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Some Very Bad News about the UNESCO OER Recommendation

The tl;dr

I recently wrote a brief essay about the wonderful new UNESCO OER Recommendation. That piece was based on the text of the most recent public draft (which I will call the “public draft” below), which many of us believed to be the document the 40th Congress unanimously approved. However, a number of extraordinarily significant changes were made to the document between the public draft of the document and the version of the document on which members voted (which I will call the “final version” below). For those of you who don’t want to read the full analysis below, here’s the key takeaway:

Imagine what would happen if making copies of OER was illegal. Under the definition of OER now adopted unanimously by UNESCO member states, it can be.

Late Changes

I’ve been losing sleep over this for days.

In my essay last week, I heaped my first and most lavish praise on the definition included in the public draft. Let’s pause and reflect on why it matters how UNESCO defines OER in its Recommendation. Section II.8 of the resolution (included before the Annex, which is the Recommendation proper), states:

Reiterating the need for a standard-setting instrument concerning Open Educational Resources (OER) in the form of a recommendation,

Recognizing that such a standard-setting instrument could be an essential tool to strengthen international cooperation on Open Educational Resources (OER) in support of the implementation of the 2030 Agenda for Sustainable Development…

Recommends that Member States apply the provisions of the Recommendation concerning Open Educational Resources (OER) by taking appropriate steps, including legislative steps, in conformity with the constitutional practice and governing structures of each State, to give effect within their territories to the principles of the Recommendation.

In other words, UNESCO means for this Recommendation to (1) set an international standard for how OER are defined, (2) provide the basis for national OER policies and related efforts, and (3) provide a framework under which international cooperation on OER can occur. And remember that member states unanimously approved the Recommendation.

So what are the extraordinary changes that were made between the public draft and the final version? My focus here is only on the changes relating to the definition of OER.

The public draft included a definition of OER as follows:

Open Educational Resources (OERs) are teaching, learning and research materials in any medium – digital or otherwise – that reside in the public domain or have been released under an open license… Open copyright licenses provide the public with free and perpetual permissions to: 

(a) Retain – the right to create, own, and control copies of the content;
(b) Reuse – the right to use the content in a wide range of ways;
(c) Revise – the right to adapt, adjust, modify, or alter the content itself;
(d) Remix – the right to combine the original or revised content with other material to create something new;
(e) Redistribute – the right to share copies of the original content, the revisions, or the remixes with others.

OER are defined in terms of copyright – either (1) in the public domain or (2) released under an open license. And the characteristics of a license that make it an “open license” are a free and perpetual grant of permission to engage in the 5R activities.

The final version includes this definition of OER:

Open Educational Resources (OER) are learning, teaching and research materials in any format and medium that reside in the public domain or are under copyright that have been released under an open license… Open license refers to a license that respects the intellectual property rights of the copyright owner and provides permissions granting the public the rights to access, re-use, re-purpose, adapt and redistribute educational materials.

OER are still defined in terms of copyright – either (1) in the public domain or (2) released under an open license. But the characteristics required to make a license an “open license” have been absolutely eviscerated. 

The strong requirement that the public be permitted to retain OER – that is, “the right to create, own, and control copies of the content” as per the public draft – has been replaced in the final version with the indescribably impoverished requirement that the public be allowed “access” to OER. 

“Access” is Nowhere Near Sufficient

Over five years ago I began writing and speaking about the problem with promoting “the ability to access” over “the permission to make, own, and control a copy.” This exact problem is literally the reason why, after several years of 4Rs, I added “retain” as the 5th R. I’ll summarize the logic here very briefly and refer the reader interested in more detail to The Access Compromise and the 5th R.

The emerging business models of Netflix, Hulu, Spotify, and academic journal publishers signaled a clear shift from models where individuals and organizations own their own copies of movies, TV shows, albums, and journals to one where publishers want us to perpetually rent access to these. This shift helped me see that our OER work had always assumed we would have permission to make a copy of the materials in question, and that this assumption was by no means safe to continue making. I added retain as the 5th R after coming to understand that retain is actually the fundamental permission that must be granted with regard to an open educational resource. How am I supposed to revise or remix something if I’m not allowed to make a copy of it first? Exactly what am I supposed to redistribute if I’m not allowed to make copies? 

Imagine if the primary permission you had in regard to an OpenStax textbook was “permission” to link people to the OpenStax website, where students could access the textbook. Imagine if it were illegal to make a copy to put in your LMS. Or if it was illegal to make a copy by printing. Or if it was illegal to make a copy you could revise to better meet your students’ needs.  Imagine if access was all you had. In short, imagine what would happen if making copies of OER was illegal. Under the definition of OER now adopted unanimously by UNESCO member states, it can be.

You may want to argue that permission to copy is implied in the explicitly granted permissions to re-purpose, adapt, and redistribute. It absolutely is not. One need only look to the Digital Millennium Copyright Act to see an example of this being true. The DMCA criminalizes the circumvention of security restrictions in order to gain access to a copyrighted work – even when the use you want to make of that work does not violate copyright law. This makes it illegal, for example, to write open source software for playing DVDs – even for the purposes of playing DVDs you properly purchased and legally own – because you don’t have a license to use the proprietary encryption technology for DVDs. In short, having one set of permissions does not automatically entitle you to a second set of permissions necessary to exercise the first. You can’t argue that permissions to re-purpose, adapt, or redistribute in the Recommendation’s definition of OER also grant (by implication) a separate and additional permission to copy.  

Implications

In terms of practical implications, the dramatic downgrading of “retain” to “access” in the OER Recommendation creates a policy loophole large enough to drive a multi-national publisher through. For example, imagine that a significant amount of public money is made available by your country’s government for the creation of OER, and anyone can bid to receive some of that money and create OER. (As I wrote in my essay last week, I’m a big believer in this model of thinking about OER as publicly-funded infrastructure, like roads.) What kind of mayhem might result if your country were to operate that program under the UNESCO OER Recommendation’s guidelines? 

In the past we’ve seen examples of how poorly constructed definitions can create chaos in these kinds of grant programs. For example, take some time to read about non-profit publisher Great Minds’ lawsuits against FedEx and Office Depot. Great Minds won contracts from New York State in 2012 to create OER K-12 curriculum materials. Because the terms of the contract were underspecified, Great Minds was able to license the OER they produced with public funds under a CC license bearing the NC condition. Later, some school districts who adopted their materials wanted copies to provide to their students. Rather than paying a secretary to spend all summer standing at the school’s copy machine, the districts paid FedEx and Office Depot to make the copies. Great Minds claimed this was a violation of the NC condition and starting suing. Great Minds is, of course, losing decisions and appeals in both cases, but this is an example of the kind of mischief that can occur when funding programs have poor definitions of OER. 

Were a national or state government to operate an OER funding program under the framework of the OER Recommendation, I predict that the following would absolutely happen. Some organization who won a bid would create a textbook and then license it with the following custom license:

You are expressly prohibited from copying this resource in full or in part. You are expressly permitted to re-use, re-purpose, adapt and redistribute this resource in any manner that does not require you to first make a copy. 

A textbook released under this license clearly qualifies as an open educational resource under the definition of OER that UNESCO member states have now unanimously approved. The funder would have no recourse.

… and One More Thing

I’ll raise this issue briefly but not explore in any depth. If you were paying close attention, you may also have noticed that the requirements that an open license be free and perpetual, which were clearly articulated in the public draft, have been inexplicably removed in the final version – creating the possibility that an author could potentially charge an annual fee for a license to materials and still call them OER. We can argue over whether the use of “no-cost” in the preceding paragraph in the Recommendation mitigates this issue or not. But why would the editors of the final version go out of their way to remove the explicit requirement that an open license be both free and perpetual? I am completely baffled by this and the other changes to the definition.

Conclusion

It is critically important to read language like that of the OER Recommendation adversarially. If money becomes available under a funding program based on the Recommendation, many of the organizations who apply for that money will absolutely be asking themselves “how much can I get away with and still comply with these rules?” Unfortunately, under the current language, it seems like one could get away with a lot and still call what they’re doing OER. And can the community call anyone’s behavior “openwashing” if it conforms with the international standard-setting instrument’s definition of OER?

Being unfamiliar with UNESCO’s processes, and with no view into the politics that led to such dramatic changes to the definition, I have no idea what kind of opportunity there is to fix the Recommendation. Particularly now that it’s been unanimously adopted by the member states. And it breaks my heart. We’ve missed a huge opportunity here.

And yes, definitions matter.