Frankenstein reproduction right

With the original objective of “protecting equality, press and informed news”, the proposed “publishers right”, or “ancilliary copyright” could very well turn into an unbounded and unrestricted ‘frankenstein reproduction right’ that goes far beyond existing copyright’s “orginality requirements”. The proposed “reproduction right” is radically different from existing copyright law where the originality requirement prevents the appropriation of facts, ideas and non-original expression which are usually not considered to be protected by copyright. Many amendments on the table today before the Legal Affairs Committee aim at prohibiting the use of even the smallest bit or snippet of any text, image or sound from a press article, from public information or from an academic text without the prior permission of the publisher. The negative impact on access to information, access to knowledge and scientific scholarship could be devastating. We are facing a clear attack on our democratic rights as European citizens.

It should be noted that this new layer of copyright does not exist in the US nor in international copyright law.

“Closed science”, “Closed access” and “Closed data”

Many elements of articles 11 and 13 constitute a frontal attack on open science programmes as supported by the Commission, the Council and the European Parliament.

New filtering, policing, monitoring and payment obligations would significantly weaken access to valuable research content produced through public funding by creating extra costs, bureaucratical burdens and legal uncertainty for the academical community. These new legal obligations of intermediary liability would enter into direct conflict with the open science and open access policies that are being widely adopted in Europe and around the world. The aim of these policies is to increase access to research results in order to maximize the use and benefits of science across all sectors. To support open access and open science, universities, libraries and research organisations manage repositories in which researchers upload scientific articles, publications and research data so that everyone can benefit and use the results of research, including other researchers, industry and the public. A new filtering and payment obligations would significantly inhibit through legal uncertainty access to valuable research content produced through public funding, and greatly slow the progress of open science.

Crippling academic “open access” repositories

This new attempt at the enclosure of knowledge threatens the movement towards widespread availability of scientific results for the good of all, and the existence of over 1250 repositories that non-profit European institutions and academic communities use to disseminate academic output. It is important to note that, in the context of academic research, the creators of the content -the scientists- do not receive any financial compensation for their articles, yet publishers often demand that researchers sign over their copyright to the publishers.

Many universities maintain that a new intellectual property right for academic publishers would do “untold damage to the ability of researchers to share their findings and reference the world of scholarship in their published works” (LERU 2016).

Building walls around open data

Open data means that there are no legal restrictions to access to or use, modification and sharing of information for any purpose, subject at most to an obligation to attribute the source. ‘Open’ also means there are no technical restrictions to access and use, e.g. the data is offered in machine readable formats, and in open format rather than in a proprietary format. In contrast, Articles 11 and 13 directly and indirectly restrict the use of open data as well as difficulting open access which are flagship strategies of the EU and its Horizon 2020 research and innovation framework.

Restricting freedom of information

A key rationale that underpins freedom of expression is that the free flow of information is indispensable as it helps ensure that the best democratic decisions are taken. The right protects not just the imparting of ideas and information, but all phases of the communication process, from the gathering of information including a right to access sources, to the communication and reception of it. The legal implications of articles 11 and 13 could mean barriers to the access of citizens to news, public interest information and institutional data, all necessary for informed democratic debate. The public sector might very well automatically own a great deal of publishers intellectual property within its own publicly owned publications. To create exclusive rights in information for publishers will necessarily interfere with the freedom of expression of others. It should be noted that the European Charter of Fundamental Rights upholds a strict standard of scrutiny in the case of news and other public interest information.

In general the EU’s copyright reform has been hijacked by the publishing industry lobby and has been turned into copyright counter-reform that aims at further enclosing knowledge at the expense of our scientific, academic and cultural commons.

Photo by Mark Deckers

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Open Education is based on three basic ideas – that education is critical for personal and societal growth; that education is, at its essence, about sharing and building on knowledge; and that digitization and the Internet have created unprecedented opportunities to improve education worldwide by enabling sharing at a global scale. At the core of Open Education is a commitment to establish a vast pool of openly shared educational resources that are accessible and adaptable to everyone. The movement also shows a deep collaborative spirit to develop educational approaches that are responsive to every learner’s needs.

The Evolution of Open Education

The Big Bang of Open Education occurred when the Massachusetts Institute of Technology (M.I.T.) announced in 2001 that it would open its entire curriculum for the world. M.I.T.’s President at the time, Charles Vest, saw the potential of such sharing and asked a faculty committee to examine how M.I.T. might use the Internet to advance knowledge and educate students more effectively. The committee recommended that the university digitally publish its entire curriculum, including undergraduate and graduate courses, on the Internet.¹ M.I.T. called its initiative OpenCourseWare (OCW).

The faculty concluded that, rather than start a market-based online education program, a better way to advance knowledge and support education would be to make its teaching materials accessible to anyone who wanted to see them. At the time, Creative Commons was establishing its free, standardized public licenses to allow copyright holders to authorize the sharing, re-use and modification of a copyrighted work.² The M.I.T. OpenCourseWare initiative decided to use the Creative Commons licenses as a way to allow users worldwide to make their own translations and share everything from physics lectures to mathematical problem-sets.

In short order, other universities, recognizing the power of open sharing to transform educational practice, began their own open courses. Soon an increasingly diverse body of openly shared educational materials, collectively called Open Educational Resources (OER), were being created by people around the world. Groups have formed to translate OER into other languages, build online repositories, and promote international cooperation.

The Opensource Opencourseware Prototype System³ has organized more than 2,000 volunteers to translate over 3,500 open courses into Chinese. The OER Commons⁴ and the Connexions project – now Open Stax College⁵ – at Rice University formed two of the earliest OER repositories. To support the growing movement, the OCW Consortium⁶ was formed in 2005 (changing its name to the Open Education Consortium in 2014). It has grown into a worldwide community of hundreds of higher education institutions and associated organizations committed to advancing open education.

More recently, governments around the world have begun promoting open education. Under a 2010 grant program, the US Department of Labor has provided US$2 billion in funding over four years to help institutions create or improve educational programs for training workers in high demand areas. All educational materials created under this grant program must be openly licensed,⁷ making it the first major government initiative anywhere to fund OER development and use. Other governments are moving forward as well. At UNESCO in 2012, the Paris OER Declaration was formally adopted.⁸ In 2013, the European Commission announced its Opening Up Europe program, which includes a major effort to boost use of OER.⁹

Users and Projects

When M.I.T. first announced its OpenCourseWare program, it was assumed that the chief users would be other faculty members in search of useful teaching materials. It became quickly apparent, however, that the majority of users of OER are individual learners engaged in both formal and informal learning. Based on site user surveys, it is estimated that more than 400 million people worldwide are accessing high quality educational materials every year. They use OER for a variety of reasons – to help them perform better at work; to enhance coursework studying; to help them on a specific project; etc. – producing benefits that go well beyond what was initially envisioned.¹⁰

With each passing year Open Education projects have proliferated and diversified. Indonesia has developed an open education strategy as a way to address its uneven educational provisioning due, in part, to the country’s geography. The government aims to use OER to share educational materials, train faculty, customize resources for local circumstances, provide distance education and share expertise.¹¹ The Virtual University of Pakistan¹² is using OER as a way to make education available to everyone, develop hybrid education models at universities, and provide additional resources for students.

In the US, many community college students drop out of school because they cannot afford the high textbook prices. In response, Maricopa Community Colleges, the largest community college district in the country, started the Maricopa Millions project. The initiative aims to save students over US$5 million in five years by using OER instead of traditional, purchased textbooks. With the support of the Center for Teaching and Learning, faculty select appropriate OER materials for their courses and students do not need to buy expensive learning materials. In the course catalog, these courses are designated as “no cost,” alerting students to the savings and raising awareness of OER as an attractive alternative.¹³

More and more governments are starting to embrace open education as a pathway to more effective and accessible education.¹⁴ The British Colombia Open Textbook Project,¹⁵ financed by the ministry of education and managed by BC Campus, is developing dozens of openly licensed textbooks in the highest-enrolled academic subject areas. All textbooks use a Creative Commons license and are available free of charge in ebook formats and at cost for print-on-demand editions. The Open Learning Initiative is a social benefit organization using OER to bring basic education to rural and impoverished areas around the world, from Nepal to Rwanda.¹⁶ Other projects, such as the Flexible Learning for Open Education, are focusing on ensuring that materials are accessible to people with disabilities and to support learners with different learning preferences.¹⁷

Future Directions

Realizing the full benefits of OER in the future will depend on people’s awareness of its valuable benefits, and on developing new initiatives at all level. To help make the OER possibilities more visible, Open Education Week¹⁸ is an annual effort in March to raise awareness about the movement and its impact on teaching and learning worldwide. A lot has been accomplished over the past fourteen years, but the growing momentum around OER suggests an even bigger, more robust movement in coming years.

Patterns of Commoning, edited by Silke Helfrich and David Bollier, is being serialized in the P2P Foundation blog. Visit the Patterns of Commoning and Commons Strategies Group websites for more resources.

Mary Lou Forward (USA) is Executive Director of the Open Education Consortium, a worldwide community of hundreds of higher education institutions and associated organizations that supports the development of open, online and digital educational projects and policies.

Photo by paul bica

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