Can one have IP rights such as copyright in a syllabus?

“It's fun to charter an accountant, and sail the wide accountant sea!”

The Israel courts recently had to address the issue of IP rights in a syllabus.

Ms Orli Tal claimed to have created a pedagogic program for teaching 4th year accountancy that she alleged was purloined by the Israel Open University, and sued the university, the Head of the MBA program and various other staff members for NIS 3,172,000.

Ms Tal is a lawyer and accountant who teaches tax law and accountancy.  At the time relevant to her filing suit, she worked for the Legal Dept. of the Israel Tax Office.

Apparently, a degree course in accountancy in Israel is a 3 year program, after which, students can study a fourth year whilst obtaining work experience as a trainee accountant.

At a private function, Ms Tal set up a meeting with the director of the Open University to discuss her study program. She subsequently met the other directors and there was an exchange of study materials, followed by a couple more meetings, and a verbal declaration to get married, understood to mean that the sides would work together.

However, the collaboration didn’t last and Ms Tal sued, claiming that her program was being used without accreditation and in contravention of her rights.

The grounds for legal recompense include:

  • Unjust Enrichment
  • breach of entrepreneurial Trust
  • Breach of Statutory Obligation
  • Breach of Contract
  • Malpractice
  • Acting in Gross Bad Faith
  • Theft of Trade Secret
  • Passing off
  • Physical and Moral Copyright Infringement

The university claims to have been working on a fourth year syllabus prior to the sides meeting, and claims to have met with the Accountant’s Guild some five months prior to the first meeting between Ms Tal and the director of the Open University. The university met with Ms Tal to assess whether she could be incorporated into the program as a lecturer, since she had relevant experience, but due to the differences between her expectations and theirs, no deal was reached. They deny acting in bad faith.

Since the program Ms Tal suggested was built on the elements of low registration fee and a mixture of remote learning and frontal teaching, according to the university, there was nothing new in the approach when compared to what the Open University traditionally did, and therefore there was no trade secret, nor any other IP rights in her program.

According to the defendants, Ms Tal neither proved that her hourly charge of $200 was accepted by them, nor that she had spent the number of hours she claimed to have put into developing her program. They dismissed the alleged damages of NIS 3,172,000 as grossly inflated.

Finally, since the individuals named in the statement of case where working for the Open University and acted in official capacities, they alleged that their being named as co-defendants was inappropriate.

In analyzing the case, Judge Shaul Meinheim considered each legal grounds separately.

COPYRIGHT – noting that the plaintiff had referred to her idea as a pedagogic model and as an idea, Judge Meinheim noted that the first wasn’t a known copyright category and didn’t fit easily into any of the categories. He went on to note that section 5 of the copyright ordinance states quite clearly that there is no copyright in ideas per se. Finding that the model wasn’t fixed in a medium on plaintiff’s testimony, he dismissed the charges. He noted that even if Ms Tal indeed spent 1500 hours researching the program, there was no program presented that could be considered as being a creation protected by copyright.

TRADE SECRET – Judge Meinheim was unable to isolate the alleged trade secret that was the property of Ms Tal prior to being stolen by the university, and therefore dismissed the charges.

BREACH OF CONTRACT – The only document produced was a personal memo by the plaintiff of what was discussed at the first meeting. Judge Meinheim dismissed this as insufficient to indicate that the sides had reached a binding contractual arrangement.

BAD FAITH – It appears that the university negotiated with the plaintiff and no agreement was reached. This is not indicative of bad faith.

UNJUST ENRICHMENT – No evidence was produced that the University made profit from Ms Tal’s ideas.

ADDITIONAL DEFENDANTS – Here again, the judge could see no justification for the various personnel affiliated with he university to be included in the case.

DAMAGES – Even were he to have accepted legitimate grounds for compensation, the sums claimed were considered grossly exaggerated.

The charges were dismissed and costs of NIS 200,000 were awarded against the plaintiff.

T.A. 4130-10-07 Tal vs. Open University and Others., 11 October 2011 Tel Aviv District  Court, Judge Haim Meinheim.

COMMENT

In a recent article I discussed a conference hosted by WIPO and ONO on traditional knowledge. When the idea first came up, Dr Shlomit Yanitzky Ravid who was on sabbatical, invited me to collaborate on the program, expecting this to help create a rigorous conference that would attract the profession.

Although not being particularly positive regarding traditional knowledge, I spent about a week making inquiries and putting together ideas which were presented to ONO and WIPO.

WIPO have strict rules on working with the private sector and they decided that JMB, Factor & Co. couldn’t co-host, nor could I present a lecture.  We decided not to spend any more time on the program and cut our losses. The program that eventually took place did have several elements that I can take credit for, and Dr Shlomit Yanitzky Ravid actually acknowledged the fact on the second day to the participants.

I imagine that Ms Tal had some legitimate grievances and from her perspective, and no doubt she felt that her ideas were being misappropriated. I can understand how Ms Tal felt. Nevertheless, going to court is not generally a solution. As a lawyer she should have known that she had a very weak case and little evidence. I suspect that this decision won’t do her teaching career any good, and will close doors and burn bridges.

One wonders why the lawyer representing her, Calderon, a well-known IP practitioner, took the case.

2 Responses to Can one have IP rights such as copyright in a syllabus?

  1. ruth soetendorp says:

    This is a case exemplifies a real challenge. When pitching to a faculty, how do you share enough to make people interested in the syllabus that you can offer, AND in you as the deliverer? Its too easy to give away so much that the faculty knows what they need to be able to brief and engage another (cheaper?) deliverer.

    Publication of Ms Tal’s case is timely. I recently suggested to an institution that they should include an undergraduate Intellectual Property module on one of their bachelor degree programmes. Now they’ve come back to me asking for more details.

    OK, so they are nibbling. But how do I reel them in? Having read of Ms Tal’s experience, I’m reluctant to share too generously. At the same time I know that holding back too much means they might find another module to fill the gap in their curriculum.

    What a dilemma!

    • As a (fairly knowledgable) practitioner with unfulfilled aspirations to lecture a couple of courses at academic institutions, I can sympathise with the dilemma.

      I think the correct framework is contract law not intellectual property, and would suggest an NDA followed by summaries, etc.

      It may be that this is not feasible in practice…

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