Last month, the Missouri Court of Appeals, Western District, held that a public university was not required to turn over copies of certain course materials, including course syllabi, in response to a public records request. The syllabi were the type of document that is normally subject to disclosure under Missouri’s “Sunshine Law” (Chapter 610 of the Revised Statutes of Missouri), which allows members of the public to gain access to government records. However, there was one problem: copyright.
The Sunshine Law Request
In 2012, the National Council on Teacher Quality (“NCTQ”), an education advocacy group based in Washington, D.C., submitted a Sunshine Law request to the University of Missouri. The University disclosed some of the requested documents, but refused to turn over copies of its professors’ course syllabi. According to the University, the professors — not the school — owned the copyrights to the syllabi, so providing copies to NCTQ would be an act of copyright infringement (whether professors own course materials is usually a subject of contract with the university, in the absence of which the work-for-hire doctrine likely will dictate ownership). NCTQ filed suit, but the lower court took the University’s side. NCTQ then appealed.
The Appeals Court Opinion
The Appeals Court opinion, authored by Judge Lisa White Hardwick, held that the syllabi were presumptively open to the public unless they were “records which are protected from disclosure by law.” According to Judge Hardwick, the Copyright Act is such a law. Although the Copyright Act is concerned not with the disclosure of documents but with their unauthorized copying, in this case the former would require the latter. Therefore, it was appropriate for the University to refuse to turn over copies of the syllabi.
The NCTQ argued that any copies made for the purpose of complying with the Sunshine Law would be a presumptive fair use and thus not a copyright infringement. The Court countered that the affirmative defense of fair use could not even be considered until a prima facie case of copyright infringement is made. Here, since no copies had been made, there was no prima facie case. Therefore, whether the fair use doctrine would have justified the creation of these copies in the first place could not even be considered because the copies don’t exist yet. This is arguably a bit of a Catch-22, but the Court cited other grounds as well, including the argument that there are no presumptive categories of fair use (which is judged on a case by case basis) and that, even if there were presumptive categories, a state court was not the appropriate body to identify them.
It wasn’t a total victory for the University, however. While copyright law may foreclose making copies of the syllabi, it didn’t foreclose making the syllabi available for inspection. Thus, NCTQ will be permitted to look at the documents; it just can’t take them back to Washington. NCTQ has indicated that it will appeal to the Missouri Supreme Court.