Who Owns Digital Learning Resources?–5

There’s a basic problem with federal grant support for research. I don’t know if the Department of Education has avoided this problem, but I will put it out there. If a federal agency supports both research and maintenance of contract deliverables, then over time the agency has to shift resources from research to maintenance or decide what things to stop maintaining. No one writes press releases about how this year’s grants include support for the good work done in 1995 or 2006 to keep things up to date and ensure people are properly trained, stuff is widely accessible, and the like. “Fund and abandon” is a general practice.

Look at from a university faculty member’s perspective. If next year’s grants are for more new work, then the authors of this year’s final versions of work have to decide between staying with the unfunded maintenance of those works or applying for grants to do new things, publishable things. University faculty don’t generally get promoted for maintaining stuff. They get promoted for publishing discoveries. They get promoted for obtaining competitive federal grants.

I’ve helped with a number of cases involving “digital learning resources”–in nursing, medicine, psychology, education–and in my experience, federal funding counter-indicates widespread dissemination. It’s not about federal regulations or policies, not about whether something is open or proprietary. It’s something about federal funding itself that makes people focus on making things without worrying about widespread dissemination. In most cases, if there’s federal funding involved, I expect that nothing much will happen. Oh, yes, there will be invention disclosures and publications and events at which the number of attendees are counted. But actual production of a distributable final work? Not so much. But there will be more grants to do more development work, make more “inventions.”

The same thing has happened in the National Science Foundation’s SBIR and STTR programs. Why don’t these small companies ever get past Phase II and produce commercial products? Perhaps it is because companies that are happy waiting nine months to get a $100,000 grant with audit strings attached aren’t the kind of companies that generally get to commercial sales. Perhaps companies started on a business model of getting SBIR and STTR grants find that getting grants is easier than producing commercial product. Next year there will be more grants, and grants are the thing that the company is good at getting. It’s like feeding the bears in Yellowstone Park. It’s becomes easier to steal picnic baskets than to hunt up real food. Everyone becomes a Yogi Bear. 

Perhaps things are really different at the Department of Education. In my experience, it hasn’t been. But I haven’t made a study of Department granting and perhaps there’s more money available to maintain grant deliverables than I have seen.

If there is limited support for maintenance of research deliverables, then open licensing is more like a way of absolving grantees from providing continuing support than it is solving the stated problems that too few people even know that work funded by the Department of Education has been prepared and those that do are too readily confused by the terms under which they can make lots of copies or mess around changing things.

The Department of Education declined to use its government license in deliverables:

As we discuss elsewhere in these final regulations, in practice, the Department has exercised the Federal purpose license described in 2 CFR 200.315(b), and previously established in 34 CFR parts 74 and 80, only in rare cases and in those instances the license did not allow the public to access resources directly without first contacting the Department. This regulation should enable deliverables produced under our competitive grants to be more readily available to the public. As discussed earlier, we are concerned that the current policy has not allowed for broad or efficient dissemination of copyrightable works.

Accordingly, while the Department’s Federal purpose license does allow for the public to obtain a copy of these works from the Department, this has rarely occurred.

The Department gets a broad, royalty-free license but doesn’t use it. Here’s 2 CFR 200.315(b):

(b) The non-Federal entity may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, under a Federal award. The Federal awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.

What’s the point of requiring a license to the government in “deliverables” and then not using it, but requiring grantees instead to go to the work of distributing deliverables under an open license? Why even have a government license if its use is to be “rare” or considered “damaging.” It sure sounds like requiring grantees to create plan for dissemination and then disseminate is an unfunded mandate when the Department of Education could disseminate from its own web site, much as, say, NASA does.

Instead, the Department has decided that it is better to create a new regulation that forces every grantee to grant a broad, royalty-free license, but doesn’t specify exactly what this license must be–so every grantee can use whatever open source license it chooses (2 CFR 3474.20(b)(2)):

Grantees and subgrantees may select any open licenses that comply with the requirements of this section, including, at the grantee’s or subgrantee’s discretion, a license that limits use to noncommercial purposes.

The requirements for open licenses amount to rather transparent abstraction of the Creative Commons licenses with a Department of Education extension.

The Department’s argument is that the Department’s own efforts haven’t resulted in “widely” dissemination. It probably is unacceptable to posit that a whole lot of grant deliverables are not worth wide dissemination. You can lead a horse to mud but you can’t make it drink.

It is the Department’s experience, however, that copyrightable works created under competitive grants made by the Department generally have not been disseminated widely to the public. This is the case despite the existence of the Federal purpose license and efforts by the Department and grantees to proactively make them available.

And here’s more of the Department’s rationale:

We believe this is because the education resources often are created and disseminated locally or disseminated to limited audiences by grantees in presentations at research conferences, through professional associations, or by commercial mechanisms that are not easily accessed by the general public or to a wider group of stakeholders.

Notice–that whatever follows “We believe” is necessarily “true.” “We believe that open licensing is a gift from the gods.” Who can contest that? It’s what someone states they believe. It’s a version of the old political ruse of adding an “I want to make perfectly clear . . . “–sure–the statement that follows isn’t expressed as a fact; rather it is expressed as the object of an intention. How to lead an audience to believe what they want to believe without stating a fact that can be subject to evidence.

But look at the Department of Education “belief”: the Department believes that educational resources are distributed locally or at presentations at conferences or through professional associations or by commercial distributors–and “are not easily accessed by the general public” or, strangely to “a wider group of stakeholders,” as if the general public is not already wide enough. Respondents to the proposed new rule observed that the Department had not used the “best available science” in constructing their rule. It does not appear the Department even used reasonable evidence–instead, the Department adopted an ideology as a rule. Even though there’s local distribution, conference distribution, professional association distribution, and commercial distribution, that’s not open distribution.

Here’s the ideology in a sentence:

By allowing others to freely use, with minimal restrictions, the educational resources created with our funding, we are providing opportunities for the global community of stakeholders to pursue solutions to their challenges.

It’s just that once one is through with all the exceptions, walkbacks, and waivers, the Department of Education is doing nothing of the sort. It is not “allowing others” to do anything; it is requiring an open license to everything that someone isn’t motivated to avoid open licensing for. There’s no connection with such compulsion and the general gobblygook caught up in the sentiment that this regulation provides “opportunities” for anyone to “pursue solutions to their challenges.” The “global community of stakeholders” gets the leavings. The Department adds more bureaucracy by requiring “plans” for “dissemination” and judges things based on whether these “plans” sound good. It’s ideology, here, not practice based on judgment and outcomes. Much as I value open practices, open practice ideology baked into law is just another version of power seeking using the popular ideology of the day. One can impose ideology via regulation based on what sounds best in the moment, but imposition of ideology doesn’t have a great track record for innovation–presuming that the goal of Department of Education grants is the use of new and helpful materials that change educational practice and outcomes.

For all of that, there’s no reason that open and proprietary versions are mutually exclusive. In fact, it may well be that the two approaches are cross-catalytic. Proprietary versions compete then with open versions, and open versions compete with each other, or collaborate, as their user communities decide. Where a general configuration is desired–so that there is a common interface and functionality across many users–then some version will have to rise to that role. Where localization matters the most, then open versions that can be readily adapted will circulate, provided anyone has the authoring tools that permit localization. Open versions in which there is a support option–even if that costs something–might then be more desirable than open versions where no one is available to help (because they have gone on to other grants) or proprietary versions that do not allow localization.

We might consider that the issue is not one of creating policy that requires one licensing approach over another (with a bunch of walkbacks that make the gesture useless other than as a gesture toward ideology), but rather one of providing support to the social discipline into which a given educational tool is placed. Does that social discipline exist to consume the work–to use it? Or to wildly vary it and and explore all possible alterations? Or to shift it around from the orginators’ first published version and thus produce a new, better, canonical version? Perhaps then the Department of Education should have its own plan to support open dissemination for each final deliverable–to provide funding to those acquiring a given deliverable judged of value by the Department.

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