I was a music major as an undergraduate. BFA, Music (vocal performance), Marshall University, 1997. One of my great loves is teaching music theory. I taught a little even as an undergrad, substituting when professors were away or guest teaching about indigenous Japanese music when we studied ethnomusicology. (When the time came to apply to graduate school, I still hadn’t decided what I wanted to be when I grew up. In addition to applying to the Instructional Psychology and Technology program at BYU, I also applied to the ethnomusicology programs at University of Tokyo and University of Hawaii.) One of these days, after I’ve retired, I’m going to write a radically restructured, OER-based freshman music theory course, based on research I did early in my career and what I’ve learned about good teaching since then. (Theory is generally taught as a weed out course to scare non-musicians out of the program, rather than as the solid grounding in the technical aspects of music that every musician needs to have.)

All of that to say – music is a metaphor for many things in life to me.

Something has always stuck out to me about the freshmen music theory course. Each year in the US, we turn out thousands of students who have learned the rules Bach used to write four part chorales. The rules are relatively straightforward. But even though we train thousands of students, year after year, we haven’t seen another Bach. There was apparently something more going on in his composing than just slavish devotion to the part writing rules he discovered. Those rules were mixed with something deeply human.

Rules can be applied by machines. Consequently, machines can compose music in the style of Bach. If you didn’t play with the recent Bach-inspired Google Doodle, you should – it’s a lot of fun, and an amazing piece of data-driven technology:

Amazing as it is, the Google Doodle music isn’t much better than the music you find in the homework assignments of freshmen each year. Yes, it’s technically solid in its application of the rules, but it’s generally soulless. It doesn’t move you. It’s all science and no art.

And of course the opposite exists – music that commits to the art but eschews the science. A night at karaoke will reveal many people who pour their whole souls into singing, but who never spent time practicing and developing their technique – that is, they never learned the science of singing. This kind of music is generally not that pleasant to listen to, though it is admittedly a lot of fun to make.

I will pause here to admit that yes, the art-science divide is a bit dodgy. There is an art to doing great science, and yes, there is a science to doing great art. It’s a bit of a false dichotomy. But stick with me – that’s kind of my point.

There’s a debate going on in education that seems to be growing almost by the week. It’s a partisan divide over the role of data in education. To caricature both sides of the debate (which they seem happy to do to each other), on the one side you have those who are represented as believing that if we just provide the right algorithms with enough data, we can solve all of education’s problems. Importantly, we can apply the things we learn from data to eliminate the faculty role and fully automate education, thus allowing technology-mediated, data-driven educational opportunities to scale cheaply and quickly to everyone around the world. On the other side of the divide are those who are represented as believing that educational data is a plague, and that contact with it should be avoided at all costs. We should never collect it, we should certainly never analyze it, and above all we should never make teaching decisions based on it. Rather than building education around what we “learn from data” (air quotes), we need to center education on humans and the relationships of care and support that can exist between them.

I don’t know of any person whose beliefs are so extreme as to actually match up with either of these caricatures, but it does feel to me like there’s a migration toward one or the other of these extreme views by a growing number of people.

The point I hoped to make in this post (yes, there was a point) is that education is like music – in the same way that inspiring music is a combination of art and science, inspiring teaching is a combination of art and science as well. A course that implements the relevant learning science but is completely missing a relationship with a caring faculty member (looking at you, MOOCs) is going to fall short of its potential. Likewise, course taught by a teacher who loves the students and loves the discipline but has no technical training in pedagogy and isn’t capable of doing their own research with their own data is going to fall short of its potential. A truly great course will be based on relevant research, deeply rooted in relationships of trust, care, and support, and continuously improved through analysis of local data. The choice between a research-informed, data-driven classroom and a classroom centered on relationships of care and support is a choice we don’t have to make. We can choose to have both as we work to find new ways to synergistically combine the art and the science of teaching.

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Over the last 24 hours there’s been a short Twitter thread about whether or not materials released under a CC license with the NC condition can be used in a college classroom safely.

The standard answer here, is “Of course! Using NC-licensed material in a college classroom is totally safe!” The problem is, that answer is wrong.

There’s only one person whose interpretation of NC matters, and it’s not yours. And it’s not mine. And it’s not Creative Commons. It’s the LICENSOR whose opinion counts. If that person looks at your use of their material and believes it violates the NC condition, then things start to happen.

If the licensor believes your use violates the NC condition, they are the person who will send you an informal letter politely asking you to stop. They’re the person who will direct a lawyer to send you a formal cease and desist letter asking you to stop. They’re the person who will take you to court if you fail to comply with their wishes.

Now, you may be wondering, “would licensors ever actually think my use of their NC-licensed content in a university classroom constitutes a commercial use?” Actually, we have data on that.

Creative Commons conducted a large international study with funding from Andrew W. Mellon Foundation. The final report, titled Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” asks respondents to address this question specifically. Here I reproduce Figure 15 from the report (p. 62).

Figure 15: Ratings of Commercial Use by Creators and Users: Scenarios Related to Uses by Organization

As you can see in the second prompt up from the bottom, both users and creators put “Use for course materials by a tuition-based school” closer to “Definitely a Commercial Use” than they do to “Definitely a NONcommercial Use.” Quoting from the report (p. 63):

The only ratings for use by an organization that are seen as more noncommercial than commercial are specific to a use that suggests no money is exchanged: if a school that does not charge tuition uses a work in its course materials then both creators and users rate the use noncommercial, especially creators, although consensus for both groups is low. By contrast, if a school charges tuition then both groups increase their ratings, and creators do so significantly (from 33.5 to 56.3, as compared to a rise from 44.0 to 57.4 for users). Note that the profit status of the school was not specified in these two uses.

You may protest, “But those data are a decade old! That would never happen today!” But you’d be wrong. Here’s an example from just a few months back:

and

Conclusion

In summary, the answer to the question “Is it ok to use NC-licensed material in my university course?” is not “of course!” The answer is “What’s your level of risk tolerance?” How would you feel if, after going to the time and effort of redesigning your course around those NC-licensed materials, you received a letter from the licensor asking you to remove all those materials from your course? How much time, money, and effort are you (or your institution) willing to spend defending your use of NC-licensed materials in court? Et cetera. True, the odds of any of that happening are pretty low, but…

The most important thing to understand about reusing NC-licensed material is that it doesn’t matter what you or I think NC means. The only person whose opinion matters is the LICENSOR.

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This post is rather long. For the tl;dr, read the final two paragraphs.

Football as played in America is not the same sport as the football they play in the rest of the world. Actually, that is an oversimplification, as a wide range of very different games are called “football” around the world. (See Wikipedia for a list of its most common variations.) While these games share a common name, they are wildly different beyond some superficial similarities (they are all games played by teams of players who, to a greater or lesser degree, kick a ball in order to score points). Quite literally, the “fundamental rules of the game” are different.

The differences in rules between the many kinds of football have naturally led to the evolution of very different strategies for winning the different versions of the game. Can you imagine the result of applying strategies that have proven successful in American football to the game as it is played in Brazil? Or Australia? Think about this way: while they both play at the very highest level of their respective games, there is no world in which Lionel Messi and Tom Brady trade places and either finds any measure of success. It almost breaks my brain just thinking about it.

We have a similar problem in the open educational resources (OER) space. Many people are in the habit of referring to OER as a commons. However, beyond some superficial similarities (groups of people trying to sustain access to usable resources), the worlds of OER and the commons traditional studied by economists are completely different games. Not only are the “fundamental rules of the game” different, they are often quite literally the opposite of each other. The confusion caused by our lightly tossing around the undifferentiated word “commons” leads reasonable people to attempt to draw lessons out of the literature and scholarship of the (traditional) commons and apply those lessons to OER. Without significant adaptation, this is a mistake.

OER are not like the shared resources at the center of traditional commons. As I’ll discuss below, the rules of the game are very different – and so we should refer to this game as a different kind of commons (think “Australian Rules Football”). For the moment, I’ll put off discussing a name for this other commons and focus on the differences between the two. I drew out some of these differences in an earlier post. Let me revisit a few of them here in light of the football analogy.

The Traditional Commons Game

Rule 1: The easiest way to lose the Traditional Commons game is to allow your shared resources to be overused or overconsumed.

Rule 2: The next easiest way to lose the Traditional Commons game is to be dispossessed of your shared resources through enclosure.

If either of these conditions come to pass, everyone loses access to the shared resources and we all lose the game.

In other words, the “Traditional Commons Game” is primarily one in which a group of people come together and act according to shared norms, values, and protocols in order to (1) avoid ruining their shared resources through overuse and overconsumption and (2) ensure that they are not forcibly dispossessed of their shared resources through enclosure.

(While I will use the word “win” below to discuss the goals of commons games, this is just a more convenient shorthand for “not losing.” Commons games are never truly won – the goal of the game is to keep not losing.)

The playbook that has emerged over time for winning the Traditional Commons Game contains plays and strategies that are highly optimized for these rules. People (like Elinor Ostrom) know how to win this game.

A Different Commons Game

Rule 1: Openly licensed resources cannot be overused or overconsumed.

Rule 2: Openly licensed resources are not subject to enclosure.

The two primary ways to lose the Traditional Commons Game aren’t factors in this Different Commons Game. At all. If openly licensed resources can’t be overused or overconsumed and are not subject to enclosure, what are the main rules of the Different Commons Game?

Rule 3: The easiest way to lose the Different Commons Game is for the group to never create (or to under-produce) openly licensed resources.

Rule 4: The next easiest way to lose the Different Commons Game is for the group to never update the openly licensed resources.

If either of these conditions come to pass, there are (or will soon be) no usable resources and we all lose the game.

Can you see that the Different Commons Game is a very different game from the Traditional Commons Game? While they may share some superficial similarities (groups trying to sustain access to usable resources), there is very little reason to believe that the playbook developed to win the Traditional Commons Game will be all that helpful winning the Different Commons Game.

Ostrom’s 8

The best known playbook for winning the Traditional Commons Game is Ostrom’s eight design principles, first laid out in her 1990 book Governing the Commons: The Evolution of Institutions for Collective Action. Here I reproduce Table 3.1 from page 90.


 

Table 3.1. Design principles illustrated by long-enduring CPR institutions

1. Clearly defined boundaries
Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.

2. Congruence between appropriation and provision rules and local conditions
Appropriation rules restricting time, place, technology, and/or quality of resource units are related to local conditions and to provision rules requiring labor, material, and/or money.

3. Collective-choice arrangements
Most individuals affected by the operational rules can participate in modifying the operational rules.

4. Monitoring
Monitors, who actively audit CPR conditions and appropriate behavior, are accountable to the appropriators or are the appropriators.

5. Graduated sanctions
Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.

6. Conflict-resolution mechanisms
Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators of between appropriators and officials.

7. Minimal recognition of rights to organize
The rights of appropriators to devise their own institutions are not challenged by external governmental authorities.

8. Nested enterprises
Appropriate, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.


 

A cursory review of the principles immediately reveals a host of ways they fail to apply directly to the context of our different commons.

The very title makes clear that these principles are exhibited by groups successfully managing common pool resources (CPRs). However, OER are not CPRs. CPRs are subtractable (rivalrous), which makes them susceptible to problems of overuse. OER are public goods – meaning they are non-subtractable – which means they are not susceptible to problems of overuse. In other words, the primary problem this entire set of design principles is meant to solve doesn’t exist in the context of OER. I cannot stress this point enough, and will return to it below.

Principle 1 states that there must be clarity about who is and who is not allowed to withdraw resources from the common pool. This principle fails to apply to OER in multiple ways. First, because of the non-subtractable nature of OER you do not “withdraw” them from the pool – you make a perfect digital copy and leave the original in the pool for others to continue to access (consequently, there can be no overuse). Second, I believe most people in the OER movement have a desire to extend the benefits of education to all humankind, and therefore the idea of drawing boundaries around who is allowed access to OER would be an inversion of the goals of the movement.

We could go on. Suffice it to say that the different rules of the Different Commons Game lead to different strategies for winning. Don’t get me wrong – there are high-level lessons for us to learn from Ostrom’s eight design principles. But we can’t and shouldn’t expect to apply her eight principles as-is in this different commons context and have any more success than we would using the FC Barcelona playbook in the Super Bowl.

This is the reason why the same “patterns of commoning” that emerge in order to sustain traditional commons haven’t emerged in the context of OER. Those patterns have emerged specifically to counter the existential threats of overuse and enclosure, and it makes literally no sense to replicate those patterns of commoning in the context of OER – we don’t need to spend time and energy guarding against threats that don’t exist. Instead, we need to develop a better understanding of our different commons and evolve our own unique playbook for how to win our Different Commons Game.

Why does any of this matter? Who cares which football we’re playing? This whole line of inquiry is all preparation to ask the question, “How do we sustain OER-related work over the long term?” The first step to cracking this incredibly difficult problem is recognizing that we’re not trying to win the Super Bowl, we’re trying to win the World Cup. We’re not fighting cancer, we’re fighting heart disease. We’re not working in a traditional commons, we’re working in a very different commons. The correct diagnosis is generally the first step to finding an effective cure.

Or, as Ostrom wrote,

Models are used inappropriately when applied to the study of problematic situations that do not closely fit the assumptions of the model.

A “Constructed Cultural Commons”

Undoubtedly the best paper I’ve read on this topic – the significant degree to which the commons with OER at its center is different from traditional commons, and the significant degree to which we need to adapt traditional commons scholarship in order to make progress on problems of sustainability in our context – is Constructing Commons in the Cultural Environment by Madison, Frischmann, and Strandburg (2010). In this paper the authors name the kind of commons we are concerned with a “constructed cultural commons.” I believe the name is effective at highlighting some of the key differences between traditional commons and the kind those of us who work with OER are concerned with, so I’ll use it below (and in the future).

This paper makes several of the points I’ve made above much more eloquently (well, certainly at greater length, in more technical detail, and with more footnotes). A sampling:

[I]t is important to identify the particular problem or problems that a given commons is constructed to address. In the natural resource context, this question does not often come to the fore because common-pool resources are defined by the problem of subtractability or rivalrousness (e.g., removing lobsters from the pool results in fewer lobsters for everyone else) and the risk that a common-pool resource will be exhausted by uncoordinated self- interested activity (e.g., unmanaged harvesting may jeopardize the sustainability of the lobster population).

Intellectual commons address different problems, which are defined initially by the fact that, as public goods, intellectual resources are not rivalrously consumed. A copyrighted work or patented invention can be “used” simultaneously by many people while it is part of a commons without diminishing its availability for others….

The various problems that cultural commons institutions solve are not merely, or even primarily, problems of overuse. The problems addressed by cultural commons include the production of intellectual goods to be shared, the overcoming of transaction costs leading to bargaining breakdown among different actors interested in exploiting the intellectual resource, the production of commonly useful platforms for further creativity, and so forth. (p. 691)

Despite considerable variation and nuance, these activities all can be understood to present a simple core problem: as public goods, the “output” from these activities—whether described as information, expression, invention, innovation, research, ideas, or otherwise—is naturally nonrivalrous, meaning that consumption of the resource does not deplete the amount available to other users, and nonexcludable, meaning that knowledge resources are not naturally defined by boundaries that permit exclusion of users. (p. 666)

The “natural” information environment contains an abundance of raw information resources, including inherited and experienced knowledge. Those resources often become information “works” and, therefore, resources in the pool via some cultural construct, such as the default copyright or patent law systems, via some other institution, such as a publishing industry producing books, films, or songs, or via some combination of these and other things, such as cultural practices or norms. Understanding the construction of cultural commons therefore requires understanding the mechanisms by which resources are provisioned to the commons, whether via legal entitlements or otherwise, and the nature of entitlements to use and consume those resources while they are part of that commons. (p. 700)

Most importantly, unlike commons in the natural resource environment, cultural commons …  participants not only share existing resources but also engage in producing those resources. (p. 681)

Constructed cultural commons must be concerned not only with managing and sustaining existing resources but also with providing institutions to encourage the creation of new resources. (p. 687)

It is entirely possible and desirable for a community to produce and / or manage a cluster of cultural goods that is accessible to outsiders. One of the measures of the social benefit of a constructed cultural commons may be the degree to which it disseminates the intellectual goods it produces to a wider audience. (p. 695)

If you’re interested in understanding why our commons isn’t the commons you may have thought it was, this will be one of the best papers you’ve read in a very long time – particularly if you’re interested in reading an adaptation of Ostrom’s Institutional Analysis and Development framework to commons built around non-subtractable resources on which Ostrom herself provided feedback.

In general, if you want a better set of intellectual tools for thinking about how we should be approaching the sustainability of our work with OER, I highly encourage you to read it.

The tl;dr – OER are Public Goods

Perhaps the single most important and useful takeaway message here is that OER are not common pool resources. They’re public goods. Once you truly, deeply grok that difference, the differences between the traditional commons-based approaches and the different approaches that we need to employ start to become self-evident.

The game we’re playing doesn’t use the ball they use in American football. Or the ball they use in football in Brazil. Or the ball they use in Australia. Those balls are all minor variations on a common pool resource. We’re playing a totally different game with a non-subtractable ball. Imagine if every player in the World Cup could make a legal and perfect copy of the game ball and the players could all use these balls at the same time during the match. That’s how different the game that we’re playing is. We need a different playbook tailored to these different rules. To win the “how do we sustain OER over the long-term” game we need to find a collective action solution to a public goods problem – not rely on the traditional commons playbook.

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