A University Tries to Evade an Open-Records Request By Invoking…the Copyright Act?
And a judge agrees.
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.