Czerniewicz Troubling Open Education Edmedia 30 June 2016

TROUBLING OPEN EDUCATION
Laura Czerniewicz
Edmedia, Vancouver , 29 June 2016

TROUBLING OPEN EDUCATION
o Introduction- multiple “ages” in higher
education landscape
o Open education as a new field of practice
o Key tensions in open education
• Digital, Free, Legal
o Some responses

INTRODUCTION
The many “ages” of Higher Education

THE AGES OF HE
o Age of austerity
o Age of unbundling &
financialisation
o Age of inequality
o Age of “abundance”
ChrisGuyCCBY-NC-ND2.0https://flic.kr/p/54arso

AUSTERITY
o Two-thirds of OECD
(developed)countries
decreased the proportion of
public expenditure devoted
to education between 2005
and 2011
(OECD 2014)
o More than half of developing
countries reduced spending
on education between 2008
& 2012
(Seery & Arendar 2014, 91 )

“COST SHARING”
http://mfeldstein.com/how-much-do-college-students-actually-pay-for-textbooks/

COST SHARING: CONTEXTS
Country
Long Walk
to Freedom
Actual Cost
Projected cost in
USA at South
African
proportions of
income
Oxford
English
Dictionary
Actual Cost
Projected cost in
USA at South
African
proportions of
income
South
Africa
$24.30 $47.00
USA $12.10 $259.77 $21.50 $504.50
(Liang 2009)
Cost of books

MORE & VARIED STUDENTS
o A massified higher education sector
• Global tertiary enrolment growth of 5% per year
in the past two decades
(British Council 2012)
o “Non-traditional” students as the norm
(Chikoko 2010; Adesoye & Amusa 2011)

INEQUALITY IN THE WORLD
http://blogs-images.forbes.com/niallmccarthy/files/2016/01/20160118_Richest_Forbes_2.jpg

INEQUALITY
Gini co-efficient across countries

INEQUALITY IN CANADA
https://www.thestar.com/opinion/commentary/2013/09/26/growth_of_inequality_in_canada_cannot_be_denied.html

INEQUALITY: TECHNOLOGY
It’s the data not the device - affordability
https://pixabay.com/en/data-key-key-close-close-to-lock-571156/CC0PublicDomain
% of population who can afford mobile Internet access
Developed countries: 96%
Developed countries: 21% (Internet.org 2014, 27)

WHERE IS KNOWLEDGE?
ouseofKnowledgebyIanParkesCCBY2.0https://www.flickr.com/photos/parksy/2934000145/

KNOWLEDGE:
INCREASINGLY PRIVATISED AND ENCLOSED
Enclosure
o Increased Intellectual
Property Rights
o Privatization
o Commodification
o Corporatization
o Globalization
o Lack of govt. & corp.
transparency
o Loss of privacy
o Disempowerment
The MacDonaldisation of
education
The Coca-colonisation of
knowledge
(Hess 2013)
(Gregson et al 2015)

HIGHER EDUCATION
o Universities - beyond commodification &
privatisation to financialisation
• What matters is future value, which depends on
speculation about ability to attract future investors,
… why brandings and ratings have become so
crucial
• Ratings literally govern universities, by shaping
practices at every level
• Shareholder capitalism transforms both who and
what governs the university, as well as what it is for
o It deters engaging with public problems …; it
deters developing and disseminating worldly
knowledge
(Wood, 2016)
http://www.chrflagship.uwc.ac.za/portfolio/video-the-university-and-its-worlds-a-panel-discussion-with-achille-mbembe-judith-butler-wendy-brown-and-david-theo-goldberg

TECHNOLOGY AS
a cause,
a consequence
the mediator of HE change
https://pixabay.com/en/display-dummy-board-face-technology-915135/CC0PublicDomain

UNIVERSITIES
Images©2014DeloitteDevelopmentLLC.Allrightsreserved.DeloitteDevelopmentLLChereby
authorizesyoutoview,copy,printanddistributethematerialsonthiswebsitesubjecttothefollowing
conditions:thematerialsareusedforinformationalpurposesonly;thematerialsareusedfor
noncommercialpurposes;anycopyofthematerialsorportionthereofmustincludethiscopyright
noticeinitsentirety.Availableat:fromhttp://dupress.com/collection/reimagining-higher-education-3/
Re-imagining themselves

IN ALL THIS
o Open education brings together
• A set of values – access & public good
• Assumptions about shareable knowledge
• Assumptions about enabling technology
SecretbySusanSCCBY-NC2.0https://flic.kr/p/8tddH

IS IT?
Ja nee
Open education seems to be a coherent
response to troubles in higher education

OPEN EDUCATION
A nascent heterogonous field of practice

• Open education resources
• Open education practices
• Open licensing
• Open access
• Open scholarship
• Open data
• Open research
• Open science
• Open web
• Open knowledge
opensourcewayCCBY-SA2.0
http://www.flickr.com/photos/opensourceway/5535034664/sizes/o/in/photostream/
OPEN EDUCATION
is varied & multidimensional

o Curated bibliography
• Research on Open Education Resources for
Development (ROER4D)’s bibliography has
over hundreds of references
See http://tinyurl.com/ROER4D-Bibliography
OPEN EDUCATION
is a nascent field of practice & research

(Hodgkinson-Williams & Grey 2009)
OPEN
EDUCATION
exists
in degrees

OPEN EDUCATION
always occurs in historical cultural contexts
(Czerniewicz et al 2014)

o Situated openness
• Considers how open and shared knowledge practices
can democratize knowledge, while also recognizing
how such notions are embedded within colonial
histories that explicitly deployed openness as a
way to legitimate the taking of indigenous
peoples’ knowledge
• Aims to develop practices of knowledge production
responsive to hierarchies of power and inequality, so
collaborative research production might involve
simultaneous modes of being open, closed, sharing,
and restrictive
(Forster 2016)
OPEN EDUCATION
occurs in unequal contexts

“Openness is not reducible to a simple definition
because it is a complex assemblage of social,
political and technological elements developed
over time”
(Jones 2015)
OPEN EDUCATION
Sounds simple

OPENNESS IS COMPLEX
o In open education, openness
• is relational: always exists in relation to closure
• exists on a continuum
• is permeable
• is not necessarily positive
• has a shadow side
• is not intrinsically afforded by technology
(Oliver 2015)

KEY TENSIONS
The nature of digital
Different understandings of free
The legal underpinnings

KEY TENSION
The nature of the digital
CCBY2.0PatrickMBurkehttps://www.flickr.com/photos/73981677@N00/5371872790/

THE DIGITAL
o The “Age of Abundance”
• “the end of content scarcity as digital distribution
achieves ubiquity” (Colombani & Videlaine 2013)
o The cost of the digital product
• “digital goods have a marginal cost that approaches zero
- making digital copies, whether 10 or 10,000 -
essentially costless and exhibit no degradation” (Pon 2015)
o The explosion of user- generated content
• Eg 300 hours of video content uploaded to Youtube every
minute (Jarboe 2014)

IDCReport:The2011DigitalUniverseStudy:ExtractingValuefromChaos,June2011
https://www.emc.com/collateral/analyst-reports/idc-extracting-value-from-chaos-ar.pdf

DIGITAL = OPEN?
o Digital affords “open” but it also affords closed
o Analogue has affordances that can be more
open than digital
W.Rebel CC BY 3.0 https://commons.wikimedia.org/wiki/File:BinaryData50.png hawkexpress CC BY-NC-ND 2.0 https://www.flickr.com/photos/hawkexpress/328322067

AFFORDANCES OF DIGITAL
o From products to services
• From tangible to intangible
o From ownership to license
o Digital Rights Management
• “the practice of imposing technological
restrictions that control what users can do with
digital media” (defectivebydesign.org)

Legal
Digital
Analogue
Illegal
Books
Textbooks
Journals
Some
photocopying
E-books
Journal databases
Open content
Photocopying
Pirate sites
File sharing
NEW ECOLOGIES OF ACCESS

KEY TENSION
Different understandings of free

What does free mean?
“OERs are educational materials and resources that
are offered freely,
are openly available to anyone and, under some
licences, allow others to reuse, adapt and
redistribute them with few or no restrictions.”
(COL/UNESCO 2011)

o Public domain is increasingly understood as
‘publically available”
o Legally, “public domain” = not in copyright
• Copyright has expired
• Creator’s intentional decision
• Not covered by copyright
o So
• Public domain = publically available
• Publically available does not automatically =
public domain

o Free in open education means
• The creator/author kept copyright ownership and
provided permissions upfront
• or public domain
o But
• Online is generally understood to be free

ASSUMPTION - ONLINE IS FREE
o New cultural practices
• Piracy cultures
• “All over the world, we are witnessing a
growing number of people building media
relationships outside those institutionalized
sets of rules...” (Castells & Cardoso 2012)
• An affective economy
• “Filesharing has emerged as one of the most
popular dimensions of the new affective
economy, in which it simply feels good to
share and then it feels even better to
embellish, remix, and share again.” (Fleming 2012)

“a very significant
proportion of the
population is building
its mediation through
alternative channels of
obtaining content
(Castells &
Cardoso 2012)
the pirates are more
often than not all of
us”
piracy cultures have
become part of our
everyday life in the
network society,
sometimes even without
us, fully acknowledging
them as such.

QUIET ENCROACHMENT
o Blurring of boundaries and breaking of rules, as
the norm everywhere
• Netherlands
• Only 10 % of all ebooks on devices paid for, most
digital books pirated (Kozlowski 2014)
• UK
• Up to 76 % of 50 popular textbooks used by
students available as free pirated e-books (Izundu 2013)
• Russia
• 92 percent of ebook readers obtained books by
illegally downloading (Indvik 2013)
The central role of the informal

A GLOBAL PHENOMENON
Academics everywhere
Sci-hub downloads Sep 2015 – Feb 2016, 48 million articles

o With its story on Sci-Hub in April 2016, Science
ran a survey with 11k respondents:
• All ages, all disciplines
• 60% had used Sci- Hub
• Both developed and developing countries
• 85% said it is not wrong to download scholarly
articles
• Primary reasons for using it
• 50% of respondents - lack of journal access
• 17% - simple convenience
• 23% objected to the profits publishers make
(Travis, 2016)

“I don’t endorse illegal tactics,
However, a lawsuit isn’t going to
stop it, nor is there any obvious
technical means.
Everyone should be thinking about
the fact that this is here to stay.”
Peter Suber, Harvard, 2016

GLOBAL RESEARCH
o Assumption that all digital resources are OERs
• Many teachers assume all digital resources are OER.
They are often willing to share, and often don’t
understand or use open licensing.
o OER not understood under the terms typically
used in the literature
• Survey of OER use among students and teachers
indicates that the concept of OER is not understood
under the terms typically used in the OER literature
(ROER4D 2015)
http://roer4d.org/wp-content/uploads/2014/01/FA_ICDE-Poster_A0_Oct2015.pdf

LOCAL RESEARCH: A CASE STUDY
o South African university students
• Survey and focus groups
o Found
• Students did not know the difference between
legal and illegal resources
• They felt that they had a right to educational
and scholarly resources
• They distinguished between attribution and
copyright
(Czerniewicz, 2016)

“Is it unethical to want to be educated or is
it unethical to charge so much [for books]?..
“Even though in my head I know it’s [illegal
downloading]wrong, it’s just a technical thing.
Substantively speaking,
it’s the right thing to do”
“It just seems, morally, if anything, we should
have that stuff available”
(Czerniewicz, 2016)
Student voices

“….plagiarism, you’re lying but I mean,
copying a textbook, you’re not trying to
harm anybody… it’s your education”
“With plagiarism, it’s more like, ‘this is
mine’, claiming this is your own and
that’s why it’s scarier [than copying or
downloading material]”
(Czerniewicz, 2016)
Attribution vs copyright

“These resources and tools being so
expensive makes it only accessible to
a certain group of people…
everything should be open”
Everything should be open
(Czerniewicz, 2016)

KEY TENSION
The legal underpinnings

http://bizarro.com/comics/september-2-2012/

THE LEGAL
We need to talk about

http://betanews.com/wp-content/uploads/2013/03/Piracy-crime-scene-PC-300x200.jpg
http://www.gambling911.com/poker/new-harry-reid-cyber-security-bill-likely-
vehicle-internet-poker-021612.html
http://www2.macleans.ca/wp-
content/uploads/2011/12/music_piracy_small.jpg
http://knowyourmeme.com/memes/piracy-its-a-crime
http://jmgregoirebooks.com/2013/03/31/show-your-support-and-take-a-
stand-against-ebook-piracy/
https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcQ0sUCbwJjBRxcTU9ZxOPX240DF_vA4SBD5cpPZYs6UmOh9UrSz
THE LEGAL: COPYRIGHT
Key discourses: criminality & commodity

Copyright has always been regarded as
a necessary evil
As short a term as possible
benefit to the producer, not the intermediary
Balancing creator rights with user rights

o “Copyright is monopoly, and produces
all the effects which the general
voice of mankind attributes to
monopoly. [ . . .] It is good that
authors should be remunerated; and the
least exceptionable way of
remunerating them is by a monopoly.
Yet monopoly is an evil. For the sake
of the good we must submit to the
evil; but the evil ought not to last a
day longer than is necessary for the
purpose of securing the good.”
• Thomas B. Macaulay, a speech delivered in the House of Commons (5 February 1841),
in VIII The Life and Works of Lord Macaulay. Longmans, Green, and Co. 1897, p201.
The original intention

o “the limited scope of the copyright holder’s
statutory monopoly, like the limited
copyright duration required by the
Constitution, reflects a balance of competing
claims upon the public interest: Creative
work is to be encouraged and rewarded, but
private motivation must ultimately serve the
cause of promoting broad public availability
of literature, music, and the other arts. The
immediate effect of our copyright law is to
secure a fair return for an “author’s”
creative labour. But the ultimate aim is, by
this incentive, to stimulate artistic
creativity for the general public good. ‘The
sole interest of the United States and the
primary object in conferring the monopoly,’
this Court has said, ‘lie in the general
benefits derived by the public from the
labours of authors.’”
• Fox Film Corp. v. Doral, 286 U.S. 123, 127 (1932)
The original intention

o “science and learning are in their
nature publici juris, and they ought
to be as free and general as air or
water.”
• Donaldson v. Beckett, 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408,
98 Eng. Rep. 257 (1774) (Lord Cadmen)
o "[i]n a word, I have no difficulty to
maintain that a perpetual monopoly of
books would prove more destructive to
learning, and even to authors, than a
second irruption of Goths and Vandals."
Hinton v Donaldson, Mor 8307 (1773) (Lord Kames)
The premise that knowledge should be free

Premise that
knowledge is an
accretion

“What am I then? Everything
that I have seen, heard, and
observed I have collected and
exploited. My works have been
nourished by countless
different individuals, by
innocent and wise ones, people
of intelligence and dunces... I
have often reaped what others
have sowed. My work is the
work of a collective being that
bears the name of Goethe.”
Goethe 1749 - 1832
Knowledge is an accretion enabled by openness

o “the public domain is not an unintended
by product, or ‘graveyard’ of
copyrighted works but its very goal.”
• Birnhack M (2006) More or better? Shaping the public domain. In The future of the public domain:
identifying the commons in information law L Guibault & P Hugenholtz eds. Kluwer Law International,
p60.
o “Initially, the practices of people
operated on the presumption that
everything was in the public domain,
except where otherwise stated, and
copyright did not play much of a role. The
history of copyright has centred on a
reversal of this presumption to the extent
that everything is assumed to be protected
unless specifically stated to be in the
public domain.” (Liang 2005)
The public domain

o The Happy Birthday song
• Originally written by 2 sisters and published in their book
Song Stories for the Kindergarten in 1893
• Warner has been earning $2million a year in royalties
• 22 September 2015 Warner’s copyright claim was
declared invalid,
and the song is effectively now in the pubic domain
(Wikipedia)
The fight for the public domain is current

BUT
The vice grip of commerce
“we are in the midst of
an enclosure movement in our
information environment.”
Benkler Y (1999) Free as the air to common use: First Amendment constraints on the enclosure of the
public domain, New York University Law Review 74, p354.

o “information that used to be “free” is
now increasingly being privatized,
monitored, encrypted, and restricted.
The enclosure is caused by the
conflicts and contradictions between
intellectual property laws and the
expanded capacities of new
technologies. It leads to speculation
that the records of scholarly
communication, the foundations of an
informed, democratic society may be at
risk.”
• Hess C & Ostrom E (2006) Introduction: an overview of the knowledge commons. In Understanding knowledge
as a commons: from theory to practice C Hess & E Ostrom eds. MIT Press, pp3-26.

The existing copyright regime that underpins
open education is under serious pressure
http://www.toxel.com/wp-content/uploads/2009/07/sand13.jpg

o Trans-Pacific Partnership (TPP) is “one of the
most ambitious free trade agreements ever
signed”
• US, Japan, Malaysia, Vietnam, Singapore, Brunei,
Australia, New Zealand, Canada, Mexico, Chile and
Peru
• qll 12 signed TPP on 4 February 2016
• The agreement will enter into force after ratification by all
signatories, if this occurs within two years.
If the agreement is not ratified by all before 4 February
2018, it will enter into force after ratification by at least 6
states
which together have a GDP
of more than 85%
of the GDP of all signatories
IP issues in strange places

“The agreement exports some of the
worst aspects of US copyright law and
policy, without many of the balancing
benefits…it locks developing countries
…into policies that hurt local
creativity, restrict access to
knowledge and slow innovation.
It also threatens to lock US law and
policy into a regime designed for the
20th century, hurting the ability for
Congress to make necessary reforms.”
(Rossini, in New, 2014)
THE LEGAL:
The dangers of the TPP

o 20-year copyright term extension is unnecessary and
unwarranted:
• The agreement requires member nations to increase their
term of copyright protection to life of the authors plus 70
years. Six of the twelve participating countries will have to
increase their copyright terms 20 years past the baseline
required by existing international treaties.
o The mention of the public domain is lip service, at best:
• Text has been removed which more actively supported the
public domain as a key policy objective.
o Enforcement provisions are mandatory, while exceptions and
limitations are optional:
• Instead of securing mandatory limitations and exceptions for
uses of copyrighted works under TPP, all of the provisions
that recognize the rights of the public are voluntary, whereas
almost everything that benefits rights holders is binding.
THE LEGAL
(Vollmer, 2015)

o Potentially drastic infringement penalties, even for non-commercial
sharing:
• The agreement allows for infringement penalties that are
disproportionate to harm, providing for the possibility of
imprisonment and excessive monetary fines for lesser
infringements.
o Criminal penalties for circumventing digital rights management on
works:
• The agreement adopts a mechanism that would prohibit the
circumvention of technological protection measures (DRM) on
works, and treats this type of violation as a separate offense
regardless of any copyright infringing activity on the underlying
content.
o Investor-state dispute settlement mechanism may be leveraged for
intellectual property claims:
• Copyrighted materials can be subject to the investor-state dispute
settlement (ISDS) mechanism, meaning that a private company
could bring a lawsuit against a TPP country if that country adopts a
law that the company claims would harm its right to exploit its
copyright interest.
. THE LEGAL
(Vollmer 2015)

The role and requirements of private companies
are foregrounded and more dominant than those
of
individuals
institutions
countries
What is needed for education?
What do developing countries need?

o “in the digital world copying is such
an essential action, so bound up with
the way computers work, that control
of copying provides, in the view of
some, unexpectedly broad powers,
considerably beyond those intended by
the copyright law.”
National Research Board (2000) The digital dilemma: intellectual property in the
information age. National Academy Press, p140.
THE LEGAL
Copyright itself needs rethinking

The intellectual property frameworks which
shape higher education engagement with
knowledge are anachronistic and outdated, out of
sync with the urgent needs of a digitally-
mediated and extremely unequal world
THE LEGAL
Copyright itself needs rethinking

o What happens in the copyright IP arena matters
profoundly to education
• Institution and educator awareness is crucial
o At present, educators’ copyright
• For teaching resources often owned by
institutions
• For research, usually given to companies
o Educators/academics need to take control
THE LEGAL
It really matters in education

RECLAIM EDUCATION AS A COMMON GOOD

a public good is non-rivalrous in consumption
-a good whose use by one person does not compete with or rival its use by another person-
&
non-excludable - no person can exclude other persons from its use
Reclaim
knowledge as a
public good

RECLAIM THE COMMONS
“The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the
goose.”
Unknown 18th century poet

THE DIGITAL KNOWLEDGE COMMONS
Natural resource commons
o Depletable/exhaustible
participation
o Rivalrous
o Scarcity
o Open access--bad
o Physical
o Threat of overuse
Digital knowledge commons
Generative/ regenerative
Peer Production
Non- rivalrous
Abundance
Open access -- good
Physical + intangible
Threat of underuse
(Hess 2013)

THE VALUE OF THE COMMONS
for education
Knowledge producers and resource creators are
in charge
Ethical and social benefits
Shift from a knowledge economy for some to a
knowledge society for all

WHAT IS TO BE DONE?
https://antiquegalerie.de/images/luepertz/luepertz-skulptur-bronze-bemalt-101x56x57.jpg

THE STATE
o Support the Paris Declaration & policy
frameworks to enable open education
o Invest in the knowledge commons
o Steer the market through light touch
interventions and incentives
o Protect the development needs
of the country

THE UNIVERSITY
o Assert academics and authors as the agents and
owners of knowledge
o Protect the autonomous university at the heart of
commons-based structures for knowledge
o Develop & support collaborative initiatives in
knowledge dissemination
o Update institutional policies

o Read the fine print!
o Hold on to copyright where possible
o Engage in copyright debates
o Participate in open ecologies
o Experiment with open models
THE EDUCATOR

RECLAIMING OPEN EDUCATION
Open education
as a means to an end
Open education as one –
important - strategy towards
an equitable, democratic and
peaceful world
Cries of ‘peace, peace, peace’ Berlin
http://ronhudson.blogspot.co.za/2005/08/berlin.html

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downloading-pirated-papers-everyone
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Acknowledgement
o With thanks to Giancarlo Frosio for the slides quoting from legal cases. In Frosio G (2015) Digital copyright: peer production, user-generated content,
access, enclosure and the public domain. Available at: http://slideplayer.com/slide/6380572
o .

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