Open-Government Groups Urge Missouri Court to Reject “Copyright” Excuse for Withholding Public Records





FOR IMMEDIATE RELEASE

Contact:

Frank LoMonte, Executive Director, Student Press Law Center

703.807.1904 / director@splc.org

The Student Press Law Center and other leading open-government groups asked the Missouri Supreme Court Wednesday to overturn a lower-court ruling enabling the University of Missouri to withhold public records on the grounds that making copies of the documents violates copyright.

In a friend-of-the-court brief, the SPLC — joined by the Society of Professional Journalists and the Reporters Committee for Freedom of the Press — urged the court to accept an appeal challenging an Aug. 26 ruling, which allowed the university to reject a request to produce copies of instructors’ course syllabi.

The Missouri Court of Appeals accepted the university’s argument that a course syllabus cannot be reproduced without violating copyright, so a requester – in that case, the National Council on Teacher Quality (NCTQ), a nonprofit advocacy group – could inspect the documents on-site but not require the university to provide copies.

“Journalists must have copies of the materials for review and analysis at their own pace. Government should not be – indeed, cannot be – in the business of telling journalists how to do their jobs,” says the brief, prepared by Kansas City attorney Mark P. Johnson of Dentons US LLP, a member of the SPLC’s attorney volunteer network.

The case involves the NCTQ’s request under the Missouri Sunshine Act for course materials about teacher-education courses, part of a nationwide study of teacher preparation. The University of Missouri rejected the Council’s request on the grounds that the syllabi are the copyright-protected property of each instructor, and that the federal Copyright Act’s prohibition on republishing copyright-protected material makes it illegal for the university to furnish a requester with a duplicate.

SPLC’s brief points out that many documents on which journalists rely every day – including memos, studies, reports, databases, letters and even emails – arguably are protected by copyright, meaning that journalists and public watchdogs in Missouri could be limited to examining such records on-site without the ability to make copies. News organizations frequently need copies of such documents to publish to accompany news stories, or to analyze using computer-aided reporting techniques. The appeals-court ruling would hamper investigative journalists’ ability to do their jobs, the brief argues.

“Few requesters have the time and money to mount a multi-year battle against a well-funded institution such as the University of Missouri, and because of the time-sensitive nature of public records, years of delay is often the functional equivalent of denial,” the brief states.

The brief also notes the oddity of allowing Missouri state courts to determine the copyright status of documents, which is exclusively within the jurisdiction of federal courts.

The Missouri Supreme Court has discretion whether to hear the NCTQ’s appeal or to allow the Court of Appeals ruling to remain the last word. The Missouri Press Association also filed a brief encouraging the court to review and reverse the lower-court decision.

“The appeals court clearly did not recognize the breadth of the essential public documents that would be withheld from the public’s use if the university’s copyright claims are allowed to prevail,” said attorney Frank D. LoMonte, executive director of the SPLC. “Every state’s public-records act contemplates that requesters can obtain copies of records, and courts have repeatedly rejected the idea that a single duplicate – required for compliance with state law – constitutes an infringement of copyright. If the instructors believe that the NCTQ or a journalistic requester has commercially exploited their work in a way that undermines its value, those instructors can mount a copyright infringement lawsuit. That, not denying the public meaningful access, is the right way to address any concern over the copyright status of public documents.”

The Student Press Law Center, an Arlington, Va.-based nonprofit provides legal assistance and advocacy in support of student journalists nationwide seeking access to information from schools and colleges. The Center provides free legal training and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.

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