WA Legislature considers Open Policy Bill

The Washington State Legislature is considering an Open Policy bill.

Video of House testimony

Video of Senate Testimony

Tom Caswell does a nice job detailing some of the concerns with the bill.

I was not able to attend the hearing and testify. If I was there, I would have asked the committee members:

  • If state and federal gas taxes were used to build a road to the University of Washington, should the contractor who built the road (paid for with public funds) be allowed to (a) own the road and (b) charge the public a toll to drive on it?
  • Or, should the public that paid for the construction and maintenance of the road have the legal right to drive on it?
  • When the public pays for the creation and maintenance of education resources, should the public have access to use the resources it paid for?
  • It's the same question: Do you think public tax payers should get what they paid for?  


Frequently Asked Questions
AN ACT Relating to access to taxpayer-funded educational materials
Rep. Reuven Carlyle
What is the problem?

·       The public does not currently have free, easy and legal access to the full range of education resources that tax dollars fund.
·       While the State is interested in the widespread distribution of the educational resources it funds, it is not maximizing the reach and impact of those resources in an efficient or equitable fashion.
What is the opportunity?
  • The Internet, software-as-a-service, mobile capabilities, low-marginal cost applications and technologies, open licensing, and digital education content provide the infrastructure and framework to efficiently and affordably share publicly-funded education resources.
  • If publicly-funded education resources are openly shared, more Washington faculty, students and citizens will have access to high-quality education resources.
  • Similar to many international, federal, philanthropic and corporate sources, State taxpayers deserve access to the appropriate work products and results of taxpayer funded education resources.  

What will this bill do?
  • This bill creates a default public policy that is ‘open’ rather than ‘closed’ relative to access to publicly-funded materials.
  • It provides a policy framework for higher education to ensure the distribution and management of open educational resources so citizens in Washington and worldwide can benefit from publicly-funded investments in appropriate materials. 

What are open education resources (OER)?

What is Creative Commons?

Creative Commons (CC) is the global standard for allowing creative works to be shared, modified and distributed legally on the web.  Specifically, it is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share.[1] The organization has released several copyright-licenses known as Creative Commons licenses free of charge to the public. These licenses allow creators to communicate which rights they reserve, and which rights they waive for the benefit of recipients or other creators. An easy to understand one-page explanation of rights, with associated visual symbols, explains the specifics of each Creative Commons license. Creative Commons licenses do not replace copyright, but are based upon it. They replace individual negotiations for specific rights between copyright owner (licensor) and licensee, which are necessary under an "all rights reserved" copyright management with a "some rights reserved" management employing standardized licenses for re-use cases where no commercial compensation is sought by the copyright owner. The result is an agile, low overhead and cost copyright management regime, profiting both copyright owners and licensees. For example, Wikipedia is using one of its licenses which allows information to be shared globally. 

What are the benefits of OER for Washington educators, students and institutions[1]?
  • OER provide freedom of access for educators, students and citizens and widens the scope of what is accessible.
  • Because faculty can freely adapt them, OER encourages pedagogical innovation and experimentation.
  • Because OER are available free of charge, using them lowers costs to students, education institutions and taxpayers.
  • Creates opportunities for existing resources to be adapted to fit better the local context – related to culture, access and learning needs – without necessitating lengthy copyright negotiation processes or duplicating development of identical core content.
  • Faculty and universities may benefit from potential publicity, which can attract new students and advance institutional recognition and reputation.
  • Supports the public service role of public education institutions.
  • OER may be helpful to future educators, underserved students and untraditional users.
  • Using OER puts educators in control and frees them from expensive, proprietary, inflexible materials as the only option for textbooks and materials. 
What open license will be placed on publicly funded education resources?

·       All education resources created using state funds must be released under the Creative Commons Attribution ShareAlike 3.0 license (CC BY SA).
·       CC BY SA is a copyright license that grants permission to the public to reproduce, distribute, perform, display or adapt the licensed materials for any purpose so long as the user gives attribution to the author and licenses and shares their derivative works under identical terms. http://creativecommons.org/licenses/by-sa/3.0

Why require the CC BY SA license?

·       Creators retain copyright. CC licenses are built on top of and encourage respect for copyright and copyright holders. CC licenses are non-exclusive. Requiring release under CC BY SA maximizes the public benefit of the funding dollars expended while ensuring the creator retains copyright and the option to offer the work under other terms that benefit their particular business model or education mission.
·       Anyone who modifies the work must license and shares their derivative work under identical license terms. This effectively prevents commercialization of publicly-funded work products outside of the construct of public control. 

·       Compatibility with established policy and practice for open education resources. Publicly funded education materials released under CC BY SA can be easily and seamlessly used in the many systems where CC licenses are already embraced, e.g., Open Courseware at dozens of major universities, innovative community college initiatives in states like Washington, and with leading foundations that support education materials such as many federal agencies, Hewlett Foundation, Lumina Foundation and the Bill & Melinda Gates Foundation

·       Global standard. Creative Commons licenses have been adopted as the institutional and governmental standard for key education initiatives around the world, and similarly for public sector information, scientific publishing, and works curated by cultural heritage institutions such as national museums and libraries. CC licenses are the legal standard for collaboration on the web, used by communities from Universities to Wikipedia. CC licenses embody established technical standards that allow faculty, students and others to find openly licensed materials using search engines such as Google.

·       Maximizes impact. In order to be used dependably and reliably by faculty, students or institutions that desire to innovate, publicly funded materials must be clearly licensed and marked as such in order to modify the default copyright rule that “all rights are reserved.”  CC BY SA permits publicly funded materials to be dependably leveraged and used alongside similarly licensed content and in conjunction with existing initiatives.

·       The public deserves free access to education materials it funds. This fundamental principle has been validated and embraced through initiatives such as the National Institute of Health’s Public Access Policy. The public should not be required to pay twice to access and use education materials, first via the funding of the research and development of education resources using their tax dollars, and then again when they purchase materials like textbooks they helped fund or when they pay a license fee to a grant recipient to use the materials. Requiring CC BY SA is axiomatic and ensures that education materials developed with taxpayer funds are accessible and usable by those who have paid for their creation.

Are Creative Commons licenses enforceable?
·       Yes. Creative Commons licenses have also been upheld in copyright litigation and are enforceable under copyright law. http://wiki.creativecommons.org/Case_Law
·       Creative Commons licenses are not a replacement for copyright. Creative Commons licenses operate within the current copyright system by allowing authors to retain their copyright but mark their work with the rights they wish to communicate in advance. At the same time, Creative Commons licenses ensure that the rights holder receives credit in the manner they prefer.
Does open licensing mean giving up one’s copyright? [2]
  • No. A common misconception is that ‘openly licensed’ content belongs in the public domain, and that the author gives up all of their rights to this material. This is not so. In fact, the emergence of open licenses has been driven strongly by a desire to protect a copyright holder’s rights in environments where content (particularly when digitized) can so easily be copied and shared via the Internet without asking permission.
If a professor or instructor creates something with State funds, will she or he still own what is created?  Will she or he be the copyright holder?
  • This bill in no way changes the ownership of who holds the copyright on state funded education resources. If a contract states a person currently owns what is built, they will continue to be the copyright owner.
  • For example, if a faculty at Western Washington University creates materials and the current institution policy is that faculty own what they create, this legislation does NOT change faculty ownership. It does, however, say this work product will put a CC BY SA license on all education resources that are produced with state funds.

Is the State claiming ownership over state funded faculty created work?
  • No. Faculty retain ownership and complete control to the copyright of their education resources created with state funds. Authors can exercise their copyright in any way they see fit.
  • The bill explicitly states faculty will (a) retain copyright and (b) receive credit for their work if others use it (a requirement of the CC BY SA license):
    • The model policy shall specifically require: (i) That all such courseware be placed under a Creative Commons Attribution ShareAlike license that grants permission to the public to reproduce, distribute, perform, display or adapt the licensed materials for any purpose so long as the user gives attribution to the author and licenses and shares their derivative works under identical terms, while still allowing the authors or creators to retain the copyright and to receive credit for their efforts;

Does the bill apply to education resources created before the bill is adopted?
  • No, there is no ‘clawback’ of materials. The policy applies only to state funded education resources created after the legislation is signed into law.
If someone builds education resources using state funds, and the resource are licensed under CC BY SA, can they still sell those resources?
  • Yes. This bill does nothing to change the copyright owner of education resources created with state funds or the rights of the copyright owner.
Will faculty still invest time and energy if they are required to share the education resources they produce with state funds?
  • Yes. Faculty are in the business of education and education is about sharing knowledge.
  • The State is not asking faculty to give up the copyright of what they build with state funds, but it is requiring faculty to share what they create with state funds under a CC BY SA license.

Will faculty be required to use state funded open education resources?
  • No.  This legislation is about sharing education resources produced with State funds.  It says nothing about using what others create.

What kinds of State funded education resources will be openly licensed?
  • The definition of what kinds of state funded education resources will be openly licensed is in the bill:
    • As used in this section, "courseware" includes materials commonly included in a post secondary education course including the syllabus, instructional materials, textbooks, research articles, laboratory activities, simulations, videos, and any other educationally useful materials. Assessments including instructional notes, quizzes, tests and exams are not subject to this policy and are not required to be shared.
What does the policy do for faculty?
  • The web makes it possible for faculty to share their education resources widely, openly, and freely.
  • This policy will require that all state funded education resources be shared so all Washington faculty and students can benefit from public education investments.

Will complying with the policy take much time?
  • The intention behind the policy is that a relatively small investment of time can greatly increase the overall accessibility and impact of state funded education resources.
  • Details of how publicly funded Universities and Colleges comply with this policy will be determined by those public education institutions in a process described in the bill.

Course materials often include images and text belonging to others, that faculty use under fair use or other limitations and exceptions to copyright. One cannot unilaterally declare such materials to be covered under a CC BY SA license. Is this a problem?
  • No. The legislation only requires education resources built with state funds to be shared under a CC BY SA license.
  • Educators and students would rather have free and legal access to partial education resources than no access at all.
  • Faculty will need to remove assets they do not own before sharing their state funded education resources under CC BY SA.

There is a well-established principle that faculty members own the copyright to the textbooks they write.  Does requiring that state funded, faculty authored textbooks be licensed under CC BY SA place faculty at a competitive disadvantage?
  • No. Faculty typically write textbooks on their own time and on their own computers.  In that case, no state funds were used and the faculty member would not need to openly license their textbook.
  • If, however, the faculty member writes a textbook on University time while being paid with state funds, then the faculty would need to make sure that their book is licensed under CC BY SA before they transfer the copyright to a publisher and sell the book.

Are there any advantages to faculty who share their education resources?
·       Yes. In a survey of MIT faculty who have published courses on MIT OpenCourseWare (OCW), 1 in 5 agree that: "Creating my OCW site provided an opportunity to rethink my approach to teaching the subject" and a similar number indicated that: "OCW publication has substantially increased the quality or organization of my course materials." See: http://ocw.mit.edu/about/next-decade

Can anyone use CC BY SA licensed materials created under this open policy?
·       Yes and Washington educators can use others’ openly licensed education resources.
·       However, if anyone uses the openly licensed materials they must (a) give attribution to the author and (b) license and share their derivative works under identical license terms.

Does sharing state funded content put Washington education institutions at a competitive disadvantage?
  • No. Today education resources are digital and are increasingly available online at no cost under an open license. As such, content is increasingly becoming a commodity. For example, see Saylor.org, MIT OCW (and now MITx), The Khan Academy or Washington’s own Open Course Library.
  • Sharing publicly funded content not only helps Washington’s Colleges and Universities leverage each other’s content, but will help connect Washington to the global network of top tier Colleges and Universities who share and collaborate (e.g., http://www.ocwconsortium.org).
  • Not sharing, not leveraging a global network of partners who will improve, translate and innovate on top of your open content is a competitive disadvantage.

Many educators are willing to share what they create. Why is this bill necessary?
  • If all of WA public K-20 educators were sharing, with open licensing, all of their state funded education resources, the bill would not be necessary.  Because this is not happening, the legislation is necessary to maximize the public’s investment in education resources.
  • CC BY SA licenses clarify to the public how they may use publicly funded content while at the same time ensuring that authors are credited for their work.

Is this government open policy unique? Who else is implementing open policies?

·       Multiple open policies, open legislation, open projects already exist. This is a global movement and Washington State has already been an active participant. Examples include:
    • Washington State Board for Community and Technical Colleges Open Policy
    • National Institutes of Health Public Access Policy
      • http://publicaccess.nih.gov/policy.htm
      • The NIH Public Access Policy ensures that the public has access to the published results of NIH funded research. It requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Central upon acceptance for publication.  To help advance science and improve human health, the Policy requires that these papers are accessible to the public on PubMed Central no later than 12 months after publication.
    • Department of Labor Open Policy on the $2 Billion Trade Adjustment Assistance Community College and Career Training Grant.
      • In order to further the goal of [insert goals here], as a condition of the receipt of a [insert Grant name] Grant (“Grant”), the Grantee will be required to license to the public (not including the Federal Government) all work created with the support of the grant (“Work”) under a Creative Commons Attribution 3.0 License (“License”). This License allows subsequent users to copy, distribute, transmit and adapt the copyrighted work and requires such users to attribute the work in the manner specified by the Grantee. Notice of the License shall be affixed to the Work. http://www.doleta.gov/taaccct
    • Commonwealth of Learning releases all of its materials under an open license. http://www.col.org/progServ/policy/Pages/oer.aspx

    • Brazil: https://creativecommons.org/weblog/entry/27698
      • Requires government funded education resources to be made widely available to the public under an open license
      • Clarifies that resources produced by public servants under his/her official capacities should be open education resources (or otherwise released under an open access framework)
      • Urges the government to support open federated systems for the distribution and archiving of OER.
    • Bill and Melinda Gates Foundation
      • Open policy on Next Generation Learning Challenges Grants (NGLC): http://nextgenlearning.org
      • All content created by NGLC grantees will be available under a CC BY license.
      • All content created by Hewlett grantees will be available to the community under a CC BY license.
    • California is working on legislation to create open textbooks, licensed under CC BY, for its 50 highest enrolled courses.

      • In 2009, California launched the Free Digital Textbook Initiative, calling for free and open high school math and science textbooks that align to California content standards. www.clrn.org/FDTI/index.cfm
    • Athabasca University (Canada) has a requirement for new course development whereby instructional designers are required to first search for published OER before purchasing proprietary content or committing to in-house development.

    • Kwame Nkrumah University of Science and Technology (Ghana) has adopted a university-wide open educational resources (OER) policy with CC Attribution as the default license for university material.

    • Virginia has a policy granting state agencies the authority over the protection and release of patents and copyrights created by employees of the agency. The policy authorizes state agencies to release all potentially copyrightable materials under the Creative Commons or Open Source Initiative licensing system, as appropriate. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-2822

    • The Netherlands: Wikiwijs
      • http://www.wikiwijs.nl/task/international.psml
      • Nationwide initiative announced by Dutch Minister of Education 2008. Wikiwijs was developed by Knowledge Network and Open University Netherlands, commissioned by the Ministry of Education. It is based on open content, open source and open standards. "An open, internet-based platform, where teachers can find, download, (further) develop and share educational resources."

    • Vietnam Opencourse
      • http://cnx.org/lenses/vocw/affiliation
      • The goal of this project is to build a rich repository of free, high-quality, open learning materials suitable for Vietnam. Launched in 2007, the Ministry of Education and Training, the VASC Software and Media Company, and the Vietnam Education Foundation.

  • Open Access (Academic Journal Articles) Policies
  • K-12 Open Projects

Are other education institutions sharing their education resources?

Yes, there are hundreds of OER projects around the world (see: http://www.ocwconsortium.org). One of the best known was created by Washington’s own Community and Technical Colleges. They call it the “Open Course Library.”
  • http://www.opencourselibrary.org
  • The Open Course Library is a collection of expertly developed education materials designed by faculty and openly shared with the world. It includes textbooks, syllabi, course activities, readings, and assessments for 81 high-enrollment college courses. 42 courses have been completed so far, providing faculty with a high-quality, affordable option that will cost students no more than $30 for course materials. The Open Course Library is:
§  High Quality – Course materials go through an extensive series of quality checks.
·       All course materials are pilot-tested in a college classroom and then further refined.
·       Quality checks include peer reviews, instructional designer reviews, and expert reviews by universal design, accessibility, and global education specialists.
§  Affordable – Students pay no more than $30 for Open Course Library materials, including textbooks. Most courses use 100% free materials.
·       Students spend $1000 or more on textbooks annually, in addition to tuition.
·       Some students even attempt courses without purchasing the textbooks, which affects completion rates.
·       Using Open Course Library materials allows students to spend less per course and afford more courses per term so they can graduate faster and get better paying jobs sooner.
§  Adaptable – Faculty can modify and build on some or all of the course materials.
·       Faculty adopters can use as much of the course materials as they choose.
·       There are no strings attached. The Community Colleges only ask that faculty cite the Open Course Library in their course and fill out our short adoption form.
§  The Student PIRGs has also written a cost analysis of the Open Course Library, which shows that the textbook savings being realized this year alone is already more than the cost of the project itself. http://www.studentpirgs.org/textbooks/documents/affordable-textbooks-for-wa-students.pdf

This FAQ is licensed under a Creative Commons Attribution 3.0 License

[1] From the Wikieducator “OER Handbook for Educators”: http://wikieducator.org/OER_Handbook/educator and UNESCO-COL Guidelines for Open Education Resources (OER) in Higher Education: http://www.col.org/resources/publications/Pages/detail.aspx?PID=364

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