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

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 own 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 really own those copyrights to
begin with.