Claire Fontaine 1

Open Education Policy

To: Chief Technology Officer (CTO), Obama Administration

Arne Duncan, Secretary of Education, Obama Administration

From: Claire M. Fontaine

Date: December 28, 2008

EXECUTIVE SUMMARY

 Open education policy has great potential to enhance value, quality, and equity in
public education. We can use the sharing power of the Internet to improve
educational opportunity and advance social justice both domestically and
internationally.

 Open educational resources, including curriculum materials and other learning

resources in the public domain, are viable and less costly alternatives to purchased
and licensed curriculum materials and learning resources.

 Unclear and restrictively interpreted provisions of copyright law concerning

educational uses of copyrighted material threaten to retard the establishment of
educational best practices for the innovative use of digital technology.

 Not only is this bad for education, it is also bad for copyright. We need a new
paradigm for intellectual property that is more consistent with the original spirit
and intent of copyright law – to promote and reward creativity and innovation.

 President-elect Obama signaled his support for transparency, access, interactivity

and reuse by adopting a Creative Commons license for the transition website.1 In
so doing, he established a precedent for the Obama administration's approach to
intellectual property. Cabinet appointees should take advantage of this opportunity
to make government agencies more transparent and responsive.

 The federal government should advocate for open education policy on both the
material and the rhetorical level.

 In terms of rhetorical strategy, the argument for open education policy should be

1 http://change.gov
 Claire Fontaine 2

framed to emphasize accountability. Schools and local districts must be held

accountable to the taxpayers who support them. Good stewards of public
resources do not pay for what they can get for free. Taxpayer funds must not be
used to purchase or license curriculum materials and other learning resources
when open educational resources represent a viable alternative.

 In material terms, the federal government can create incentives for states and
districts to adopt open education initiatives by making funding contingent upon
compliance with open education policy.

 Schools and districts should take advantage of the knowledge and expertise of
area universities and cultural institutions. Collaborative partnerships between
schools and universities, as well as with museums and libraries can be established
to develop new open educational resources and the repositories in which to store
them.

 When public funds go to support the development of new curriculum materials

and learning resources, said products must be released under licenses that permit
free use, reuse, revision and redistribution in order to maximize the benefit to
public schools and the public at large.

 Support bottom-up approaches to copyright reform like the Creative Commons

licenses. Given the negligible cost of open education resources, open education
policy will certainly reduce curriculum expenditures in the short term. But savings
will increase exponentially over time as more and more open educational
resources are developed, then shared and adapted across district and state lines.

THE PROBLEM

Copyright law in its current iteration bears little resemblance in intent and function to the

original copyright law. Fundamentally a child of the analog era, copyright law's transition to the

new digital era has been awkward. The U.S. Copyright Office has responded as if a threat had

been leveled on the sanctity of personal property. It has seen digitalization as requiring more

stringent regulation that the financial markets. But recent legislation like the Digital Millennium

Copyright Act (DMCA) of 1998 and the Technology, Education and Copyright Harmonization
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Act (TEACH) of 2002 only further demonstrate the mismatch between conceptions of

intellectual property by the U.S. Copyright Office and by content-generating Web 2.0 users.

As we have sloughed off our passive consumer selves and adopted new active user

identities, we have embraced a new ethic of participatory production of online cultural content.

When blogging or podcasting or creating mash-ups, we are repurposing existing content, or

creating derivative works, all in apparent violation of copyright law. In this way, the control

paradigm of copyright law is positioned in tense opposition to the emerging new paradigm of

disruptive digital cultural practices.

BACKGROUND

A Primer on the Open Educational Resources Movement

The term “open educational resources” (OER) refers to

1) open courseware and content;

2) open software tools (e.g. learning management systems);
3) open material for e-learning capacity building of faculty staff;
4) repositories of learning objects; and
5) free educational courses." (Hylen, qtd. in Downes, 2006)

The William and Flora Hewlett Foundation has been actively fostering OER since 2002,

when it began funding the pioneer projects of Wikipedia2 and MIT OpenCourseWare (OCW)3

alongside the Andrew Mellon Foundation. The Hewlett Foundation has since invested $68

million in OER projects, according to a February 2007 report commissioned by the foundation

entitled A Review of the Open Education Resources (OER) Movement (henceforth to be referred

2 http://wikipedia.org

3 http://ocw.mit.edu/
 Claire Fontaine 4

to as the “Hewlett OER Report”).

Blogger and open content advocate David Wiley defines open education resources as:

[OER are] curriculum materials or learning resources whose copyrights have

expired, that have been placed in the public domain, or that have been released
with an intellectual property license that permits their free use, reuse, revision, and
redistribution by others without further permission from the original authors or
creators.”4

A prominent source of OER is the MIT OpenCourseWare Project, which makes available

original content from nearly all of MIT's active courses, about 1800 courses in total. The form

and genre of offerings vary across courses and departments, but typically include some

combination of the lecture notes, podcasts, course calendars, syllabi, assignments, exams,

problem sets with solutions, labs, projects, online textbooks, video lectures, and multimedia

simulations, tools and tutorials. Each course costs the Hewlett Foundation approximately

$25,000. But, the remarkable result is that anyone with Internet access anywhere in the world can

download MIT course materials in their entirety, totally free. And most astonishingly, MIT's

commitment to open access means that users can download unlimited materials without

registering and without providing a name or email address.

Everything that appears in OpenCourseWare is original material created by the professor

specifically for their web course. This policy ensures that MIT avoids possible copyright

infringements. When the program first began in 2002, the Foundation had some difficulty

recruiting professors when the program was getting off the ground; many who have since joined

attribute their initial reluctance to concerns the project might upset their research-teaching

balance. But early adopters were successful in a way that few inside the project had anticipated.

4 http://opencontent.org/blog/archives/614
 Claire Fontaine 5

The logistical demands of OCW – gathering course materials, designing adaptations to better

serve a heterogeneous audience, converting all text documents into pdf format – certainly

consumed valuable time and energy that might otherwise have been invested in scholarly

pursuits, but most professors' found that OCW brought them a degree of exposure, publicity,

renown and prestige that academic labor can rarely match. The most strategic careerists funneled

the momentum of nascent public intellectual status back into their scholarship. Sluggish

participation became a problem of the past and MIT's always strong reputation grew ever more

vital.

According to a press release issued by MIT on December 3, 2008, OCW has recently

reached a major milestone of attracting 50 million unique visitors worldwide to the website.5

Approximately 60% of traffic comes from outside North America, with East Asia, Europe and

South Asia heavily represented. The project owes its success both to the scope and quality of the

course materials as well as to the great prestige of the MIT brand name. The MIT OCW Project

and the publicity it has attracted reflect favorably on the broader OER movement and, according

to the Hewlett OER Report, has “created a very successful, compelling, living existence proof of

the power of high-quality open educational resources” and now operates as “a catalyst for a

nascent open courseware movement” (p. 13). So far, their example has encouraged hundreds of

other universities in more than twenty countries to share course materials through the OCW

Consortium, which contains materials for over 7800 courses in six languages. 6

A coalition of educators, policy-makers, researchers, foundations and Internet pioneers is

5 http://ocw.mit.edu/OcwWeb/web/about/media/50m/50m.htm

6 http://www.ocwconsortium.org/home.html
 Claire Fontaine 6

supporting the emerging OER movement, signaling their support with signatures on the Cape

Town Open Education Declaration.7 Released on January 22, 2008, the declaration currently has

1931 signatories who have joined together to encourage governments and publishers to take

advantage of an historically unprecedented opportunity to enhance value, quality and equity in

public education through strategic utilization of new digital technologies and distributed

information networks. Although many users of OER live in developing countries which lack

comprehensive higher education systems and have consequently prioritized the development of

an Internet infrastructure as a virtual lifeline to economic development, OER cannot be

dismissed as poor man's curriculum. On the contrary, we in the United States have much to gain

from open education policies, such as the adoption of appropriate high quality OER rather than

commercial and proprietary purchased and licensed curriculum materials and learning resources.

The advantages of OER include:

1. legal clarity and simplicity – OER make copyright status explicit

2. adaptable and customizable – OER are intended for reuse, revision, remix, and
redistribution
3. save time – OER relieve educators from having to create course materials
“from scratch”
4. source of publicity for scholars – OER are distributed much more widely than
proprietary materials
5. contribute to the commons – OER enrich the global education community of
the present and the future
6. social justice orientation – OER benefit resource-poor individuals at home and
abroad
7. save money – OER represent a significant cost savings over proprietary
alternatives

While the Open Education Resources movement has garnered support within the domain of

higher education, it has not been widely taken up in K-12 curriculum discussions. This is, I

7 http://www.capetowndeclaration.org/
 Claire Fontaine 7

argue, due in part to the different ideologies of knowledge production and distribution that

predominate in the two arenas. Higher education operates on the premise that the professor can

be both an original producer of knowledge as well as one who transmits acquired knowledge to

students. While the emphasis may vary, with primarily undergraduate institutions typically

emphasizing the instructional role and research institutions tending to value the scholarship role

more, professors are nevertheless expected to fulfill responsibilities in both contexts.

The professor who in the past would have contracted with a publisher to write a portion of

the introductory-level textbook which she would have then used selectively alongside

supplementary materials of her own choosing may be sympathetic to students' concerns about the

exorbitant cost and thus elect to instead assemble the equivalent of a course packet online. The

schoolteacher, however, is typically faced with a much different set of circumstances. His aligned

and standardized materials are already bought, paid for, and waiting in shrink wrap in the supply

cabinet. The secondary content-area teacher is not regarded as an expert in his content area, and

so his freedom to make important, consequential decisions about the scope and sequence of his

course is circumscribed and ever-tentative. His knowledge is not valued like that of the college

professor. Consequently, administrators, parents and colleagues may question his decision to pass

up authorized and official materials like the standard textbook in favor of a self-assembled

collection. After all, in the context of public education, adherence to the curriculum is enforced

by high-stakes standardized tests typically used as indicators of teachers' competence and

students' progress.

Copyright Gone Wrong

 Claire Fontaine 8

Throughout the history of copyright, its protections have become steadily longer, stronger,

and broader. The origins of copyright are traceable to the Constitution, and more specifically to

the following provision in Article I, Section 8:

Congress shall have Power... To promote the Progress of Science... by securing for
limited Times to Authors... the exclusive right to their respective Writings...

The drafters of this foundational document were interested in maximizing the benefit to the

public, not in protecting the author's income stream (Stallman, 2002, p. 79). They understood

that incentives can foster innovation, but they believed that any rights conferred to authors

should be temporary, sufficient to make creative entrepreneurial work worthwhile, but no more.

Once fourteen years in duration, copyright now lasts life plus seventy years. Its restrictions were,

at first, directed against the act of copying – that is, republishing – but now most uses are

restricted. And, where it originally applied only to printed texts, it now covers almost all types of

works, including images and sound.

The Copyright Act of 1976 ushered in a major change by giving copyright status to all

works by default once set down in final form. As digital technologies emerged and spread, this

clause came to include files saved to a hard drive or disk. Authors no longer would be required to

file for copyright protection; it would be conferred automatically and retroactively. Even

unpublished manuscripts would be eligible if declared to be in finished form.

But this sort of legal arrangement meant something much different in pre-digital 1970s

than it does in 2008. The popularity and prevalence of social media Internet activity indicates

that it is now common practice to incorporate and repurpose other's work. Cultural norms have

shifted in the same direction as technological capabilities toward expanded access to

information, but our legal structures have evolved in the other direction, adopting a more
 Claire Fontaine 9

restrictive stance to information dissemination. In this way, the meaning and implications of

copyright laws have been totally transformed by the paradigm shift in modes of cultural

production and consumption, from the control paradigm to the new paradigm of disruptive

cultural digital practices.

The U.S. Copyright Office is now arguing that the transition from analog to digital media

has so fundamentally altered the nature of the cultural institution exemption that said exemption,

that was once provided for under the “fair use” clause, should be regarded as null and void. For

example, the Office is gearing up for an effort to scale back the rights of libraries, archives, and

museums to freely include copyrighted works in their digital collections. They also claim that

digitization in itself constitutes copyright infringement. When the fair use provision was first

added in 1909, legislators intended it to allow the use of copyright protected work for the

purposes of public commentary or criticism, parody, news reporting, teaching, research and

scholarship. But as Lewis Hyde (2008) argues:

It has been the strategy of the content owners not to negotiate guidelines but
to develop them on their own; to litigate and win clearly commercial cases
that are close to but not the same as “nonprofit educational” fair use; and to
then threaten educators with similar action in a manner such that the
educators sign on to a shrunken version of fair use, one that the very same
educators refused to endorse when the law was being written.

Just as fair use has been weakened by the threat of legal action and other strong-arm tactics of

content owners and big-budget producers, the educational opportunities created by recent

technological innovations have been similarly constrained by the adoption and legalization of

digital rights management (DRM) technology that locks up content. Copyright law reinforces the

power of DRM through the Digital Millennium Copyright Act (DMCA).

 Claire Fontaine 10

The Copyright Office has implicitly acknowledged that the DRM systems may sometimes

prohibit even permitted uses of copyright material. They state in their Strategic Plan for

2008-2013 that “DRM systems offer a secure technological framework for distribution of digital

content that permits greater control over works than does copyright law” (p. 26). If we

understand copyright law to permit certain “fair” uses of copyrighted material, and if we know

that DRM allows content providers to control access to information above and beyond the

limitations of copyright, then it follows that DRM would in some cases unlawfully restrict access

to content.

It is also clear that the Copyright Office has realized that public opinion is stacking up

against them. The Strategic Plan also cites the influence of file-sharing service and peer-to-peer

networks that “foster illegal copying and distribution [and] have influenced a large audience,

including children and teenagers” (p.18). These acts of so-called piracy have become normalized

and are not regarded as theft by the general public. Somewhat cryptically citing “external

demographic factors” which presumably refers to the younger generation, the document

strategizes that the solution is to create multimedia vehicles for their message of “the importance

of copyright and related laws and principles as a means of promoting creativity” (p. 9). To this

end, the National Digital Information Infrastructure and Preservation Program (NDIPP) was

created this past fall. Among its projects to date is a flash-based website meant for teachers to

use with their students.8

This website reflects their assumption that the new modes of communication and

information dissemination adopted by users can be educated away. But Lawrence Lessig's recent

8 http://loc.gov/teachers/copyrightmystery
 Claire Fontaine 11

work suggests that this operative assumption of the Copyright Office is deeply flawed. In Remix:

Making Art and Commerce Thrive in the Hybrid Economy (2008), the ardent proponent of

copyright liberalization argues that to frame what has become normal Internet behavior as illegal

activity is a dangerous policy decision that unwittingly makes digital outlaws of otherwise law-

abiding young people. The danger here resides in the likelihood of individuals to react badly,

anti-socially, if persecuted for behavior that falls within the bounds of community standards. The

law can easily come to be regarded by these young people as irrelevant, arbitrary, capricious, and

lacking in integrity – exactly what copyright defenders seek to avoid. Lawrence Solum calls this

the “normalization” of illegality.

More and more, public opinion is shifting into alignment with Lessig's stance.

Furthermore, the vast majority of individuals and organizations who share his commitment to

copyright reform are not fringe activists from outside the mainstream but rather people who

believe deeply in maintaining the integrity of our legal system. Lessig is a Professor of Law at

Stanford Law School and the founder of its Center for Internet and Society.9 He believes that if

we are not going to enforce a law, we should change it and make it into a law that we are willing

to enforce.

President-elect Obama and Lessig both previously taught at the University of Chicago Law

School. Obama consulted Lessig before announcing his adoption of a Creative Commons license

for his transition website, and the Wall Street Journal reported that Lessig's name has been

mentioned in connection with a commissioner post at the Federal Communications Commission

9 http://cyberlaw.stanford.edu
 Claire Fontaine 12

(FCC).10 This would be a highly improbable development, especially in light of a recent anti-

FCC screed published in Newsweek, in which Lessig challenged Obama to seek to dismantle the

FCC and establish in its place an Innovation Environment Protection Agency (iEPA). The

proposed agency's core purpose “would be to protect innovation from its two historical enemies -

excessive government favors and excessive private monopoly power.”11 There is some

speculation in the blogosphere that Lessig may be seeking the appointment of “innovation czar”

and using his Newsweek column as a sort of public job application platform. 12 Suspicions aside,

given the damage done to free market doctrine by the recent economic collapse, the zeitgeist

seems to be shifting toward more support for proactively interventionist government policies

inconsistent with the mission as articulated by Lessig. In any case, too much remains unknown at

this point for further speculation to be productive.

Although he has since redirected his attentions to combating political corruption through

his Change Congress project, Lessig's legacy is tightly bound up with Creative Commons.13 14

The mission of Creative Commons is “to promote better identification, negotiation and

reutilization of content for the purposes or creativity and innovation” (emphasis added). The

Creative Commons project does not aim to replace traditional copyright and, what is more, is

fundamentally reliant on the premises underlying copyright law. The Creative Commons suite of

licenses offers an alternative model for managing distribution of and access to online materials.

10 http://online.wsj.com/article/SB122929270127905065.html?mod=googlenews_wsj

11 http://www.newsweek.com/id/176809/

12 http://blogs.zdnet.com/open-source/?p=3222

13 http://changecongress.org

14 http://creativecommons.org
 Claire Fontaine 13

While not the only alternative to traditional copyright, Creative Commons is the most popular

licensing model for OER content (McCracken, 2006, p. 1). Creators who adopt a Creative

Commons license for non-commercial uses of their work may also exploit the benefits of

traditional copyright for other, commercial uses. Alternatively or additionally, authors may

decide to use a Creative Commons license for digital versions of their work, and a traditional

copyright for tangible physical copies.

But even if an author decides to release a text in print form under a Creative Commons

license, as Cory Doctorow has done with the recently published Content: Selected Essays on

Technology, Creativity, Copyright, and the Future of the Future (2008), said author still stands to

earn royalties from sales. In a December 2006 article in Forbes, Doctorow gets off to an

auspicious start when he asserts: “I've been giving away my books ever since my first novel

came out, and boy has it ever made me a bunch of money.” Doctorow proceeds to describes how

and why offering free electronic versions of books actually tends to boost sales of the physical

book.

Creative Commons does not solve the problem facing our culture of a copyright regime

that is ill-suited for our technological context. It is a bandage, not a cure. And the Creative

Commons agenda does not seek to replace the existing copyright regime. Its aims are consistent

with the original intent of copyright law, from which it gets its authority. Indeed, in articulating

their Strategic Plan, the Copyright Office echoed the language of Creative Commons when they

framed their youth re-education campaign as part of an effort to “support the constitutional goal

of encouraging American creativity” (p. 9, emphasis added).

Traditional copyright law worked fine when limited access to and high expense of the
 Claire Fontaine 14

modes of production – pieces of elaborate equipment like the printing press, the motion-picture

camera and the record press – effectively precluded private individuals from becoming content

producers. Only corporate and industrial actors gave any thought to copyright. Regulators sought

to maximize benefits to the public, or commons, while simultaneously encouraging innovation

by content-producers.

But the Internet has changed all of this. Now all of the “regular people” are potential

content producers. But we are still human, still fundamentally social creatures who engage in the

discursive social practices of debate, reflection, revision, elaboration and adaptation in our efforts

to make sense of our world. In the past, regulators were happy to take on corporations and

industry and let regular people alone to engage with each other and with their culture using

whatever non-digital media were handy. But thirty years of legislative and judicial developments

have shifted the target of copyright enforcement efforts away from businesses and institutions

and toward “regular people.” But it is equally critical to consider is the way in which the very

framework of the Internet may be contributing the problem.

Doctorow frames the impasse between the Internet and copyright as a struggle between

conflicting ways of thinking about and valuing, or not valuing, the act of copying. Both positions

are extreme, and both are the product of decisions by human actors faced with particular

problems. But the legal stance of copyright law, to“valorize copying as a rare and noteworthy

event,” is decisively undermined by emergent dominant social practices most clearly expressed

through Internet usage patterns. Indeed, the blithely profligate copying practices of the virtuosic

replication machine that is the Internet could not be more antagonistic to copyright's reverence

for the act of copying. Doctorow understands ubiquitous copying as the Internet's most
 Claire Fontaine 15

fundamental characteristic, the very purpose for which it was created.

The Internet is a system for efficiently making copies between computers... Every
time you press a key, the keypress is copied several times on your computer, then
copied into your modem, then copied onto a series of routers, thence (often) to a
server, which may make hundreds of copies both ephemeral and long-term, and
then to the other party(ies) to the conversation, where dozens more copies might
be made.
(Locus Magazine, November 2008)

This quotation gets at the issue of scale and reach that the Internet raises. The ubiquity and

embeddedness of the Internet in modern life mean that it is no longer possible to ignore that

which occurs there. Although the changed relationship between use and copying is more

accurately a consequence of digitalization than of the Internet, it is the networked nature of the

Internet that makes copyright into a controversial legal issue. Copyright owners would hardly be

as exercised about a single music lover playing music files over and over on a non-networked

computer than they are about peer-to-peer file sharing clients.

The Internet is engineered as a libertarian network that promotes access to information,

knowledge and ideas. Repeated acts of profligate copying, the Internet's basic modus operandi,

reject a basic premise of copyright law, that in order to promote creativity and innovation society

must incentivize production by granting creators control over the production, consumption and

distribution of said work. Herein lies the notion of intellectual property. But recall the larger goal

of copyright, which is to promote creativity and innovation so as improve the conditions of

social life. If copyright truly aims to achieve this lofty goal, it will be necessary to temper

enforcement of intellectual property with considerations of public welfare.

Part of Lessig's project is to explore how copyright balances intellectual property against

social benefits. He adopts the frame of remix as a device that reveals the hostility of copyright
 Claire Fontaine 16

law to public discourse in the new distributed digital context.

The idea, first, is that you take creative work, mix it together and then other
people take it and they remix it; they re-express it. In this sense, culture is remix;
knowledge is remix; politics is remix. Remix in this sense is the essence of what it
is to be human. (The Vision for the Creative Commons, p. 36)

First and foremost, remix, as the process by which culture is made, a process underwritten by

totality of Western culture, is and must remain legal. Secondly, copyright done well does

promote creativity and innovation, and the legal concept of intellectual property is central to

copyright. The problem, Lessig believes, is that our current copyright regime does not fit our

technological reality. What we need instead is:

a way to use intellectual property to enable remix, to enable it to occur without

threatening intellectual property... to make this system of creativity co-exist with
the system of intellectual property regulation. (The Vision, p. 45).

Creative Commons does not claim to fully resolve this dilemma. What it does claim, and what it

does quite well, is to allow users to remix responsibly. That is, Creative Commons enables

participation in social processes of online cultural production without copyright infringement. It

makes the arcane legal domain of copyright law accessible to the average person, thereby both

empowering and protecting its user-adopters. When applied to the domain of open educational

resources, Creative Commons supports the establishment of resource repositories where

educators can freely access lesson plans, unit plans, curriculum plans, and supplementary

materials. Although repositories already exist for the exchange of educational resources, many of

these resource banks are not as useful as they might be. The entire education community would

profit from the adoption of a common standard of Creative Commons licenses for curriculum

resources as part of a broader Open Education movement.

 Claire Fontaine 17

CURRENT POLICIES SINCE NCLB

The Proliferation of Third-Party Providers

The expansion of the federal role in education since the reauthorization of the Elementary

and Secondary Education Act (ESEA), also known as the No Child Left Behind Act of 2001

(NCLB) has created new markets, which so far have been engines of profit for traditional

educational publishing companies and private educational contractors. But the significant funds

now paid to corporate entities by states and local districts in their efforts to meet the demands of

NCLB might instead be redirected to programs, organizations and initiatives that operate more in

the public interest.

While it has long been standard practice for local school districts to seek out contracts with

third-party providers to administer and score standardized tests, NCLB created new markets for

third-party providers to enter. In addition to test development and preparation, K-12 public

school districts now seek contracts in data management and reporting, content-area specific

programming, and remedial services (Burch, 2006, p. 2587). Spending by local school districts

for these services is at an all-time high, with local school districts now spending over $20 billion

annually on purchased third-party services (Stein & Bassett, qtd. in Burch, p. 2589).

It is not clear, however, that the services rendered by these third-party providers in their

new, expanded role are of the highest quality. Significant consolidation and vertical integration of

educational publishing companies has left just four major textbook publishers in the United

States who have all reaped large profits since the passage of NCLB. Texas and California, the

two largest K-12 textbook markets, together account for one third of all textbook spending,
 Claire Fontaine 18

which gives government officials in these states outsized control of what gets produced. This

situation and the high cost of publishing textbooks creates an incentive for educational publishers

to only develop materials likely to be adopted in the Texas and California markets (Benkler,

2005).

In the post-NCLB era, the intense pressure of high stakes exams in ELA and Math has

prompted many schools to winnow their curriculum down to those subjects and topics that

students will face on the state exams (Crocco & Costigan, 2007). This is, in a very real way, a

matter of survival. If schools fail to meet their Annual Performance Targets for three years in a

row they are subject to takeover or even closure. Consequently, schools are eager to do whatever

they can to stack the deck in their favor, which is where high priced comprehensive curriculum

programs come into play. This is particularly the case for schools serving low-income students

who struggle against a whole range of inequitable conditions and persistently score well below

their more affluent counterparts on standardized tests. This so-called “curriculum narrowing” is

also reflected in the homogenization of the textbook market.

Given the amount of money at stake, leaders in educational policy would be wise to

consider other options that would keep taxpayer dollars in the public sphere rather than passing

profits on to corporations and their shareholders. Consider the challenge posed by Yochai

Benkler:

The question then becomes, to what extent is it possible to use commons-

based production of educational resources, and in particular peer production that
pools the resources of teachers and interested members of the public more generally, to
produce a much more varied and high-quality set of materials out of which
teachers and schools could weave their own tapestries for students.
(2005, p. 3)
 Claire Fontaine 19

At the post-secondary level there is already a movement underfoot to develop alternatives to

overpriced textbooks. A recent collaboratively authored review of textbook affordability

published by the University of California, California State University and California Community

Colleges revealed that for students in community colleges the cost of textbooks represented

nearly 60% of a full-time student's total education cost in the academic year 2007-08. According

to an article in USA Today, the higher education community is getting behind the idea of open

textbooks as an alternative to the traditional educational publishing monopoly. In addition,

Student Public Interest Research Groups (PIRGs) and the nonprofit organization Make

Textbooks Affordable have been collaborating for the past five years on an Open Textbooks

campaign.15 Their efforts are rapidly gaining momentum and seem destined for fruition since the

passage of the Higher Education Opportunity Act (HEOA) in August 2008. HEOA will require

the industry to share pricing information with professors and unbundle curriculum packages.

Eric Frank, a former employee of leading textbook publisher Pearson Education and his

business partner Jeff Shelstad are getting ready to unveil the first commercial open textbook

publisher, Flat World Knowledge.16 According to the CNNMoney.com, the team has secured

$1.5 million in seed money. Wired magazine's online business blog reports that Flat World

Knowledge is scheduled to go live in January 2009, and offer eight free textbooks to start. All

will be licensed under Creative Commons and will therefore be customizable as per the

specifications of the instructor. One of the textbooks, entitled Information Systems: A Manager's

Guide to Harnessing Technology, written by John Gallaugher, a professor at the Carroll School

15 http://maketextbooksaffordable.org/

16 http://www.flatworldknowledge.com/minisite/
 Claire Fontaine 20

of Management at Boston College, is now viewable online as a working document.17 Frank and

Shelstad's business model relies on customers to elect the print-on-order option, which will cost

approximately $25 for a black and white textbook and $39 for full color.

While the majority of open textbook development thus far has been associated with higher

education, certain projects do exist which are geared toward high school students. The most

successful K-12 open textbook initiative to date comes out of South Africa. Known as Free High

School Science Texts (FHSST), this project develops free science and mathematics textbooks for

high school students.18 Benkler notes that the project is more narrowly focused and more actively

managed than other, less successful open textbook projects based in the United States such as

Wikibooks 19 and the California Open Source Textbook Project 20 (p. 19). While FHSST materials

are certainly open to educators in this country, the project is funded by the South African

government and intended for South African students, which means that the available resources

are not linked to our state curriculum standards. FHSST is in this regard emblematic of the

underdeveloped condition of the K-12 Open Textbook and Open Education movements in the

United States. Given the intense pressure faced by teachers in American schools to raise student

test performance and the ready availability in most schools of curricular materials closely aligned

with state learning standards, it is unrealistic to expect educators to go against the rest of their

district in adopting materials not explicitly aligned with the established standards.

As teacher-columnist Jana Dean argues in Rethinking Schools, districts have reason to

17 http://gallaugher.com/chapters

18 http://fhsst.org

19 http://en.wikibooks.org/wiki/Main_Page

20 http://opensourcetext.org
 Claire Fontaine 21

discourage the practice of individual teachers replacing predesigned resources with customized

curricula: “School districts pay good money for this 'learning insurance' and understandably,

given the investment they've made, expect teachers to follow whatever program they've

purchased.” However, Dean elaborates, while the existence of a lucrative national market does

create incentives for educational publishers to develop high-quality materials, “the curriculum

choices of school districts around the country seem to show a distrust of teachers' ability to get

students where they need to go.” Furthermore, Dean continues, teaching must not be reduced to

mere content delivery. “Even under the best circumstances,” she writes, “the events in a lively,

engaging classroom simply can't be predicted years in advance and from five states

away” (2008).

The point here is not that all ready-to-war curricula are useless. On the contrary, curriculum

systems and scripted curriculum guides can offer much-needed structure to new teachers and

even to experienced educators teaching a new course for the first time. There is no need to

discard expensive curricula already purchased, but we must also carve out space for development

of alternative, user-generated curricula. Digital technologies and Internet-sourced curricular

materials offer an much-needed alternative to educators frustrated with the instructional

resources selected and purchased by their district.

POLICY ADVICE

A New Approach

The dismissive hostility of the Bush administration to digital technology initiatives and

information freedom is at long last coming to an end. President-elect Obama has indicated in no
 Claire Fontaine 22

uncertain terms that his administration will pursue more liberal technology policies than its

predecessor.

The Obama-Biden Technology Plan declares an intention to “update and reform our

copyright and patent systems to promote civic discourse, innovation and investment while

insuring that intellectual property owners are fairly treated.” They also commit to “encourage

diversity in the ownership of broadcast media, promote the development of new media outlets

for expression of diverse viewpoints, and clarify the public interest obligations of broadcasters

who occupy the nation's spectrum.” According to the Fact Sheet on Innovation and Technology

made available during the campaign, President-elect Obama plans to support net neutrality,

expand broadband infrastructure, and develop technological fixes that trim unnecessary expenses

from the federal budget by helping government employees and contractors to work more

efficiently rather than harder.

But perhaps most significantly, on December 1, 2008 the President-elect announced his

adoption of a Creative Commons Attribution 3.0 license for the transition website.21 This

development represents his first tangible move to reform our copyright system. It establishes an

important precedent and sets a new benchmark for what constitutes an appropriate stance toward

intellectual property and access to information for government entities in the Obama

administration.

Setting the Agenda

The federal government is more involved with public education than ever before. This is,

21 http://change.gov
 Claire Fontaine 23

for better or worse, part of the legacy of No Child Left Behind. Because there is no mention of

education in the United States Constitution, the responsibility for school governance has

historically fallen on states and local districts. As a result, funding levels can vary dramatically

from one district to the next, reflecting differences in communities' resource levels and

commitment to education. NCLB expanded the federal role in public education both materially

and symbolically, by predicating continued federal Title I funding on compliance with the

statute's student performance standards, and by strategically framing the public discourse in

terms of accountability to taxpayers. The implication is that although state and local authorities

control K-12 schools, the federal government can still exert considerable influence by

establishing funding priorities supportive of open education policy backed by a solid rhetorical

campaign.

The Cape Town Declaration's Strategy 3 on Open Education Policy could be helpful to this

process. It offers the following definition:

3. Open education policy: Third, governments, school boards, colleges and

universities should make open education a high priority. Ideally, taxpayer-funded
educational resources should be open educational resources. Accreditation and
adoption processes should give preference to open educational resources.
Educational resource repositories should actively include and highlight open
educational resources within their collections.

This language could be adopted and adapted by domestic proponents of open education policy.

Rhetorical strategists might choose to frame the argument in terms of accountability, but rather

than holding teachers accountable for students' performance on standardized tests, open

education policy would hold schools and districts accountable for the purchasing decisions they

make with taxpayer funds on curriculum materials and learning resources.

 Claire Fontaine 24

Schools and districts have a responsibility to make the best use of limited public funding,

and they could reduce expenditures on curriculum materials by selectively adopting high quality

open educational resources that represent a viable alternative to purchased or licensed proprietary

materials. Decisions to purchase or license proprietary materials instead of equivalent open

educational resources must be justified to taxpayers. When public funds are spent to produce

original curriculum materials, these materials should become freely available open educational

resources under licenses that permit free use, reuse, revision and redistribution without

restriction.

Although NCLB mandates a testing battery, it does not establish a uniform national

curriculum or set national content standards. Curriculum is typically dictated by the district or by

the state. If open education policy is to be successful as a national initiative, it is critical to link

all resource development to existing state and local content and performance standards.

Productive open educational resource development projects will capitalize on local expertise to

create the most up-to-date and relevant materials that fill a real need. Federal support should be

provided to foster collaborative partnerships between local school districts and universities to

develop flexible, modular, standards-based curriculum materials that meet local needs. Federal,

state and local cultural and educational organizations like libraries and museums should also be

encouraged to partner with local and state educational authorities including school districts and

universities to support these curriculum development initiatives. All curriculum materials

developed in this manner should be made freely available in central repositories, widely

accessible in common formats, and be released without restriction under Creative Commons

licenses.
 Claire Fontaine 25

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