Two issues brought copyright to the attention of Canadian educators in 2011. One was the controversy over the fees Access Copyright charges to Canadian universities. The other was the revival of the Copyright Modernization Act, which promises to explicitly include “education” under “fair dealing”, while at the same time potentially eviscerating fair dealing in practice by adding legal support for “digital locks”. This renewed focus on licensing of educational materials leads many to ask whether such materials could somehow be made available under less restrictive licensing. This question is particularly relevant when we consider the success of liberal licensing in a different domain: software.
If Free Software, Why not Free Books?
Some of the world’s best and most sophisticated software is distributed today under “free” or “open source” licenses, which allow the recipients of such software to use, modify, and share it without paying royalties or asking for permissions. Web browsers such as Firefox and Chrome, and smartphones running the Android operating system, are familiar examples, but they represent just the tip of the iceberg. Free software is used most widely in layers of modern information systems hidden from the end user. For example, Facebook, Google, YouTube, Wikipedia, and Yahoo! – the world’s five most visited websites – all run on the free Linux operating system. Countless websites, like www.whitehouse.gov, run on open source content-management systems such as Drupal. And some of today’s most popular proprietary software products, such as, Apple’s OS X, incorporate a substantial amount of free software internally.
If this works for software, could it also work for educational resources, such as books? As it turns out, the economics of software are different from the economics of book publishing in a way that creates stronger natural incentives for liberal licensing of software. On the other hand, the development of free software has resulted in a set of institutional solutions that facilitate collective production and help free software expand from domains where the incentives for liberal licensing are naturally very strong to situations where they are relatively weak. Careful attention to how such solutions work in the context of free software could facilitate their application in the domain of educational resources.
Hold Up Concerns in Software and Textbooks
One of the biggest differences between software and books concerns the uncertainty that is involved in the acquisition decision. To reap real benefits from software, users often must make long-term complementary investments – for example, in training, integration with existing IT infrastructure, or development of auxiliary custom software. A sophisticated user of software would be wary of making such additional investments without an assurance that the vendor would not be able to take away or disable the software later. A vendor with such power would able be to take advantage of the user’s dependence on the software and extract much of the user’s profits. This situation, known in economics as “a hold up,” may present as much of a problem for the vendor as it does for the user, since the fear of hold up can lead the user to avoid the software.
In theory, this problem could be solved with a long-term contract. In practice, however, a vendor’s promise to merely “not take away” the software is not enough. Today’s software is likely to be obsolete tomorrow. Consequently, users who bet on a particular software product want more: an ability to modify the software to fix yet-to-be-discovered security vulnerabilities, to comply with yet-to-be-passed legislation, or to run on yet-to-be-developed hardware without having to negotiate with the original vendor. And since maintenance and modification of software can be an expensive undertaking, they must be able to share their modifications with other users. If the necessary software is not available on such liberal terms, it may make sense for an organization to spend substantial resources developing a piece of software “in house” – just so that it could be modified at will. Having developed the software, the organization may find it advantageous to allow others to use and modify it, thereby allowing the original developer to take advantage of modifications undertaken by others.
Once a book is read, its value to the reader is reduced. If it were to suddenly disappear from the reader’s shelf (as electronic books occasionally do), the reader would lose — at most — the money he or she paid for the book.
This economic rationale does not apply with the same force to books (or, for that matter, to music or films). Once a book is read, its value to the reader is reduced. If it were to suddenly disappear from the reader’s shelf (as electronic books occasionally do), the reader would lose — at most — the money he or she paid for the book. An instructor who decides to use a book for a course makes a more substantial investment but even then, switching to a different text usually requires relatively minor adjustments. Few instructors are tempted to write their own textbooks just to avoid future uncertainty.
Free Software Institutions
While it may make sense for a company to spend money to write its own software, the cost of writing software can be prohibitive for a single user. A better solution would be for many potential users to pitch in and then share the result, each getting the right to modify it at will. Such cooperation may be difficult to achieve, since potential contributors might prefer to “free ride” on contributions of others. Over the years, however, producers of free software have developed a toolkit of institutional solutions that facilitate collaboration and have enabled free software to gradually expand from those situations where the benefits of modifiability are overwhelming to those where the natural incentives for free software are relatively weak.
In the early days of computing, software was often shared without restrictions simply because the law offered producers few options for enforcing such restrictions. In 1980, however, the U.S. extended strong copyright protection to software – a move that was rapidly replicated in other countries. Many software makers embraced the new rules. Some programmers, however – in particular those working in university research labs – started looking for ways to continue the practice of liberal licensing. Through the 1980s, production of free software gradually took the shape of a social movement. Software developers started to formulate an explicit set of ideas about why software ought to be shared, stressing that users’ ability to modify software is crucial for their ability to use it freely and ought to be understood as a matter of user’s rights. The movement also started experimenting with alternative forms of organizing production, in particular the use of non-profit foundations to manage collective rights.
Two approaches to licensing were introduced during this period to turn copyright law to free software’s advantage. “Permissive” licensing typically allows recipients of software to use it as they see fit, make modifications, and redistribute it on any terms – the only restrictions being that the user must give credit to the original authors and cannot sue them. “Copyleft” licensing goes a step further, allowing the user to modify and redistribute software, but imposing an additional restriction: if users want to redistribute the software, they must allow the recipients to share it as well. Copyleft licensing has helped the free software movement build up a body of software that can be used as a bargaining chip: software producers who want to develop their software by modifying existing “copylefted” programs must commit to “copyleft” licensing terms in return. As the body of free software has grown over the years, this bargain has become increasingly attractive.
In the 1990s, free software projects increasingly started to rely on distributed development methods. Instead of treating users’ ability to make modifications as just a benefit to the users, many projects came to see such modifications as the main driver of innovation. The name of the Apache web server – which today supports nearly 60 percent of the world’s websites – reflects this approach, referring to the many users’ modifications (“patches”) from which it was assembled. Distributed development became possible in part due to the increased use of modularity in software production throughout the 1980s: building software as a collection of components that could be developed independently and easily rearranged. It was also facilitated by the growth of the Internet and the development of tools that facilitate large-scale collaboration.
Driven by distributed development, free software started to become attractive not only because it offered users freedom to make changes, but also because it was better than proprietary alternatives. This led many practitioners to start downplaying the more idealistic elements of the movement’s rhetoric, instead stressing the technical benefits that accrue from letting users do whatever they want with the software. The new pragmatic rhetoric – and the new corporate-friendly term “open source” coined to go with it – helped pitch liberal licensing to profit-oriented companies. Such companies have since found that improving existing open source solutions may be the best way to get high quality software for internal use. (Yahoo!, for example, paid salaries of many programmers working on Hadoop, a high-volume database that is today used — for free! — by Facebook, Twitter, and a host of other companies.) Others contribute to open source products that are complementary to the products that drive their revenue. Google wants Internet users to have access to good browsers, so that they can see Google’s ads (which explains Google’s support of Chrome and Firefox). Some companies – for example IBM – have built their business around providing services based on free software. This has allowed free software to attract literally billions of dollars of investments from private corporations, further increasing the range and quality of such software.
Open Source Textbooks?
As mentioned earlier, liberal licensing of books is not supported by the same economic incentives as liberal licensing of software. However, many of the solutions that have facilitated development of free software appear applicable to books and other educational resources, and the work of applying and adapting some of those solutions has been taking place over the last decade.
Many of the solutions that have facilitated development of free software appear applicable to books and other educational resources, and the work of applying and adapting some of those solutions has been taking place over the last decade.
Wikipedia, while hardly a replacement for textbooks, provides an example of a wildly successful collaborative body of text, produced through a process that quite explicitly followed solutions originally developed for free software. From the beginning, Wikipedia used a license developed for free software documentation, drew on technical solutions modelled after those used in software development, used a non-profit foundation, and ran on free software. The use of standardized licenses in production of free software provided an example for Creative Commons, an organization that has been promoting liberal licensing of cultural products by offering authors a small set of licenses that are easy to understand and choose from. Some government agencies have started mandating public access to scientific publications (the National Institutes of Health (NIH) in the U.S. is an example), while some academic disciplines have shifted their focus from copyrighted journal publications to freely available archives of pre-prints. A number of projects are also promoting the availability of free educational materials, for example, the Connexions project, MIT’s OpenCourseWare initiative, and the California Open Source Textbook Project. All of those projects are yet to reach a point where open educational resources would reliably provide a realistic alternative to proprietary materials, but they have achieved enough success that educators should know about them and consider checking whether their needs can be served in a particular situation by open resources before adopting a proprietary solution.
A careful look at the production of free software suggests a number of problems that projects aiming to provide open educational resources would need to tackle going forward.
Government support vs. a social movement. Prior to the 1980s, much publicly available software was funded by the U.S. government. The change in government policy has helped free software production to move away from reliance on the government and had the long-term effect of providing producers of free software a degree of isolation from the fluctuations in political climate. The success of open educational resources may also depend on building a movement organized around non-profit foundations rather than government projects. If such a movement were to attract contributions from volunteers, it would need to formulate a clearer set of ideas about why open resources are important.
Delimiting “open”. From early on, the free software movement managed to establish clear definitions about what does and does not count as “free software” (and later “open source”). In contrast, projects aiming to produce open educational resources have been plagued by the vagueness of the term “open,” with a number of organizations offering “open” or even “open source” resources that do not actually allow unencumbered reuse. Here, Creative Commons provides a solution by offering a set of clearly delineated licenses, which perhaps should be more widely adopted by such projects.
Focus on freedom of modification and redistribution rather than on cost. The success of free software has been made possible by focusing on value added by letting users modify and redistribute software rather than on the fact that it is free of charge. The Free Software Foundation makes this point by comparing “free software” to “free speech” rather than “free beer”. Even the proponents of the more pragmatic “open source” approach usually focus on the value of letting users make modifications rather than on price. Similarly, open educational resources should be supported because of the promise of improving educational outcomes, not because they might help cut educational budgets.
Modularity. The success of open source software has been enabled in a large part by a modular approach to software design, which allows many people to work together on what will eventually become one piece of software without having to reach prior agreement and to coordinate too closely during the development. Success of open educational resources would likely require developing similarly modular approaches. This will require questioning the idea of “a textbook” as a natural unit.
Regulating “open”. The success of free software has been enabled in part by the fact that production of software is largely unregulated. Software developers usually do not need to be licensed and their software does not need to be certified before it can be used, except in special cases. When it is required, certification diminishes the attraction of open source by taking away its main advantage – modifiability. Certification of textbooks and other educational resources similarly presents a major roadblock for liberal licensing. Educators interested in freely licenced resources should ask whether such certification can be avoided while at the same time ensuring a level of quality that users in the educational community can trust.
The economics of publishing create a steeper road for proponents of free educational resources than that faced by the proponents of free software. Progress on this path can be facilitated, however, if educators take time to learn how free software got to where it is today.
EN BREF – Certains des meilleurs logiciels du monde sont actuellement distribués en vertu de licences « ouvertes » permettant aux personnes qui les obtiennent de les utiliser, de les modifier et de les partager sans payer de droits d’auteur ou demander d’autorisation. Si cela fonctionne pour les logiciels, est-ce que cela pourrait se faire pour des ressources éducatives comme les livres? Les conditions économiques des logiciels diffèrent de celles de l’édition de livres, mais il faut porter particulièrement attention à l’évolution du mouvement des logiciels ouverts – notamment à l’accent mis sur la qualité plutôt que sur le coût – pour faciliter un développement similaire dans le domaine des ressources en éducation tels que les manuels. Les personnes qui souhaitent explorer les possibilités des ressources éducatives libres devraient tenir compte des concepts de modifiabilité et de modularité, qui ont été les principaux atouts des logiciels ouverts. Dans le cas des ressources éducatives, ces concepts peuvent remettre en question le « manuel » comme unité naturelle.
 The argument presented here is explored in more detail in M. Schwatz and Y. Takhteyev (2010), “Half a Century of Public Software Institutions: Open Source as a Solution to the Hold-Up Problem,” Journal of Public Economic Theory 12, no.4 (2010): 609–639 (available at http://dx.doi.org/10.1111/j.1467-9779.2010.01467.x) and Y. Takhteyev, “The Source in Free Culture”, 2009 (available at http://cyber.law.harvard.edu/fcrw/sites/fcrw/images/Takhteyev-Source-in-Free-Culture.pdf).
 Wikipedia’s cousin wikibooks.org aims to provide full books, including textbooks.