Like Christine Hurt at Conglomerate, I found the recent Chronicle of Higher Education essay on so-called “syllabus plagiarism” fascinating, though less for its commentary on ethics in higher education and more for its perspective on copyright in the academy.
Take One: Claiming a copyright in a course syllabus offers a pretty good example of the evils of property-talk in contemporary intellectual property law. If anything might be copyrighted, then anything will be copyrighted, including such things as course syllabi — which are usually pretty far from the core of the things that copyright was designed to cover — and then the costs of the copyright system will be visited on all kinds of people, with no corresponding benefits.
Take Two: In fairness we should take the claim seriously. Do professors need copyright-style incentives to produce more or better course syllabi? Usually, no. Do their colleges or universities need those incentives? I’m covering the possibility that the institution owns the copyright as a work-made-for-hire, but the answer is again, usually, no. If professors can assert copyright their syllabi, will the academic world come to an end? No — but copyrightable syllabi might get in the way of how teachers have long done things. One colleague of mine might say that teachers operate in a gift economy. Brett Frischmann and I might say that the sharing of syllabi operates as a kind of commons. Michael Heller might worry about a teaching anti-commons or, in the current colloquial, property gridlock.
Take Three: It’s worth digging a little deeper, if only because the CHE essay vibrates with the author’s passion. Her syllabus is her, in a way that might resonate with some theorists and aficionados of moral rights in copyright. The U.S. doesn’t recognize a moral right that would cover this situation, but the overlap between moral rights interests (“don’t misrepresent me by misrepresenting my work”) and standard economic claims (“don’t reproduce or distribute my work without my permission”) is often substantial enough — and it might be here — that it’s worth a closer examination. Set aside the policy argument that dismisses copyright in course syllabi; what would copyright law actually say?
On that basis, it’s not a stretch to say that there is some kind of copyright interest in a course syllabus, at least so long as it meets the standard copyright criteria: Was it independently created by the author? And does it manifest some minimal creativity? It’s fair to assume the former, and in all likelihood, and as is evident in the CHE essay, there is some creativity in the faculty member’s “selection, coordination [and] arrangement” of preexisting materials — though the pre-existing materials in question are not the underlying texts, but references to underlying texts.
For that reason, among others, any copyright claim seems to be extremely narrow, and perhaps ultimately nonexistent. Off the top of my head, I can think of several possible routes to that conclusion. The faculty member hasn’t created a copyrightable compilation work, and perhaps hasn’t created a “work of authorship” at all, but instead has created a table of contents for a possible compilation work. One might plausibly conclude that such a table of contents is itself merely an “idea,” the expression of which is so tightly bound up with it that the copyright is effectively extinguished via the doctrine of merger. Or, an expressive syllabus-as-table-of-contents might fail the copyrightability threshold because it falls under Section 102(b) as a “method of operation”: a syllabus is in effect a guide to teaching and learning in class, or an instruction manual, as it were. Or, one might apply Bruce Boyden’s argument about why copyright law doesn’t protect the play of games: The point of producing a game is not to create expression that the author communicates to the public, but instead to create conditions under which the public can create expression on their own, in the course of playing the game. Similarly, the point of a syllabus is to create the conditions for students to experience expression, not simply (or primarily) for the teacher to communicate the teacher’s expression to the students.
The mapping between any of these arguments and a course syllabus is imperfect, and that last point (based on Bruce’s post regarding games) is especially debatable, I guess. It reflects both my discipline (law) and my teaching philosophy. I don’t want my students to learn how I think; I want my students to learn to think for themselves, and like Christine, I’m flattered, not offended, if a colleague thinks highly enough of my syllabi to borrow them wholly or partly. That’s one of the reasons why I post them online.