.” NCTQ didn’t dispute this.

        1. Turns out, my university’s collective bargaining agreement explicitly assigns ownership to the faculty, with the caveat that the university can “maintain syllabus information” for “purposes of program and administrative record keeping”.

    2. Sincere question here: how are you defining “work for hire”? I ask b/c I’m not clear on the legal definition of some of these terms.

      Let me give an example: a couple of years back, a publisher asked me to write something explicitly for them. The contract actually had “Work for Hire” on it somewhere. They paid me directly, and I was responsible for taking care of all the taxes as an independent contractor would be.

      When I work for the university, I receive a salary from them as any employee at any entity would.

  10. When the group pointed out that this conflicted with the state’s Sunshine Law, the school argued that this was immaterial because a syllabus is a professor’s intellectual property.

    This would be unusual, as a syllabus is a “work made for hire” belonging to the employer unless the prof’s contract says otherwise.

    Maybe it does, which means only that the U just has to ask the prof if they can send it to somebody else.

    Even if it is the prof’s copyright, is he putting the notice on copies he distributes to students? Is he enforcing the copyright? If not, its probably not really copyrighted.

    1. Additionally, when faculty share syllabi with the University?for purposes such as accreditation, curriculum review, and promotion and tenure?copyright ownership of syllabi is not transferred to the University.

      Interesting, but it begs the question of what, if any, restrictions the University is under as far as sharing these copyrighted materials. In the absence of anything in writing, the sharing with the University probably creates an implied non-exclusive license, which generally means that the University has reasonable rights (based on facts and circs) to distribute the syllabus itself.

      So, the ruling is still horseshit.

  11. Thus, while the Federal Copyright Act does not explicitly protect against disclosure, it does protect against the means by which the requested disclosure would be obtained.

    Shorter: “Fuck You.”

  12. The copyright issue is irrelevant since the schools could easily make granting of permission to use the syllabus to researchers a condition of employment (and I highly suspect that in at least some cases the syllabi count as works for hire and the college owns the copyright anyway.

  13. Remember kids, copyright always goes to the party that is able to yell “screw you” the loudest, preferably with the assistance of multiple esquires.

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