The Object of Study
As we work to move entire degree programs from commercial textbooks to open educational resources, we must answer this critical question – can all commercial materials be replaced with open educational resources? The answer to this question is no, but perhaps not for the reason you suspect.
The primary object of study in a college course is often a model, principle, theory, equation, causal relationship, or other idea. While one particular way of explaining an idea can be copyrighted, an idea itself cannot be copyrighted. This feature of copyright law means that, despite how anyone else chooses to leverage their copyright in an explanation of the second law of thermodynamics or the cause of the Civil War, you and I are forever free to create our own explanation of these and other ideas. When we exercise that right and explain an idea in our own words (and perhaps other media), we then hold the copyright to our explanations of those ideas. And as the copyright holders we are free to openly license our explanations, thereby creating OER alternatives to the All Rights Reserved explanations published and controlled by commercial publishers.
Sometimes, however, the object of study is not an idea, but is a specific creative work like a painting by Pollock or a score by Shostakovich. Unlike ideas, creative works are copyrightable. And no matter how much we want to save students money and increase pedagogical flexibility by using OER, it simply isn’t possible for you or I to create an openly licensed equivalent of Catcher in the Rye. This impossibility can also arise when we want students to read a seminal research article rather than someone else’s summary of its key ideas and findings.
In summary, in circumstances where (1) the primary object of study is not an idea, but is a specific creative work which is still under copyright and (2) the copyright holder has chosen not to publish the work under an open license, it is literally impossible to replace all the commercial content in that course with OER.
Whenever it is impossible to replace commercial materials with OER for these reasons, we find ourselves in a situation where commercial materials must be used in the course. If openly licensed materials cannot be used, is there perhaps a way to have students use commercial materials for free (legally, of course)? Asking this question can lead directly to a fruitful collaboration with your campus library. The library may be able to purchase or license copies of these commercial materials and make them available to students for free. In fact, they may have already purchased or licensed copies which are just waiting to be used. The library is a trusted, capable, and unfortunately often overlooked potential partner for closing the access gap to commercial materials. (Your library may also be curating OER you don’t know about – libraries are actually leading the charge toward OER on some campuses.)
Why Use OER at All – Why Not Just Use Library Resources?
Recognizing that the library may already have purchased or licensed copies of materials that could be provided to students for free raises the question: why not just use library resources instead of making the move to OER? The answer to this question combines thinking about cost and permissions.
- Commercial textbooks are (a) extremely expensive and (b) are published under an All Rights Reserved model that restricts what faculty and students can do with them.
- Library resources are (a) available to students for free (though they likely pay a fee which supports the library’s acquisitions budget), but (b) are also published under an All Rights Reserved model that restricts what faculty and students can do with them.
- Open educational resources are (a) available to students for free (though they may pay a technology support fee), and (b) are available to students and faculty under open licenses which provide them perpetual, irrevocable permissions to retain, reuse, revise, remix, and redistribute them.
In tabular form:
From the perspectives of affordability and pedagogical flexibility, when faculty make course materials adoption decisions they should chose OER first, all other things being equal. When it is impossible to choose OER, faculty should choose library resources. Students should be required to individually purchase commercial materials only when OER and library resources are impossible to use.
The Danger Zone: A Third Category Replaceability
Finally, it is important to recognize a middle category between situations where faculty can adopt OER and situations where it is impossible to replace the object of study with an openly licensed equivalent. The three categories of replaceability are:
- An open replacement exists: OER already exist that can be adopted in place of commercial materials.
- An open replacement could exist, but doesn’t yet. No adoptable OER exist, but this problem could be solved through the appropriate investment of time and resources.
- An open replacement is impossible. No OER exist because it is impossible to create an openly licensed replacement of the principal object of study.
While it is critically important for us to recognize that a range of circumstances exist in which an open replacement is impossible, it is equally important that we recognize that “impossible” is not the same as “really hard” or “really expensive.” Situations in which it would be really hard or really expensive to create an OER replacement belong in the “could exist, but doesn’t yet” category. As a community, we can and should be working systematically toward moving items from the “doesn’t exist yet” category into the “an open replacement exists” category. This process begins by making a special effort to resist the temptation to throw our hands up and retreat back to commercial materials when we realize one of our learning outcomes is in the “not yet” zone.