What Kind of Property is a Syllabus? 

 

What Kind of Property is a Syllabus? 

At this turn of the new year, professors are thinking about syllabi for the spring semester.  As chair of a committee tasked with making a recommendation about the public availability of syllabi, they are on my mind for an entirely different reason.  My committee received a proposal from student government.  The students wanted the online availability of syllabi to help them in the selection of classes.  Naively, I thought this was such an obvious decision that a meeting was unnecessary – of course my esteemed colleagues would want to share their syllabi.  Not so.  My initial survey of committee members led to a list of concerns, high among them the issue that a syllabus is intellectual property.

Intellectual property refers to ‘creations of the mind’ usually those that lead to some sort of potential for profit such as works of art, published materials or technological developments.  These are protected in law by patents, copyrights and trademarks.  While few of us view our syllabi to be works of art we usually feel that there is an element of creativity, expertise and experience that is folded into the required readings and assignments, making the syllabus distinctly different from an academic regulation or policy.  There is widespread agreement in the academy and the courts that the syllabus is a kind of intellectual property. But whose intellectual property is it and what sort of property?

In Missouri the Court of Appeals determined that professors have intellectual property rights to their syllabi and universities are not obligated to make syllabi public.  Texas courts have followed a different path by legally requiring public colleges and universities to post their syllabi.  As a scholar of real property rights, I have been wrestling with a different issue – what kind of property is the syllabus?

Scholars of property rights like to talk about property ownership regimes as a bundle of sticks representing all of the different rights one can have to a thing.  In my bundle might be the right to buy and sell, the right to rent, the right to divide the property,  and the right to pass it on to my children.  Most of the conversation around syllabi ownership has proceeded as if the metaphorical bundle of rights is private property – either the faculty member owns the syllabus or the academic institution owns it.  But there are many different types of property ownership and we might benefit from thinking about syllabi as a different sort of property regime.

Elinor Ostrom won a Nobel Prize for her work on common property regimes in which ownership is vested in a community and the control of the resource is managed collectively through rules and punishments determined by the group.  Some professors like to think this way about their syllabi – they develop them collaboratively with students and view the syllabus as a mutually accepted and binding agreement.  The movement towards ‘collaborative syllabus’ creation is arguably a shift from private to common property with ownership vested in the students as well as the professor.  Syllabi can also be common property if they are created by a group of professors, for example a team of professors who are all teaching different sections of the same introductory course.

Another way of conceiving the property rights entailed in a syllabus is one of sharecropping (or more negatively, serfdom).  In sharecropping arrangements, there is a property owner who allows the tenant farmer to use their land in exchange for a portion of the harvest.  I find this metaphor to be more aligned with the way I run my courses and conceive of syllabi. It implies a hierarchy of power (owner/tenant) which seems to align well with the university /faculty relationship.  The University provides my salary, the classroom and the students and I am to use these resources in the creation of the final product – the harvest of learning.

I am a proponent of intellectual property rights; I want control over the fruits of my academic labor.  Yet, I would not put syllabi in the same category of work as an original manuscript, a patent, or a work of art.  Syllabi are constrained by rules set by colleges and universities such as the time frame of the semester, department policies, and the availability of resources.  While I want private property rights to my books and articles, I can be content with a sharecropping arrangement regarding syllabi.