iterating toward openness

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. I posted the first installment yesterday, explaining how a fundamental failure to understand copyright makes the definition of OER in the new UNESCO recommendation nonsensical. In this second installment, I want to describe how it appears that many in the OER community have taken their eye off the ball.

It seems like much of the OER community has all but forgotten about student learning. The community’s increasingly myopic focus on affordability leaves little space to ask questions about the impact of OER adoption or OER-enabled pedagogies on student learning or other measures of student success. While every OER initiative in US higher ed measures cost savings, the initiatives that explore the implications of OER adoption for student learning are few and far between. Affordability seems to have become the end goal of OER advocacy, instead of being an important step on the path to improving student learning.

The last decade of research on OER, cost savings, and student learning has clearly established two findings:

• Using OER does consistently and reliably lower the cost of course materials
• Using OER does not consistently and reliably improve student learning or other measures of student success

This shouldn’t come as a surprise. Researchers from OpenStax have cleverly demonstrated that increasing access to course materials is not likely to measurably improve student success. But we desperately need consistent and reliable improvement in student learning and other measures of student success.

Just how desperately do we need these improvements?

Success rates among students seeking four year degrees are unacceptably low. As shown in the following visualization, the overall graduation rate from a four year degree program is only 60% even when measured after six years.

Graduation rates from first institution attended for first-time, full-time bachelor’s degree-seeking students at 4-year postsecondary institutions, by race/ethnicity and time to completion: Cohort entry year 2010

Success rates among students in two year degree programs are abysmally low. As shown in the following visualization, the overall graduation rate from a two year degree program is only 30% even when measured after three years.

Graduation rate within 150 percent of normal time for degree completion from first institution attended for first-time, full-time associate’s degree/certificate-seeking students at 2-year postsecondary institutions, by race/ethnicity: Cohort entry year 2013

Affordability is certainly important, but is affordability our end goal? If affordability is our end goal, our “hang the ‘Mission Accomplished!’ banner” moment will look like this: “30% graduation rates, now more affordable!”

Improving affordability is a critically important step, but it should not be our end goal. Our end goal must be consistently and reliably improving student learning and other measures of student success. These success measures only improve consistently and reliably when faculty and student engagement in effective teaching and learning practices increases. And changing faculty’s pedagogical habits and students’ study habits is much more complicated than changing the course materials they use.

When we are truly committed to using OER as a lever to improve student learning and other student success measures – that is, when our eye is back on the ball – tracking and reporting changes in these metrics will be as common for OER initiatives as estimating and reporting cost savings is today. Yes, these are certainly harder to measure than cost savings. But they’re also far more important.

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.

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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.

Last October Doc Searls gave the Ostrom Memorial Lecture for the Ostrom Workshop at Indiana University. In his lecture he carries on what I believe to be an incredibly unfortunate tradition. I’ll call it, “the dance of the not commons.” It’s an incredibly simple dance. Step one (right foot): state that something (e.g., the internet, knowledge, OER) is a commons. Step two (left foot): immediately enumerate the many ways that the thing you just called a commons is totally, completely, orthogonally different from a commons. Here’s the core of the dance, with my color commentary in parentheses.

In economic terms, the Internet is a common pool resource; but non-rivalrous (he has to say this because common pool resources are by definition rivalrous) and non-excludable to such an extreme that to call it a pool or a resource is to insult what makes it common (not only does the internet fail the test of being a common pool resource, it does so to the most extreme degree imaginable)….

Not understanding the Internet can result in problems similar to ones we suffer by not understanding common pool resources such as the atmosphere, the oceans, and the Earth itself (how can we talk about the dangers of not understanding common pool resources when the argument begins by taking something that is clearly, blatantly, obviously not a common pool resource, and calling it one?).

But there is a difference between common pool resources in the natural world, and the uncommon commons we have with the Internet. See, while we all know that common-pool resources are in fact not limitless (because by definition they are excludable and rivalrous) —even when they seem that way—we don’t have the same knowledge of the Internet, because its nature as a limitless non-thing (because the internet is non-excludable and non-rivalrous) is non-obvious (apparently!).

Do you see how awkward the dance is? How impossible it is to do this dance without stepping all over yourself?

As originally conceived, commons formed around rivalrous, excludable, scarce resources – aka common pool resources. Much of the scholarship around commons focused on governance and other collaborative methods of insuring that the scarce common pool resources around which commons communities formed were not destroyed or depleted.

But then a terrible choice was made.

In the first decade of our new millenium, Elinor Ostrom and Charlotte Hess—already operating in our new digital age—extended the commons category to include knowledge, calling it a complex ecosystem that operates as a common: a shared resource subject to social dilemmas. They looked at ease of access to digital forms of knowledge and easy new ways to store, access and share knowledge as a common. They also looked at the nature of knowledge and its qualities of non-rivalry and non-excludability, which were both unlike what characterizes a natural commons, with its scarcities of rivalrous and excludable goods. A knowledge commons, they said, is characterized by abundance.

Why insist on using the same term – commons – when the nature of the underlying phenomenon, and the problems that its nature gives rise to, are so completely, fundamentally different? Yes, “natural commons” and “knowledge commons” as they’re defined above both deal with “a shared resource subject to social dilemmas.” But insisting on referring to the social issues surrounding resources that are non-excludable and non-rivalrous (which in every other circumstance we would call “public goods”, not common pool resources) – resources which are abundant instead of scarce – as being a “special kind of commons” is like insisting on referring to an automobile as a special kind of carriage – a horseless carriage. Yes, both are “conveyances that move people from one location to another.” But insisting on using the language of horse and carriage to describe an automobile creates all kinds of intellectual problems for those who insist on doing it. The choice to use the wrong language causes us to also use the wrong mental frameworks, which leads us to try to solve problems that don’t actually exist instead of the very real problems that do.

The problems the open education community faces with regard to OER are not the problems of common pool resources – problems of overuse and depletion that we solve through shared governance and accountability. There is no sense in which the open education community needs to form a governance committee that carefully limits public access to the textbooks produced by OpenStax in order to make sure there’s always enough OpenStax to go around. That’s just not a thing. OER are not a common pool resource and the community of creators and users that have formed around them are not a commons.

The problems we face with OER are the problems of public goods – issues related to under-production and free-riding. The world needs much more OER. But what individual or organization would spend the time and effort necessary to make OER when they will just be given away for free, and there will be no opportunity to recover the investment of time and effort? And why would anyone ever pay the creators or maintainers of OER, when you can legally use OER for free? (When’s the last time you personally donated to another person or organization to support their creation and maintenance of OER?)

If you think OER are a commons you are focused on solving the wrong problems – problems that don’t actually apply to OER. OER and the community of creators and users that have formed around them are a public, not a commons. We need to wake up and start solving the actual problems associated with OER – public goods problems – instead of wasting our energy doing the dance of the not commons.