Following on the heels of the recent federal lawsuit against Apple and several publishers for allegedly colluding to set book prices, three of the largest educational publishers—Pearson, Cengage Learning, and Macmillan Higher Education—last week sued Boundless Learning, one of the newest entrants in the production of open education materials. According to The Chronicle of Higher Education, the publishers charge that Boundless Learning simply paraphrases their texts, and that, in doing so, “the young company, which produces open-education alternatives to printed textbooks, has stolen the creative expression of their authors and editors, violating their intellectual-property rights.” The complaint states,
Notwithstanding whatever use it claims to make of ‘open source educational content,’ Defendant distributes ‘replacement textbooks’ that are created from, based upon, and overwhelmingly similar to Plaintiffs’ textbooks, [and] “Whether in the lecture hall or in a textbook, anyone is obviously free to teach the subjects biology, economics, or psychology, and can do so using, creating, and refining the pedagogical materials they think best, whether consisting of ‘open source educational content’ or otherwise. But by making unauthorized ‘shadow-versions’ of Plaintiffs’ copyrighted works, Defendant teaches only the age-old business model of theft.
The Chronicle further reported that Ariel Diaz, the head of Boundless Learning, said that the publishers are “wrongfully claiming ownership of open knowledge” and that the publishers are trying to create a monopoly. But it is not difficult to see that the publishers may have concerns beyond those raised by copyright infringement: According to Boundless Learning, their resources have been accessed by students at more than 1000 universities across the nation. This could seriously cut into the profit margin of the traditional textbook market.
Why This Case is Important
Regardless of the financial considerations, this case raises important questions about the Open Education movement and its reliance on unlicensed resources. Open Education and open resources have the potential to revolutionize and democratize access to learning, reducing or even eliminating textbook costs for millions of students, which is especially important as the costs of higher education continue to rise and outpace the incomes of those who want to earn college degrees.
However, serious consideration of the way that open education resources might have an impact on the rights of the creators on shared content is only just beginning. In many ways, this is similar to the controversy over downloaded music, which emerged in the late 1990s and early 2000s, upon the creation of Mp3 players. Recording artists argued that music-sharing sites, such as Napster, eMusic, and others were actually violating copyright law when they allowed users to download protected content such as songs and albums. The issue was resolved somewhat with the creation of sites such as iTunes, which charge users for downloaded songs. In the case of textbooks, the publishers are arguing that open education resources created by other parties but based on copyrighted works are a similar infringement on copyright law.
What is Intellectual Property (IP)?
According to the United States Patent and Trademark Office (USPTO), Intellectual Property (IP) is “imagination made real. It is the ownership of dream, an idea, an improvement, an emotion that we can touch, see, hear, and feel. It is an asset just like your home, your car, or your bank account.” If you think that’s vague, you’re right, and that vagueness is intentional. The term “Intellectual Property” includes such a broad swath of human invention and creation that a general definition is difficult to come by. However, the World Intellectual Property Organization (WIPO) provides this helpful definition:
Intellectual property (IP) refers to creations of the mind: inventions,literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
More relevant to the discussion of textbook copyright is the definition provided by the United Nations, which weighed in on the challenges that digital materials pose to current IP legal definitions and practices through its Educational, Scientific, and Cultural Organization (UNESCO). In its January 2011 Policy Brief, the UNESCO wrote that “Intellectual property refers to the concept that ideas and the way they then appear as objects, and other media somehow belong to those who shaped and produced them.” UNESCO then noted, however, that “When copyright is applied to printed material these complexities cause relatively few problems, not least because the object itself is very apparent. Now that material is available on the Internet and materials are digital, problems are exposed more and more.”
One of these problems is that textbooks supply not only informational data that can be considered general knowledge (i.e., World War I started in August 1914) but also interpretive and structural elements (the causes of WWI and the importance placed on different factors by the textbook author) that are the creation of the author and therefore not necessarily general knowledge. Under the UNESCO definition, a structural element such as chapter organization might then be considered protected, copyrighted material.
What are the Possible Solutions?
One solution has been for companies such as Boundless Learning to rely on Creative Commons licensing, which allows content creators, such as authors, musicians, etc., make their work available free of charge and with specified uses, including in some cases, no restrictions on use. However, that solution is only relevant to individual creators; corporations will hardly be open to licensing their materials in such a way, with so much money at stake. The solution to resolving these issues is therefore still an open question, and will depend to a certain extent on the outcome of this lawsuit and any others that may come along.