Can you copyright a syllabus?

[Matty]

Hi all,

This is a legal question so I'm not quite sure where it should go on this forum but anyway, here goes.

I'd like to know, if anyone here has had experience with this kind of thing, whether course syllabuses are copyright or 'intellectual property'. It's an important issue if you intend to develop materials in support of existing course books and materials.

By syllabus, I don't mean any kind of media like photos, reading texts, sets of questions or anything like that. What I mean is the vocabulary lists, lexical sets, grammatical structures, idiomatic expressions, etc. Pretty much, what you see summarised on the contents page of a student's or teacher's book.

So do the publishers have property rights over their syllabuses?

Looking forward to your replies,

Matt

[fluffyhamster]

I suppose that if somebody not only followed the exact sequencing of a previous course but also pretty much pasted its contents page into theirs (i.e. had the exact same headings, wording etc), there might be a case to be made; this would seem to assume, however, that there were something magical to the sequencing that would be easy for other teachers to replicate (bear in mind that there is a patter and staging to any course beyond the text) - I know that I for one sometimes (often?) do not see what some teachers find so amazing about their own or other's materials, nor I suspect do people always appreciate the choices that I've made for my classes; basically, I feel that each teacher ultimately could do with writing their very own textbook(s), with translating whatever hard-won linguistic knowledge they have into a form that at least their own students will be able to relate to and progress from.

The case would be stronger however if it were a very well-written self-study/"teach yourself" style book, translated into the student's first language, and with scores of apparently satisfied and successful customers (I guess that Linguaphone, Pimsleur etc are pretty protective of their courses for English people studying whatever languages).

The choice could well be between being a very successful private teacher with some sort of "secret" for success, or selling that secret for others to use.

http://itre.cis.upenn.edu/~myl/language ... 00947.html
http://forums.eslcafe.com/job/viewtopic.php?t=15850
http://forums.eslcafe.com/teacher/viewtopic.php?t=2860

BTW, I notice that you've posted what seems to be an indentical query on not just the AL forum, but three others too, but it's the AL one that gets the most answers if not traffic, and people don't always check to see if they'll be more or less repeating what's been said elsewhere (i.e. it can end up wasteful of people's time). Perhaps redirect people after a while to what seems to have by then become the most productive of the four threads (it is also possible to delete unanswered initial posts and thereby the threads that contain them).

[jotham]

I remember studying a U.S. law case around 1914 that seems similar. A tutor was summarizing each paragraph in a textbook into a general outline for his pupils. Though it wasn't word-for-word copying, the court decided that there was a violation of copyright on a macrolevel, like I suppose a syllabus might be.

[jotham]

That case was Macmillan Co v. King:
http://en.wikipedia.org/wiki/Macmillan_Co._v._King

This was what District Judge Dodge wrote about why it constituted a violation of copyright:

the topics treated are topics treated in the book, the attempt is made to reproduce in abridged and paraphrased form (so far as such reproduction is possible within the very narrow limits adopted) the author's treatment of the topics selected, and the author's order and arrangement of topics within the portions of the book dealt with is followed, except for a certain amount of transposition or repetition.
It is true that the whole book has not been thus dealt with; but the copyright protects every substantial component part of the book, as well as the whole.

Emphasis mine.

[Matty]

Thanks for that Jotham!

I read the Wikipedia article and got a rough idea of what the case was about.

So it seems that if anyone were to base extra resource materials on an already existing EFL publication, closely matching the grammar and vocabulary points covered, it would indeed be a breach of copyright.

The professor obliged his students to buy their own copies of the books and his typed sheets were basically what the students would most probably make for themselves anyway - a condensed summary of the book they were studying. I guess the publishers got a bit peeved that he was reproduing their material without permission and they way that he presented the notes could constitute a claim of ownership if left unchecked.

I bet he could've avoided the whole thing if he'd just contacted the publishers in the first place.

That's really cleared things up for me.

[jotham]

Well, today, fair use would probably allow the professor to do this. After all, he wasn't selling his notes; he was just using them as a teaching aid. I really don't know if there are specific laws that cover syllabi, so if a court case came up, it probably depends on the opinion of judges. In my opinion, I think it should be protected.
I was an editor for English textbooks in Taiwan. I knew that all the textbook companies were copying the main presentation of grammar points in pretty much the same order as the old government textbooks. It seemed as though creativity could only express itself in the pictures and variety in the exercises -- but the order of grammar points and even the manner of presentation was only reluctantly changed. The reasoning I was given was that all the teachers, who were used to the old cookie-cutter government textbooks, often complained if a textbook departed from that mold too much. I wasn't happy about this, but there wasn't any legal ramifications since the government was unlikely to sue companies, but rather probably encouraged them to use their model.

[blackmagicABC]

Well, today, fair use would probably allow the professor to do this. After all, he wasn't selling his notes; he was just using them as a teaching aid. I really don't know if there are specific laws that cover syllabi, so if a court case came up, it probably depends on the opinion of judges. In my opinion, I think it should be protected.
I was an editor for English textbooks in Taiwan. I knew that all the textbook companies were copying the main presentation of grammar points in pretty much the same order as the old government textbooks. It seemed as though creativity could only express itself in the pictures and variety in the exercises -- but the order of grammar points and even the manner of presentation was only reluctantly changed. The reasoning I was given was that all the teachers, who were used to the old cookie-cutter government textbooks, often complained if a textbook departed from that mold too much. I wasn't happy about this, but there wasn't any legal ramifications since the government was unlikely to sue companies, but rather probably encouraged them to use their model.

Have to agree with the above. Although not always it seems that the majority of textbooks in Taiwan for older students (not all) work better if the teacher uses a grammar-translation approach which leads to students who can write and read relatively well but can not speak and battle with listening skills. That is compounded by the fact that many of the current teachers went through the older education system (which why they prefer the material) and they teach the way they were taught which is not always the most effective. It would be interesting to know the exact numbers but if I have to guess, I would say that on a test like the GEPT, students who have been taught primarily by a foreign teacher performs much better on the listening and speaking parts of the test where students who were primarily taught by a local teacher perform better on the reading and writing part of the test.

[Stephen Jones]

The short answer to Matt's question is that copyright law varies according to the jurisdiction. I don't know Spanish law.

However if I have understood him right he wants to produce extra-material commercially for existing textbooks. The extra material would obviously follow the vocabulary and grammar progression of each book. I would say that there is no way that would involve a copyright infringement, and of course the original vendors would be foolish to attack a resource that would lead to added sales of their own work.

[jotham]

The short answer to Matt's question is that copyright law varies according to the jurisdiction. I don't know Spanish law.

This is true.

The extra material would obviously follow the vocabulary and grammar progression of each book. I would say that there is no way that would involve a copyright infringement, and of course the original vendors would be foolish to attack a resource that would lead to added sales of their own work.

I wouldn't make such a hasty conclusion here. The original vendors would want the sole right to make money off their own extra materials even if they don't exercise it. If they allow other publishers to base their materials on the original textbook and don't challenge it, that could weaken their rights, in the eyes of the court, to their unique organization or method (assuming we're talking about a desirable, successful textbook). Then what's to stop other textbooks from further diluting their singularity by basing even whole textbooks on the original? They stand to lose much more money from the dispossession of their unique ideas and dilution of their trademark than the purported added sales generated from other companies publishing extra materials for them without their permission.

[Matty]

I wouldn't make such a hasty conclusion here. The original vendors would want the sole right to make money with their own extra materials even if they don't exercise it. If they allow other publishers to base their materials on the original textbook and don't challenge it, that could weaken their rights, in the eyes of the court, to their unique organization or method (assuming we're talking about a desirable, successful textbook).

I agree. This is more likely to be the case. Coming to an explicit arrangement with the publisher and making all the rights and possession of intellectual property absolutely clear would keep everyone happy.

I should think a liberal-minded publisher, if there is such a thing, would enjoy the posibility of selling more books. But then, whatever you produce mustn't compete with what they already publish or intend to publish. There's already a number of good EFL websites with high quality material created by book publishers. That might make them reluctant to grant permission.

[Stephen Jones]

I honestly doubt that any court of law would back up a publisher's claim that additional material for his books was in breach of copyright. It would be the equivalent of a novelist claiming you couldn't write a literary criticism of his book.

[fluffyhamster]

I've just revisited this thread, and realized that for some reason I missed the 'It's an important issue if you intend to develop materials in support of existing course books and materials' in Matty's original post. Strange...(then again, we did adopt a three-legged cat that likes to jump up and sit in front of the computer screen for strokies).

Anyway, who knows what a publisher would or wouldn't do - I suppose that ultimately they'd prefer to publish their own supplementary stuff, assuming they'd want to send out the signal that the book needs major supplementing (beyond whatever suggestions in the exisiting teacher's manuals), and wouldn't be totally supportive of smaller companies appearing to muscle in on their turf; besides, what's so marvellous about the coverage, treatment and progression of the linguistic items in most courses? Chances are that if you have better activities to exemplify or contextualize at least what's in pre-existing books, it wouldn't then be much of a stretch to write a "completely different" book with which to make your own (stronger) claims about what better supports if not exactly follows processes of at least grammatical acquisition (that's kind of where my first post was headed, into at least writing if not copyrighting much more private/individual/original materials).

For example, in the grammar/structure strand, I would have falling intonation tags pretty early on, introduce at least the experiential aspect of present perfect before looking to simple past to fill in the specific details etc (sorry old-timers if I appear to be repeating myself here!).

Damn, that cat is back again...

[jotham]

I honestly doubt that any court of law would back up a publisher's claim that additional material for his books was in breach of copyright.

On the contrary, court of laws place the burden of copyright protection on businesses. It is their responsibility to act when their copyright or trademark is being violated. If they do nothing, then the court may decide that their copyright has become generic and open for all. (Maybe this applies only to trademarks.) On the premise of this understanding, the courts are sympathetic to attempts at protecting copyright.

It would be the equivalent of a novelist claiming you couldn't write a literary criticism of his book.

You're comparing apples with oranges here. Literary critics don't pretend to be working in tandem with the same company. Besides, laws protect this kind of freedom of speech concerning literary criticism, parody, etc.

[Stephen Jones]

Since when has Matty claimed he would be working in tandem with the company? By your argument Microsoft could sue people who tried to write a server to hook into its protocols, as it could claim those protocols are copyright. Instead of this happening it has been fined $1.5bn for not releasing the SMB protocols to allow others to build a server if they so wished.

And there is not such thing as copyright being 'generic'. You're applying trademark law to an entirely different situation.

[thethinker]

An important thing to remember is that the marketing departments of ELT publishers spend huge amounts of time on money on creating a brand (best example, Headway - there are all kinds of spin off materials written by countless different authors as part of the course, the main coursebooks get revised every few years with completely new material, but the Headway name still means quality and reliability to a lot of people, rather like Sony or BMW). If a publisher felt there was some kind of unofficial supplementary book for a particular course going around, their immediate concern would probably not be that they might be losing money (as they will publish as many resource materials as they think is financially worthwhile - they would probably be more concerned that their brand might be at risk of being damaged by substandard material. If they felt that was happening then they would probably use all the legal methods they could afford to protect themselves, and it would probably be very hard to fight against that. So I don't think it's really a question of whether the publisher is liberal minded or not - their concern will be whether you might be putting material out that doesn't match their perceived standards of their own material.

I'm not exactly sure what your situation is, whether you are a hopeful materials writer, whether you're perhaps trying to set up a website of supplementary material that you want to charge for, or what. But I definitely agree that contacting the publisher in question would be the best way to go. I used to work in ELT publishing and to be honest I never came across this kind of situation. Publishers often work with packagers, who produce material for them to be published under the publishers name, and they do sometimes work with local publishers to produce materials for individual markets. I doubt they'd commit themselves legally to let you do whatever it is you want to do, but if you summit me a proposal they might want to work with you on it.