This week on the blog I’m serializing a talk I gave for CSU Channel Islands last week as part of their Open Education Week festivities. My talk was titled, The State of Open: The Good, the Bad, and the Ugly. In this first bite-sized installment I’m going to address the major flaw in the OER definition provided as part of the recent UNESCO OER Recommendation. I’ve written about this in general terms before, but with more time to ponder I now have a much clearer – and simpler – understanding of the problem.
tl;dr – The UNESCO definition of OER requires something impossible – a copyright license that grants permission to engage in an activity that isn’t regulated by copyright law.
The definition in the recommendation as set forth in Section I. Definition and Scope reads:
1. 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, that permit no-cost access, re-use, re-purpose, adaptation and redistribution by others.
2. 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.
UNESCO (who coined the term) and many others have historically defined OER exclusively in terms of copyright status. This continues to be true in the new definition above – OER are resources that are either (1) in the public domain or (2) released under a copyright license that grants a specific set of permissions.
The first part of the problem with the definition is a fundamental misunderstanding of copyright, which is revealed in the list of permissions required for a license to be considered “open” and, consequently, for an educational resource to be considered “open.” That list of permissions is repeated in both sections I.1 and I.2 of the new recommendation, albeit in slightly different forms. For a license to be “open,” it must grant the following permissions: “no-cost access, re-use, re-purpose, adaptation, and redistribution by others.”
The second part of the problem has to do with the nature of copyright. Copyright regulates four kinds of activity:
- Making copies
- Making adaptations
- Public display or performance
- Distributing copies
When you combine parts one and two, you arrive at the problem. The list of permissions UNESCO requires to be included in an open copyright license is impossible to include in a copyright license. The table below maps the activities regulated by copyright into the language of the UNESCO definition.
| (c) Regulated Activity | UNESCO Definition |
| Making copies | N/A |
| Making adaptations | Re-purpose, adaptation |
| Public display or performance | Re-use |
| Distributing copies | Redistribution |
| N/A | No-cost access |
“Access” is not an activity that is regulated by copyright. Consequently, access can be neither prohibited nor permitted by a copyright license. Here is a brief list of activities copyright cannot regulate:
- Going for a walk
- Eating a piece of cake
- Planting a maple tree
- Driving a car
- Accessing an educational resource
Pause for just a moment and imagine what some of the consequences would be if copyright regulated access. If traditional copyright protection prohibited no-cost access, libraries could not exist. You would be prohibited from having no-cost access to books under standard copyright protection. Only specially licensed materials could be made available in a library – materials with a copyright license that specifically permitted no-cost access. Obviously copyright doesn’t work this way.
The UNESCO definition of OER requires something impossible – a copyright license that grants permission to engage in an activity that isn’t regulated by copyright law. It’s worth understanding that if a country, organization, or other entity were to adopt and strictly adhere to the UNESCO definition of OER, only works in the public domain would qualify as OER (since it’s impossible for a copyright license to meet the requirements necessary to be “open” according to the UNESCO definition).
At the same time the UNESCO definition requires copyright licenses to include a permission they cannot grant, it also fails to require them to include the most important permission they can grant – permission to make a copy. Without permission to make a copy, it is quite impossible to exercise the permissions to adapt, re-use, and redistribute.
This problem could have been avoided if the final recommendation had maintained the language of the last public draft, which was based on the 5Rs. The 5Rs specifically and purposefully map directly into the activities regulated by copyright. All the permissions required to be granted by a copyright license under the 5Rs definition can be expressed in a copyright license.
| (c) Regulated Activity | 5Rs Definition |
| Making copies | Retain |
| Making adaptations | Revise, remix |
| Public display or performance | Reuse |
| Distributing copies | Redistribute |
Until UNESCO is able to change their definition, I would encourage you to consider a definition based on the 5Rs like the one at opencontent.org/definition/ or openeducationalresources.org.