An interesting court decision involving faculty intellectual property came down last week. The Missouri Court of Appeals Western District ruled on August 26 that The University of Missouri System does not have to release course syllabi because they are protected by copyright laws. The ruling upheld a previous lower court decision. According to the appeals court, syllabi are the intellectual property of the faculty, and are therefore protected from disclosure under the federal Copyright Act and exempt from a state “sunshine” statute. The National Council on Teacher Quality (NCTQ) had filed suit against the University in 2012 after the system declined to release syllabi to the group for a college evaluation project it had undertaken in cooperation with U.S. News and World Report.
“In responding to the NCTQ’s request for course syllabi, we felt it was important to respect the rights of the faculty members who created the syllabi,” John Fougere, the university system’s spokesman, said in a statement. “We are glad that both courts to review the matter have concluded that we acted lawfully.”
NCTQ President Kate Walsh disagreed, of course. “It’s an argument that I think is a strange one for universities to argue,” Walsh said. “I would imagine that universities don’t want it on record that the syllabi that professors prepare as employees of the university don’t really belong to [the university]. I don’t understand why universities would want to argue that case.”
So there we have it. For educational “reformers” like Walsh, professors are simply employees whose work belongs to their employer. Sadly, that’s increasingly the attitude of too many university administrators as well. It’s encouraging that at least in Missouri the administration has resisted the temptation to claim what is not rightfully theirs.
It is not clear that the New York State courts have ruled or would rule in the same manner. There is evidence that course syllabi have been obtained under the state’s freedom of information law (cf. e.g.. http://www.desmogblog.com/directory/vocabulary/10487 for a FOIL request that elicited General Patraeus’ CUNY course syllabus).
Further, an online search for SUNY institution documents on this subject reveals that the syllabus is generally considered the course contract of the institution with the student enrolled in the course. Indeed, apparently some SUNY departments even post syllabi on the Web (cf. e.g. http://www.albany.edu/informationstudies/ist_courses.php#IST670). It thus becomes difficult for the course contract offered to anyone who enrolls in a course at a public institution to be a non-public document.
Of course, there is broad latitude in the content of syllabi. In SUNY they generally contain basic information like the title and a short description of the course as well as textbooks required, meeting times and places and required homework for receiving an acceptable grade. Syllabi also include other course management policies such as the use of cellphones and other recording equipment during the course, and should guarantee that persons with disabilities will have access to reasonable accommodation (which might include the privilege of recording),
While it is customary to include a week by week schedule of assignments, faculty have in the past indicated on the syllabus that such a schedule will be subject to change/evolution, etc.and thereby avoided revealing a detailed “intellectual plan” of the course. In other words, as long as the potential for change is recorded up front in the syllabus, the syllabus cannot be “held against” the instructor should the student decide to enroll. The student by continuing in the course after viewing the syllabus indicates assent to the course policies by virtue of enrollment in the course.
It does not seem unreasonable, especially in the public university context, for there to be some form of contractual understanding between and among the institution, the instructor, and the student. To consider such contracts “copyrighted material” is to undermine the students’ right to know what the expectations are when they enroll in a course. Nothing prevents the instructor from providing more complete outlines of their intellectual property in separate documents during the conduct of the course where academic freedom should prevail and protect the interests of the faculty member.
This commenter has argued elsewhere at this blog that in the age of instantaneous recording, instructors should protect their course work by all legal means under copyright law. This likely requires the instructor to always record his/her own lectures so that they become instantly copyrighted under current Federal law. However, even this is a gray area because the instructor’s concommitant recording of a student’s contribution to an in-class discussion, for example, would appear to usurp the student’s own right to record him/herself and enforce copyright protection. Copyright law is broad indeed, and one need not have a faculty appointment to enjoy its rights and privileges.
In short, this is a far more complex issue than the blog host would have us believe. Faculty should do everything possible to ensure a level and fair playing field for the evaluation of student performance, and faculty should also retain the right to their intellectual property with respect to the subject matter of their discipline — keeping in mind that ideas cannot be copyrighted, only their expression.
It would seem, then, that faculty would then do well to limit the expression of their ideas in syllabi to the bare minimum necessary to establish the contractual relationship with the student. Far from being a burden or a secret document, a syllabus is part of the privilege of teaching in a college or univeristy: the commitment to open and fair communication and evaluation in the context of a freely-entered into learning contract.
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