...now browsing by category

Access to Learning Materials


free as in law? (learning tomorrow 2)

Wednesday, June 1st, 2011

In my first learning tomorrow post I discussed how the default rules of copyright prevent the most efficient use of learning materials.That inefficiency has become particularly acute because the Internet allows distribution of learning materials at almost 0 marginal cost.

In this post I take a look at way that the most important learning materials in law are effectively closed. I think that we can learn some important lessons from the way that the most important educational resources are (mis)managed. Unlike a journalist I put these conclusions at the end.

Lawyers as a class have been amongst the most oblivious to the role of intermediaries in extracting a profit from learning materials. The primary learning materials for lawyers are of course case law and statute law. Case law and federal statute law are in the public domain, in both the United States, and in South Africa. Astonishingly despite Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886) some states in the United States sometimes engage in copyright claims: the state of Oregon purported to have copyright in state legislation as recently as 2008.

But as every lawyer who experienced these resources as free during law school finds out with a shock, the services providing access to statute and case law charge a great deal of money. Should courts and legislatures in a paper based world have collected and published the law as part of their functions? If people are expected to obey laws then they should have be able to find that law. Perhaps legal publishers performed these services efficiently or at least more efficiently than the state would have in a paper based world. I am skeptical but whether that is so or not everything changed with the Internet. The costs of collecting and distributing legal materials have fallen dramatically. Statutes and judgments are created as digital documents and can made available through the Internet for costs which are trivial compared to any other aspect of justice systems. It is logical that justice systems should make them available.

Although the vast bulk of the text for case law and statutes is in the public domain publishers have laid claim to the whole of published case reports because of head-notes, citation schemes and the peculiarity of “published edition” copyright. The result is that although the “property” awarded by the law is “thin” it has effectively resulted in exclusivity over a great deal of public domain material.

Providing free, easy access to statutes and cases that are available to all can be justified by the costs savings to government even if only the cost saving to government in providing that resource to government employees is considered. Governments have been slow to respond, ceding the role to non profit entities, Legal Information Institutes, such as the first LII at Cornell.

There are good arguments that it is the function of government to ensure that primary legal materials are free and freely available online, and no good arguments why they should not be free. Some of these are specific to law but others extend to other learning materials; the materials are taxpayer funded, widespread availability empowers people and more scrutinizers increases quality.

The ease, speed and fidelity of content distribution shows us how convoluted many of our systems for producing learning materials have become. Convoluted arrangements are inefficient and they usually involve intermediaries intent on extracting profit. But inefficient arrangements aren’t always visible too us, a large part of the socializing process involved in becoming a professional is learning not to question these oddities. Professors don’t pay the cost of using the sources of law as educational resources directly, neither do students, instead they are subsumed into the costs of legal education along with other far scarcer resources (such as the time of law professors). Economists call this an agency cost problem. To translate it for the street: if you aren’t paying what do you care?

But the inaccessibility of the sources of law doesn’t just raise the cost of legal education, it changes the nature how law functions as an academic discipline, no-one can engage with legal scholarship without access to these sources.

This story has somewhat of a happy ending. The Legal Information Institutes have done a good job of making the sources of law more widely available. They’ve been more than efficient on very limited resources. They demonstrate how educational resources can be made open. They also continue to encounter claims that the sources of law can be privately controlled.

Full disclosure: I’ve had the privilege of serving as copyright advisor to the Board of the South African Legal Information Institute. I consider Kerry Anderson who led the ingenious and dedicated team which built SAFLII to be a good colleague and friend. Currently Kerry and many of the same great team that built SAFLII are working on an incredibly exciting project; building an African Legal Information Institute.

learning tomorrow

Friday, May 27th, 2011

Or why I think that open educational resources matter to everyone.

Education is in ferment. A slew of books talk up a ‘crisis’ in the university, specifically universities in the United States. A sample of typical titles includes; Higher Education?: How Colleges Are Wasting Our Money and Failing Our Kids, The Marketplace of Ideas: Reform and Resistance in the American University and Crisis on Campus: A Bold Plan for Reforming Our Colleges and Universities .

But which crisis? There seem to be a number of factors bearing on the current model of higher education. Each factor has distinct origins, and each has been causing change in education, especially higher education in the developed world, on different time scales. It seems better to speak about a number of crises.

These are:
* the funding crisis,
* the crisis in the humanities and the related identity crisis of universities,
* a pedagogical crisis
* demographic shifts,
* global competition,
* the impact of information and communications technologies.

In this post I am going to speak about just one aspect of the last item listed, it is questionable whether this is a crisis so much as an opportunity.

It is simple but momentous; as soon as learning material such as a textbook is reproduced digitally and loaded onto an Internet server it is available to everyone in the world who can access the Internet, at no more cost than accessing the Internet.(1)

This will affect almost every educational institution and almost every educational practice. Since we don’t know entirely how it will affect institutions and practices let me go ahead and make myself guilty of understatement and say that it’s going to be huge.

Any description of this change has to sit uncomfortably between late 90’s technology hype and understatement. That there isn’t quite the language to talk about shows how little we (and I guess that by we I mean most of human society) still haven’t fully understood the potential of this phenomenon that we take for granted, that we call the Internet.

In the midst of growing anxiety about the rising costs of education one competent of education could be free: learning materials. That should mean that education would be cheaper and more widely available than ever.

If learning materials can be free why aren’t they?

Learning materials are subject to copyright. Copyright applies automatically as soon as an original intellectual creation is recorded in a tangible format. Remember that in lawyerspeak ‘tangible’ includes information represented as a series of 1’s and 0’s recorded as electronic charges on a distant server. That means that reproducing learning materials, except under exceptions such as fair use, is prohibited by law. The creator of leaning materials must make the effort of an affirmative legal act to allow others to share learning materials. Until open licenses became widely available there was no way for a creator to share her work without hiring a lawyer.

The default rule of copyright forbids copying. The default rules of copyright are applied to all kinds of disparate phenomena, such as punk rock, computer programs and sex education materials (the rules are also applied to epi-phenomena such as songs sung by Britney Spears).

The theory behind the default setting of copyright is that these things require time and effort (which economists and lawyers think can approximate money) to make. The law gives a (theoretically) temporary monopoly to the maker to compensate him or her for the time and effort of making it. It’s obviously a crude scheme, the Pulitzer Prize winner gets the same exclusivity and terms as the writer of advertising copy.

But most learning materials are either subsidized by government, such as school textbooks in South Africa and most of the United States, or purchased by students subsidized by government through student loans. Most are written by people whose salaries are paid directly or indirectly with tax money. Since tax money pays for the creation of these resources anyway then the most efficient use of them would be to let them be freely available, for copying and remixing.

(1) Whether you think that’s momentous or mundane one inescapable consequence is that anyone who doesn’t have access to the Internet doesn’t get to participate. Someone from a wealthy culture may think that there is no-one who doesn’t have Internet access, or least, no-one important. But as an African I am acutely conscious that the vast majority of Africans do not have Internet access, and that for those that do it’s inadequate. But it’s not as if there are any good off-line alternatives. Its not as if Africans generally already have functioning off-line systems that provide plentiful, customizable high quality learning materials or in too many cases any learning materials. I’ve never heard of a viable proposal for providing plentiful, high quality, customizable learning materials offline. If anyone has heard of one please tell us about it in a comment.