Paul Stacey


Access Copyright’s Royalty Demands Spark Interest in OER

Here in Canada a Canadian Copyright Licensing Agency called Access Copyright has been operating since 1988. Access Copyright establishes licensing agreements that provide users with the ability to copy from millions of copyright protected materials while ensuring over nine thousand creators and publishers are fairly compensated. Access Copyright license agreements have traditionally been for the rights to photocopy books, magazines, newspapers and other publications. Access Copyright licenses this content through a combination of agreements with other rights licensing agencies and the Canadian divisions of global publishing companies.

These rights have been essential to education institutions where instructors photocopy either parts of publications or entire articles and provide them to students as course materials. Access Copyright estimates that 250 million pages of textbooks and other materials are being copied every year in Canada’s primary, secondary and post-secondary sector.

Access Copyright has been charging Canadian provincial governments, school boards, colleges and universities an annual tariff amounting to over $30 million a year. As per Copyright Board of Canada the tariff is charged on a per student basis and works out to about $5.16 per student.

All of this is subject to major change in the context of the digital age where reprography via photocopying is becoming increasingly obsolete. Copyright is a hot topic and organizations like Access Copyright, who have not traditionally been securing digital rights from creators and publishers, are faced with some significant challenges.

In the digital age there is a growing belief that rights are better handled directly by creators without using third party intermediaries like Access Copyright. In addition, in the US and Canada, there are allowable exceptions to copyright called fair use in the US and fair dealing in Canada. Access Copyright cannot charge licensing fees to content that educational institutions have a right to access for free.

All this hit the fan when in June 2010 Access Copyright submitted to the Copyright Board a Statement of Proposed Royalties to be collected by Access Copyright from post-secondary institutions for the years 2011-2013 for the reprographic reproduction in Canada of works in its repertoire. This statement covered digital copies and proposed a tariff of $45 per student for universities or $35 per student for all other educational institutions. The statement specifies conditions regarding digital copies and details extensive reporting requirements.

The statement caused an uproar on many fronts.

The Canadian Federation of Students together with the Canadian Association of University Teachers objected.
The Canadian Alliance of Student Associations objected.
The Association of Canadian Community Colleges objected.
The Association of Universities and Colleges of Canada objected.
The BC Association of Universities and Institutes objected.
The Government of Alberta objected.
And on and on.

In all over 101 objections were submitted. Interestingly Access Copyright response to the objections was to ask the Copyright Board of Canada to dismiss all of the objectors except AUCC and ACCC.

For some a key objection was the dramatic increase in per student charges.

Dave Molenhuis, National Chairperson of the Canadian Federation of Students said in a press release. “The proposal treats students as cash cows and ignores the fair dealing rights granted through the Copyright Act and affirmed by the Supreme Court of Canada.”

Amazingly, from my point of view, in asking for the increase in tariff from $5.16 to $45/$35 per student Access Copyright hasn’t submitted any financial justification or business case rationale for the increase. Nor have I seen anything that says they have acquired the digital rights to works or that the creators and publishers they represent want them to act as digital work intermediaries on their behalf.

If this is a cash grab its worth following the money. How does Access Copyright collect and distribute royalties?

Access Copyright publishes a schedule of distribution payments. Of the $30 million it collects Access Copyright holds back 20% (~$6 million) to cover its own administration and a further 1.5% (~$450,000) which goes to Access Copyright’s cultural fund which goes to promote and support Canadian culture through the provision of grants intended to encourage the development and dissemination of published Canadian works.

Howard Knopf notes that Access Copyright budgeted $3.1 million for lawyer and other professional fees in 2010 and that with 1.5 million students registered in universities and colleges in Canada if the new tariff goes through Access Copyright’s revenues from universities and colleges alone jumps to about $60 million.

Access Copyright’s distribution of royalites specifies that two thirds of Access Copyright royalties go to the rightsholder based on Access Copyright having actual knowledge that their copyright protected work was copied under an Access Copyright license. Licensees (eg. colleges and universities) are required to provide full reporting including complete bibliographic information on all the works they copy, including the number of pages they copy and the number of times they copy these pages. Royalty payments are made to rightsholders of the works appearing in these reports.

One third of Access Copyright royalties are collected for copying impossible or impractical to collect information. This portion of the tariff is calculated based on the number of full time employees or an operating budget scale. Access Copyright distributes these royalties 50/50 to publishers and creators.

I don’t think anyone objects to publishers and creators getting fair compensation for their work. However, colleges and universities are currently operating in highly constrained financial circumstances. Furthermore tuitions and student debt has been rapidly escalating. Going digital ought to reduce costs not increase them but Access Copyrights tariff seems intent on going in the other direction forcing institutions and students to bear the burden of costs for which its made no justification.

Unreasonable royalty fees were not the only objections. For me the best summary of objections have come from the Canadian Library Association (CLA). CLA’s objections include:

  • Failure to recognize existing user rights and exceptions
  • Overly inclusive and inapplicable definitions
  • Unreasonable royalty fees
  • Unwarranted anti-circumvention provision
  • Unreasonable conditions placed on the use of repertoire works
  • Unreasonable reporting requirements
  • Unreasonable requirements of access for Survey purposes

CLA’s letter of objection concludes:

“Access Copyright‟s tariff seeks to require payment of an unreasonable amount of royalties for the use of works well beyond its previous licenses, beyond the scope of their legitimate remit under the current law and without regard to the rights of education institutions under the Copyright Act and applicable case law. In addition, it imposes onerous and often unenforceable new conditions on educational institutions and requires actions from them which may well be in contravention of existing legislation and contracts. CLA urges the Copyright Board not to approve any tariff without substantial changes in accordance with these objections and without a significant reduction in the royalty rates.”

I’m not going to go into every one of these objections but let me highlight just a couple more. In addition to unreasonable royalties another area of contention is around the breadth of Access Copyright’s definition of a copy. The three most contentious definitions of a copy Access Copyright included in their statement are:

  • projecting an image using a computer or other device
  • displaying a Digital Copy on a computer or other device, and
  • posting a link or hyperlink to a Digital Copy

Claiming that a hyperlink is a digital copy is a good example of how excessive Access Copyrights claims are. Linking and displaying are not part of Canada’s copyright act and as such are not subject to copyright tariff. Teachers, students, institutions and taxpayers should not have to unnecessarily pay millions of dollars per year to exercise rights that they already have. It appears that Access Copyright is overstepping its mandate as it tries to move in to the digital sphere.

In an era where everyone is used to acquiring digital works through services like iTunes it seems ludicrous, at least to me, that the process Access Copyright proposes to use for tracking and collecting tariffs is essentially manual, labour intensive and place the onus entirely on the licensee to fully disclose every copy it makes. For example if an instructor emails students a digital copy of a document the educational institution is required to compile a record and report back every such e-mail.

One can only hope that the Copyright Board of Canada will bring some reason to all this and balance Access Copyright’s efforts to generate dollars for the creators and publishers they represent with the rights of the Canadian public for fair access. However, in December 2010 they approved Access Copyrights request for an interim tariff and amazingly conclude this announcement by saying: “This decision is being issued without reasons because the Board considers this matter to be urgent.” Yikes that doesn’t come across as a good example of public accountability.

In light of all this some institutions are deciding to no longer be Access Copyright licensees and instead to go their own way. Athabasca University has announced it will not renew the Access Copyright license and in doing so says they plan to “make more extensive use of open educational resources (OERs), material such as lectures, texts, lessons and podcasts produced by other universities and made freely available for use. Where the use of OERs isn’t possible, the university will approach copyright holders directly for permission to make use of their work.”

Here in British Columbia the University of British Columbia’s position regarding Access Copyrights new tariff can be found here. As part of its response and its desire to take a lead on promoting responsible use of copyrighted material UBC is developing a License Information Database which answers many questions students and instructors have about using the Library’s resources.

The University of Northern BC, like Athabasca, has decided they will not renew the Access Copyright license. UNBC has invited me to give presentations there in early February helping faculty and staff explore the alternatives. I’ve agreed and submitted the following as what I propose to do.

Presentation #1
Title: The Opportunity Side of Open
This presentation will explore the opportunities associated with converging forces of open source software, open access research publishing, open government/data, open educational resources, and open pedagogies. The combined impact of these “open” initiatives is of growing strategic importance in higher education as institutions look for alternative and creative ways of enhancing their education offerings through digital technologies. (For more on this see my University of Open blog post.)

Within this larger strategic context of open particular emphasis will be placed on the potential of open educational resources as a creative alternative to traditional Access Copyright sourced course materials. Intellectual property, copyright and licensing aspects of open educational resources will be described and demystified. Open educational resource examples from within BC and from around the world will be used to illustrate the rich and diverse range of resources already available for free and immediate use.

Tips on sourcing open educational resources and using them in whole or in part will be provided including urls, web sites and search engines. This presentation will conclude with opportunities for Q&A and dialog with the presenter about the opportunity side of open. An applied/hands on session will follow providing more in depth opportunities for participants to explore, discover, and dissect open educational resources pertinent to their academic domain of interest.

Presentation #2
Title: Finding and Using Open Educational Resources
This session takes concepts and ideas from the first presentation and moves them into a practical and applied context. It is structured as a guided exploration of how to find and use open educational resources. Using web-based open educational resource aggregators and repositories participants will be invited to find and select resources pertinent to their academic field of study and instruction. Searching, previewing and downloading resources will all be demonstrated. The potential to use open education resources for everything from a course supplement, to a course component, to a complete course, to curricula for an entire credential will be explored. Benefits associated with open education resource use from student, instructor and institution perspectives will be discussed. Open education resource license obligations such as attribution, and share-alike will be described. Open educational resource technical format, instructional design, and quality aspects will be considered. This session will conclude with an overview of current trends and directions associated with open education resource development and use around the world.

Its important to acknowledge that going your own way is not an effort to avoid paying appropriate rights fees. It simply means that the model being proposed by Access Copyright is not appropriate, especially for digital works.

So what are the alternatives? Here are the ones I see:

  • Not all copying is a contravention of the copyright act. The Fair Dealing copyright exception allows copying portions of works for the purpose of study.
  • Use site database licences that librarians already have in place
  • Use open access licences to scholarly research
  • Negotiate licenses directly with creators or publishers
  • Use open educational resources and public domain materials

I’ve written widely about open educational resources elsewhere in this blog and think that openly licensed materials hold great potential as a significant alternative.

What do you think about Access Copyrights statement of proposed royalties?

Are there additional alternatives to the ones I’ve listed above?



The University of Open

I enjoyed the University of Utopia as a provocation. However, as the authors acknowledge, at this point the University of Utopia is largely a critique rather than an alternative utopian vision. That got me thinking about how easy it is to critique something and how hard it is to actually put forward an alternative.

Over the past two years I’ve been noticing a lot of commentary, articles, and conversation lamenting how out of step traditional institutions are with contemporary students and forecasting the demise of the university. Here are a few examples:

End the University as We Know It

The Impending Demise of the University

DIY U: Edupunks, Edupreneurs, and the Coming Transformation of Higher Education

Why Free Online Lectures will Destroy Universities Unless They Get Their Act Together Fast

I read all of these with great interest and have considerable empathy for much of the disenchantment I hear expressed. However, my interest isn’t around the doomsday portent but in unearthing substantive descriptions of alternatives.

I’ve been playing around with some alternatives in my own mind and thought I’d work one of them out here in public. The alternative I’m imagining recasts the traditional “open university” in contemporary terms. It synthesizes multiple related “open” initiatives into a common core operating principle that defines the university and the education it provides.

I’ve started imagining a University of Open.

The University of Open:

  • uses open source software for its administration and for teaching and learning
  • involves students and faculty in research which is published in open access journals for all to see and use
  • operates in an open government/open data way whereby the learning analytics and data about the institution are open and available
  • offers credential education through programs built using open educational resources developed in-house and reused from elsewhere
  • involves all students and faculty as active contributors in one or more of the open communities that open source software, open access, open government/data, and open educational resources rely on
  • expands on the traditional no-entry requirements open-door policy of an “open university” to intentionally and strategically utilize new and emerging open pedagogies

Let me contextualize these bullet points with particulars.

Open Source Software (OSS)

Open source software is computer software whose source code is open to others to study, change, and improve. The fact that the code is open means it can be easily and quickly adapted. Customization and enhancements do not necessarily require large investments nor are they dependent on a proprietary vendors implementation decision or timeline.

There are lots of open source software applications in use in higher education. Applications such as Moodle, MediaWiki, WordPress, Sakai, and Drupal are all open source software applications serving the learning and collaboration side of higher education. Each of these open source software applications have developer communities (Moodle Development Community, MediaWiki Developers, WordPress Developer Documentation, Sakai Community, Drupal Contributors) that are open to anyone to participate in. Source code bugs, improvements and feature requests are all openly shared and managed within these communities creating a transparency around development that is remarkable.

Open source software also lends itself well to higher education institutions joining forces to form community based developer networks collaborating on development of key applications particularly for administrative systems. The open source software application Kuali is being developed by a consortium of universities and companies to handle administrative and operational tasks like general accounting, purchasing, salary and benefits, budgeting, asset management and grants. The system is designed around modules that enable it to be tweaked to work with other existing applications. As part of the consortium there are services for installation, integration and support.

openSIS is another open source software application built to manages student demographics, scheduling, attendance, grades, transcripts, and health records, and its parent company makes add-on modules to support additional features like disciplinary tracking, billing, food service, and bulk email/SMS messaging for emergency contact. In December 2010 the openSIS developers were being inundated with emails and phone calls from users seeking openSIS + Moodle integration to help them run their virtual schools or hybrid schools more efficiently.

There are lots of other examples including the JaSig community developing uPortal, and CAS (Central Authentication Services) and Internet2 – a consortium led by universities working in partnership with industry and government to develop and deploy advanced network applications and technologies including products such as Shibboleth and Grouper

One key aspect of open source software development is that a large number of the participants in the developer communities are also users of the software. This removes the frequently wide gap between what users want and proprietary vendors are willing to provide.

In the University of Open students, faculty and administrators don’t just use these open source software applications they contribute to their development by participating in the developer communities. Students, faculty, and administrators at the University of Open are active investors in open. Faculty and administrators are expected to devote a certain percentage of their time to open developer communities but students receive “credit” for active contributions.

Open Access

Open access publishing is free, immediate, permanent online access to full scholarly research articles for anyone to access, read, and use. Since the 1990′s, with the advent of the Internet, open access has become a bit of a social movement in academia. The basic underlying principle is that publicly funded research should be freely shared with the public for the common good.

The impetus to move in this direction has been driven by two additional forces. First the cost to produce traditional print-based scholarly journals has been rising rapidly. Publishers recoup those costs by charging libraries a licensing fee to access the journal. However, librarian budgets have not been dramatically increasing and many libraries cannot afford to pay. The result has been decreasing access to research publications. The second force is the potential enabled by the world wide web. Digital publication means that it is now possible to publish a scholarly article and make it instantly accessible anywhere in the world over the Internet. The marginal cost of this distribution is $0.

Some academics and researchers open access publish through what is called self-archiving where authors place their article online in a place where it can be freely accessed by all. Some publishers are now doing open access journal publishing where they provide open access to their articles online, recouping their expenses by charging the author a fee for refereeing and publishing the article instead of the library for accessing the article.

At the University of Open all students and faculty are engaged in research and openly publish their research results through open access methods.

Open Government/Open Data

Open government/open data is a policy and legal framework to open up access to publicly held information, promote transparency, and enable wider economic and social gain. Open government aims to stimulate creative and innovative activities around the use of publicly held information to deliver social and economic benefits. Open government makes government more transparent and open in its activities, ensuring that the public are better informed about the work of the government and the public sector. And perhaps most importantly open government seeks to create more civic and democratic engagement often through social networking tools and voluntary and community activities.

The UK government is one of the leading practitioners of open government. Their data.gov.uk web site provides some great examples of the kind of economic and social gain possible. They have even launched competitions such as Show Us A Better Way in the hopes that new uses for public information in areas of criminal justice, health and education can be found. See the winning idea here. Similar initiatives are happening elsewhere such as Apps for Democracy.

Closer to home the cities of Vancouver, Edmonton, Ottawa and Toronto have recently joined forces to collaborate on an “Open Data Framework“. The Open GovWestBC conference just took place in Victoria on November 10, 2010. The provincial government is increasingly making use of social media and is revamping public service with the first defining principle of the “Citizens @ the Centre: BC Government 2.0” paper being “We will empower citizens to create value from open government data.”

Open government/open data practices have yet to emerge in the context of educational institutions but in my alternative vision the University of Open operates in an open government/open data manner. The University of Open opens up access to public data it gathers and seeks to engage its members and the public in the creative and innovative use of that data to further the education it provides. One emerging area where this has tremendous potential is around learning analytics – the use of intelligent data, learner-produced data, and analysis models to discover information and social connections, and to predict and advise on learning.

Open Educational Resources

Open Educational Resources (OER) are learning materials that are freely available under a license that allows them to be:

  • reused – you can reuse the content in its unaltered / verbatim form
  • revised – you can adapt, adjust, modify, or alter the content itself
  • remixed – you can combine the original or revised content with other content to create something new
  • redistributed – you can make and share copies of the original content, your revisions, or your remixes with others

Implementation of an open educational resource approach involves licenses, software applications (store, search distribute, …), processes (design, development, …) and resulting content (full courses and course components such as learning objects, labs, textbooks, manuals, animations, simulations, and videos).

An emerging development in OER is open textbooks. An open textbook is an openly-licensed textbook offered online by its author(s). The open license sets open textbooks apart from traditional textbooks by allowing users to read online, download, or print the book at no additional cost. Open textbooks help solve the problems of the high cost of textbooks, book shortages, and access to textbooks as well as providing the capacity to improve local teaching and learning. Open textbook initiatives are making significant headlines these days as the education sector grapples with tight financial times. Here’s a sampling of the headlines:

Gov. Schwarzenegger Launches First-in-Nation Initiative to Develop Free Digital Textbooks for High School Students

Washington’s 2-year colleges out to beat high cost of textbooks.

Texas seeks open textbooks.

The University of Open develops new, and makes use of existing, open educational resources to create complete academic programs. University of Open credentials are based entirely on open educational resources. The University of Open educational resources are open to all including prospective students, existing students, and alumni students. Students, faculty and administrators at the University of Open all engage in developing open educational resources as part of their day-to-day activities. The University of Open provides credit to students for knowledge creation as the ChemWiki initiative does by giving students actual credit for contributions students make to the ChemWiki. Alumni are encouraged to continue their involvement with the University of Open by contributing new and improving existing open educational resources.

Open Pedagogies

I’ve deliberately called my alternative vision the University of Open to avoid confusion with what is now a long standing tradition of “open universities”. Historically, open universities have an open-door academic policy that entails no or minimal entry requirements. Open universities often base their teaching method on correspondence study or distance education where students autonomously pursue their learning in a self-paced way from home submitting assignments when ready to be marked by tutors.

In addition to minimal program admission requirements some open universities, such as BC’s own Thompson Rivers University Open Learning offer continuous enrolment, prior learning assessment and recognition credits for learning from life and work experience, and credit transfer to and from other universities. Many open universities were created to offer education opportunities to under-represented groups in higher education – school leavers who missed out on education while young, people in remote communities without the means or inclination to move to an urban setting to access a university campus, people with disabilities or mental health issues, retired people wanting to explore new interests, people wanting to change their career entirely, …

The University of Open embraces this tradition and extends it further. The University of Open is open to enrollment for students from anywhere around the world. The University of Open is open 24/7, has no place-based physical campus, and no residency requirements. Most significantly the University of Open moves the traditional correspondence model of education forward by adopting open pedagogies that leverage educational technologies, online instructional design, and emerging innovative ideas around open practices of teaching and learning.

Of all the “open” aspects of the University of Open, open pedagogies is the least developed. There is no “community” of open pedagogues for students and educators to participate in – yet. But here are some of the current explorations I see happening in the open pedagogies area.

Openly Public Teaching and Learning
I’m starting to see examples here in BC, and elsewhere, of educators teaching using blogs and wikis that can be seen by the public. The course syllabus, modules, activities, assignments and discussion are publicly visible. Students are officially enrolled as per any course but their learning is in the open, publicly viewable and in some cases the public is invited to interact, comment on, and contribute to student work. This moves education from a private matter to a public one. A good example is:
ETEC 522 Ventures in Learning Technologies

Massively Open Online Courses
Massively open online courses allow anyone to participate freely or you can register and enrol for formal recognition. Instructors only formally mark the course assignments submitted by for-credit students. Those freely participating can be as passive or active as they want and are encouraged to do all the readings and assignments, participate in discussions, and post papers for other students to view and comment on. George Siemens and Stephen Downes have been early innovators in this area. Examples of massively open onliine courses include:
Connectivism & Connective Knowledge
Personal Learning Environments Networks and Knowledge 2010 and
Jim Groom’s Digital Storytelling which starts Jan 10, 2011 looks amazing.

Open Study Groups
Peer 2 Peer University (P2PU) an online open education initiative that provides free and open courses outside of the traditional university model. P2PU courses are offered by volunteers who work with experts and community members to develop a comprehensive course using open materials and an accompanying social structure. They describe themselves as “an online community of open study groups for short university-level courses” or “online book clubs for open educational resources”.

The University of Open

I expect you, like me, have been aware of many of these “open” initiatives. But, as yet, no one has really put them together as an inter-related whole. Its a bit like the elephant parable where a group of blind men touch an elephant to learn what it is like, but with each only feeling a part their resulting understanding is fragmentary and incomplete. All I’ve done is assemble each of these different open components into a cohesive whole – the University of Open.

Open source software, open access publishing, open government/data, open educational resources, and open pedagogies all share a common underlying philosophy. I think there is potential for untapped synergy by combining them together and pursuing them collectively. If the traditional university is doomed is the University of Open a possible alternative?




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