The digital divide

OER may be a sign of our current digital religion, but still exist in what is primarily a print world, with all the technological glitches that inevitably entails. A 2017 report from the Consortium for School Networking (COSN) found that only 40 per cent of schools now report a 1–1 student-to-device ratio (meaning that each student has access to their own tablet or other device in the classroom).13 Projections indicate that number will continue to grow, but even if all students have devices, the Wi-Fi infrastructure in many schools lags behind the demands that applications place on this infrastructure.14 As recently as November 2018, 42 per cent of teachers reported that internal connectivity at school remained a challenge.15 Additionally, efforts to digitally arm every student have not always gone well. A case in point is in 2013, when the Los Angeles Unified School District (LAUSD) purchased tens of thousands of iPads for its students and teachers, plus networking gear and educational software from Pearson, at a cost of US$1.3 billion.16 The program, rolled out too quickly and with insufficient planning, was, by all accounts, a disaster. Problems ranged from patchy internet connectivity to an incomplete online curriculum to insufficient tech training for students and teachers. In October 2015 Pearson paid LAUSD a US$6.4 million settlement.17

Another problem with the LAUSD experiment is that students were able to bypass the security features on their iPads and freely surf the web – a potential problem with any tablet in the classroom18 – not to mention after school, while children are doing homework. A 2015 survey by Common Sense Media of 8- to 18-year-old students in the US found that 50 per cent use social media while doing homework.19 Indeed, a recent article in The New York Times reports a backlash from parents against screens in the classroom, particularly in wealthier school districts.20 Devices that students use for connecting with friends and playing video games need to magically become ‘learning devices only’, with educators required to enforce the rules.

Finally, digital access is not distributed evenly among socio-economic groups. Without question, wealthier school districts are more able to provide digital equipment and infrastructure. Meanwhile, even if schools have strong infrastructure in economically disadvantaged areas, students may not have adequate access at home to locate and complete assignments.21

Digital services, data security and student privacy

As with all new technologies, the power to use for good purposes has to be measured against the power of that technology to create problems. The adoption of digital tools and resources in the classroom is no exception. Among the benefits from the collection of data on students is that data can assist teachers in identifying areas of challenge for students and allows for the personalization of content and delivery, in turn leading to more efficient use of teacher time and a better, more engaging learning experience for students. Software with access to personal student data can create maps based on students’ backgrounds to anticipate common challenges students with similar backgrounds face and thus allows teachers, districts and schools to intervene early before a student begins to struggle. On the flip side, who is holding this student data, and can we be assured that this data will be held securely and not used in ways detrimental to a student’s achievement in school and in life? And as these tools become embedded in the curriculum, must parents and students accept the collection of data in order to participate in their public school curriculum?

One potential problem is that many educational technology (EdTech) companies are small start-ups, not prone to investing large sums in secure environments. The threat of mass hacking of student data either as a criminal activity or even as a school prank can create embarrassing and potentially permanent issues for students. On the side of privacy, these small businesses also must resist the temptation to turn student data into a revenue-generating activity. Finally, when start-ups fail, who becomes the owner of the collected student data and how can parents and educators ensure that information collected about a student’s performance will never become commercially available or even simply visible and permanent on the internet?

Beyond the simple question of data security, some applications used in schools explicitly require consent from parents to allow the sharing of their student’s personal data. For example, The Summit is a personalized learning tool that was developed from the CZI and supported through the engineering work of Facebook.22 If a public school system adopts a tool like The Summit, is it fair for parents to face a choice between allowing the sharing of their child’s personal information and not permitting their child to participate fully in the school’s curriculum?23

As questions about the legal and practical ramifications of the mass collection of personal data become more relevant, schools may find that justifying the use of EdTech resources in the face of the risks of the misuse of a child’s data become much harder.24 And if this is true in the US, with its relatively lax data and privacy standards, it will be a larger impediment in the EU and in other stricter jurisdictions.

One person’s trash …

Now, let’s go back to the UNESCO definition of OER: ‘OERs are any type of educational materials that are in the public domain or introduced with an open license. The nature of these open materials means that anyone can legally and freely copy, use, adapt and re-share them’ and break that down. For material to be considered OER ready, it need only be designed for an educational purpose and freely available under an open license. But, while these requirements are clearly important to any entity funding the development of an OER curriculum, they do not take into account the needs of the teachers and students who will be using the material.

For one thing, it is often left to the user (i.e. the teacher) to determine the value of the OER material, as well as how to best put it to use in the classroom. While that autonomy can be a good thing, placing the onus of validating a particular OER lesson or unit on already overworked teachers can also create a significant burden. A 2017 report from K-12 Market Advisors found that teachers spend an average of 12 hours a week searching for or creating their own instructional resources.25 Everyone knows that there is both valuable content and junk on the web, and that the challenge of monitoring the quality of educational resources available on the internet is not limited to OER materials; in fact, the quality problem also applies to resources that are not explicitly OER. Nevertheless, for advocates of OER – many of which are explicitly designed to ‘live wild’ on the internet – this question of quality control is most central. The proliferation of content makes validation by known entities critical, especially when a teacher seeking materials is trying to comply with educational standards.

To ameliorate this problem, states and districts have applied significant resources to help identify ‘quality’ OER materials. US Ed, for one, has launched what is known as the #GoOpen Initiative.26 For a state to be known as a #GoOpen state and receive federal funding and support, it must maintain certain commitments to quality. This push for quality does not come cheap, however, and that brings us to an important point: while OER is supposedly free for all, in the real world it comes with significant costs to implement.

Links to nowhere

As already mentioned, OER often links to large amounts of material on the web, including videos, photos, podcasts, lesson plans and the like. Unfortunately, when a student or teacher tries to open these materials, they often discover that they are no longer available via that link. This could be because the material has been withdrawn, a website has been shut down, or the material has been removed for copyright infringement (sadly, often the case). Whatever the cause, the symptom is known as ‘link rot’.

This past summer, a CCC researcher reviewed a social studies curriculum from a wealthy Missouri school district. The curriculum was new and had not yet been released. The district’s goal was for its teachers to adopt the curriculum, and to make it freely available to poorer districts in the area, most likely in a printed format.

Our researcher found that 16 per cent of the links had a problem, some leading to dead links, others to links that had been taken down because the linked-to sites were infringing copyright. (The latter might actually lead to a great civics lesson if they did not leave school districts with legal liability).

Dead and illegal links aside, other practical problems abound when teachers and students attempt to use the typical OER offerings. Even when links do work, they may lead to articles choked with distracting pop-up ads and ads that might entice fourth-graders to click on inappropriate content or compromise their privacy.

When a broken link is supposed to lead to a core concept in a lesson, teachers may be forced to skip over that lesson, undermining its entire pedagogy. ‘In a traditional setting, a teacher would have a textbook with all of the texts in one place’, says Whitney Whealdon. Teachers who are working with openly licensed materials like Louisiana’s ELA Guidebooks, however, ‘don’t necessarily have the texts in one place’.

Out of sequence

When OER lessons – or other resources, whether explicitly OER or not – are scattered throughout the internet, teachers are lacking two things that are crucial to effective teaching: firstly, scope, which describes the range of topics and standards of material taught at a specific grade level and, secondly, sequence, i.e. the order in which the material should be taught for the best results. A teacher may recognize a good lesson, may teach lessons well, but to organize those lessons into a coherent curriculum is far more difficult and a highly specialized skill. One useful analogy might be: just because someone is a great driver does not mean she would relish the task of putting a car together from a bunch of individual parts.

Like that driver with a box of random parts, common sense holds that a random series of out-of-sequence lessons, no matter how thoughtful, does not a quality curriculum make. (You cannot teach multiplication before addition, after all.) Selecting, sequencing and aligning OER lessons into a coherent curriculum, and then revising and adapting that curriculum over time based on real-world experience in the classroom (and making sure there are no broken links), is no trivial task. It takes time and money, as does making sure a curriculum is aligned with state standards. OER in successful implementations have a team of folks dedicated to preventing some of these problems from happening. This costs money, yes, but supports quality control and other needs.

There is, however, great potential for software solutions to assist teachers and curriculum developers to scope, sequence and align OER lessons to standards. The US Ed’s #GoOpen Initiative requires the creation of a ‘repository’ for OER, but it does not require the repository to contain a ‘curation’ layer to assist teachers and districts in ensuring their selections are fully aligned with the scope and sequence of state standards.27 As teachers utilize materials, machine learning and artificial intelligence can begin to help with evaluating the quality and appropriateness of the OER in the context of their use.

Improper scope and sequence will leave gaps in a student’s knowledge that cannot be easily recovered. This loss of fidelity to outcomes and standards can render the materials undesirable.

Copy that

Then there is the issue of getting OER content into students’ hands. In some wealthier districts in the US, all students are required to have a digital device for their school work. These are known as 1–1 districts. In lower-income districts where students do not necessarily have access to their own personal tablets or computers, photocopying is required. More often than not, it is the teacher who has to click on each link (hoping that link functions) then print out, collate and staple the readings and editorials, magazine articles and blog posts for each student in the classroom. This is repeated for every classroom in the school and for every school in the district adopting the OER curriculum. Again in our informal research, CCC found that one OER social studies curriculum was an impressive 1,071 pages long, and would necessitate some 40,000 copies every year for each class. Beyond the costs of paper and toner, just think of the hours of time at the copy machine and the frustration caused by paper jams and broken machines, particularly when many teachers may already feel overwhelmed with new OER curricula. As Lesley Vines, an ELA teacher in Louisiana, told Education Week: ‘I was a little intimidated [by Guidebooks] at first … It’s such a variety of texts. Nonfiction and fiction … are incorporated into every section’.28

For many districts as well as for individual teachers, the physical support required to reproduce thousands of pages of text can make ‘free’ OER far more difficult to implement in a classroom than a curriculum that is purchased from a traditional textbook publisher. This challenge has led to a new kind of publisher in this space – a vendor that provides physical copies of open source materials in bound teacher- or student-facing books, contributing to the overall cost.

Copyright costs and infringement

In the last decade OER-based maths curricula like Eureka Math/EngageNY have been particularly successful and quick to be adopted. One reason is that, unlike English Language Arts (and, to a lesser extent, science and social studies), maths typically does not require the use of third-party materials still under copyright, such as articles, essays, poems and blogs. Therefore, the ability to issue a maths curriculum under an open license is straightforward and the delivery of the content is unhindered in either print or digital form. Apart from maths, in disciplines such as social studies, history and language arts, the use of authentic third party is required. This is driven in the US in part by the adoption of new college and career-readiness standards, such as Common Core.29

For OER, which require an open license, this need for authentic, high-quality content creates two significant challenges.

The first challenge is that, by definition, open licensing precludes the use of third-party materials that have not been initially published under an open license or that are not in the public domain. Yet the English Language Arts standards require that students engage with so-called ‘authentic’, complex content that provides context to whatever primary work is being studied. A student reading The Great Gatsby, for instance, might read accounts of class conflict in the Hamptons and historical articles about the 1920s and 1930s, and listen to downloads of jazz music. All of this additional material is protected by copyright. While a Schools’ License from the Copyright Licensing Agency (CLA) would cover classroom use (although not open web posting) of these materials in the UK, there is not presently such a collective license in the US. Rather, content can be purchased or licensed from the copyright holder or an agent such as the CCC, or it can be used under the legal defense of ‘fair use’. Anything else is considered infringement. (Technically, even fair use is an infringement, though excused, but that is outside the scope of this article.) While fair use is a tricky concept, it is safe to say that when a district adopts a curriculum for thousands of students at scale, that material is far less likely to be considered fair use than when a teacher copies something for her own classroom on the spur of the moment.

To avoid the question of copyright, many OER providers believe the solution is to provide links to content on the internet. Beyond the issue of ‘links to nowhere’ discussed above, at CCC we have seen egregious examples of OER linking to obviously infringing content, including entire recently published books on peer-to-peer sites and bootleg audio recordings. For anyone offering OER, this gives rise to liability as a contributory infringer, and anyone using the materials would be a direct infringer.

The second significant challenge is that even copying that may be protected by fair use (in the US and the small handful of other countries that recognize this concept), if done by a school might not be protected by fair use if the copying is done by a third party. In the landmark 1991 copyright infringement case Basic Books, Inc v. Kinko’s Graphics Corporation, the copyshop paid US$2 million in damages to publishers for copying and assembling course packs without seeking permission for the copyrighted material, even though the typical end user – the university student – might have a claim to fair use protection.30

While fair use is a US concept, other nations allow educational reuse through exceptions such as ‘fair dealing’, statutory licenses and other regimes. These exceptions vary, though they generally do not extend to third-party copy providers, and do not extend to posting on the open internet.31 Accordingly, schools may have difficulty, even if they are protected by fair use, fair dealing, or another exception, locating a copying provider willing to overlook the copyright infringement risk. This remains true even for OER that link to lawful online content.

Unfortunately, many OER providers simply push the question and risks of copyright and permission for third-party materials required in their lessons downstream to the districts and teachers rather than find a solution beforehand, leaving districts to decide for themselves their tolerance of infringement risk for linking to or copying materials.

Open licensing and the CC BY

While it may have its advantages, open licensing – especially the CC BY license, which allows redistribution and reuse of a licensed work as long as the creator is properly credited – has also created confusion and challenges that directly affect the quality and usability of OER. Specifically, under the Creative Commons (CC) CC BY license, anyone can take content covered by the license and print it and sell it, as long as the creator is attributed. The very nature of OER that use links and digital-only materials and that are issued under an open license creates difficult and unavoidable challenges for developers and the end users.

Ironically, under the terms of the CC BY license the creator cannot charge money for the work, but anyone else can, leading to frustration for some OER creators.32

Moreover, under a CC BY license, all kinds of adaptations and modifications, and even incorrect changes, can be made to an author’s work, including distorting the pedagogy, while the attribution requirement (the ‘BY’ in CC BY) remains — thus linking the original author’s name to the corrupted materials. Without adequate license protection from bad actors, the creator (who may have received no money for their work) in turn may find their name attached to unapproved, corrupted versions of their work and face having those unapproved, corrupted versions sold to schools at a profit by third parties.

Lastly, it is difficult for an OER issued under a CC BY license to contain copyrighted third-party materials, especially when those materials are canonical literature published by a traditional publisher. Some commentators, when discussing the use of an open license, make the point that ‘in licensing out material under a CC license, for instance an academic article, electronic thesis or course material, people need to be careful not to include third-party-owned copyright[-protected] items they have no authority to license’33 Effectively, OER developers can either choose to be ‘open’ and have an extremely limited set of third-party materials available, or choose to use contemporary text, images and other copyright-protected intellectual property. In subjects requiring outside reading (i.e. all subjects other than maths) and without the third-party materials on hand, all the issues raised in previous sections come into play.

The question of sustainability

The efficacy of CC BY licensing for OER also raises the question of the long-term sustainability of any OER curriculum.

Often, OER are seen as ‘teacher-created materials’ which the teacher then shares. It is fair to say that teachers have been sharing resources since the beginning of time. The internet, however, changed the scope of possible sharing among teachers – creating great possibilities for ‘crowdsourcing’ the best materials and having them circulate for free. This increase in the scale of distribution, however, creates two major changes. First, the teacher is no longer simply sharing; the teacher is publishing. As a publisher, a teacher now will have additional responsibilities under copyright law in so far as their lessons require third-party materials and a teacher may have incentive to no longer simply donate their intellectual property if there is opportunity to monetize their work.34 Second, as OER change from supplemental learning resources to foundational learning resources, significant investment is required to ensure that students are receiving a fully scoped and sequenced curriculum. OER now face problems that textbook publishers face daily.

Traditionally, textbook publishers have recouped their investment in content, scope, alignment and sequencing through the sale of books and software to schools and districts. Under CC BY licensing, however, the original distribution and reuse of OER curricula is free, making it unlikely that those publishers will recoup their investment through sales, especially as third parties may come along and sell copies in more convenient (or simply less expensive) forms and not pay the costs of creating the content. Instead, OER developers generally turn to philanthropic or government funding to build the initial curriculum and then rely on further funding to sustain the quality of that curriculum, adapting, improving or just maintaining it over time.

Remember Eureka Math and EngageNY, mentioned above as a great OER success story? It was issued under a CC-BY-NC license by its creator Great Minds. Great Minds subsequently went to court in two separate cases in order to prevent the large-scale copying of its curriculum by third-party service providers – and so far has lost.35 This raises significant questions about the sustainability of a business model which sought to distinguish between commercial and non-commercial copying.

Educational publishing is risky, even for established commercial publishers who need spend significant revenues in editorial development, sales, marketing and revisions in the hope that schools will buy their books. However, the sales models they use, while subject to criticism, are at least well established and understood. OER publishers, on the other hand, are often dependent on grant funding from governments and foundations, and, at least in the US, foundations are increasingly looking to limit investment to seed funding and start-up capital. Philanthropic organizations and governments also have their own objectives – objectives that may or may not conform to the best pedagogical practices. Government funding is unreliable when it comes to ensuring OER sustainability. Administrations come and go at the local, state and federal levels, with their interest in and support of OER waxing and waning over time.

Schools or districts adopting an OER curriculum must likewise take on that risk, knowing that continued updates and support for that curriculum are not guaranteed.

Granted, some OER publishers have created alternative models to generate revenue for ongoing content development. These models usually include some mix of professional development for teachers (for a fee) and mark-ups on the sale of anchor texts (an expense schools continue to bear with ELA OER curriculum). Ironically, traditional textbook publishers sell districts the textbook, then offer services like professional development for free, and OER developers have flipped the model (content for free/professional development for a fee). Incidentally, because of CC-BY, developers of OER cannot prohibit an organization from creating professional development around their content and selling that into the marketplace, meaning OER creators are in competition with any other organization that wants to offer professional development for content created by that OER creator.36 This differentiates OER from traditional publishing, where copyright limits the amount that others can use the original publisher’s content.

What this means for schools and teachers is that many OER will become use-at-your-own risk with – potentially – no original creator available to support the implementation of the curriculum if the actual creator lacks a business model to allow it to remain a going concern.37 The schools and districts may need to have the time, money and staffing available to provide teacher support for the curriculum on an ongoing basis, to keep it up to date and, when adapting the curriculum, keeping it appropriately scoped and sequenced.

The advantage of print and interactive PDFs

From an implementation standpoint, a print-ready OER curriculum offers the easiest way to deliver OER material into the classroom. For 1–1 districts, the use of digital course materials in the form of PDFs which capture the online materials is a solution to dead links (for text), poor connectivity, advertising overload and student (or teacher) difficulties engaging with the technology.

There are unforeseen advantages, especially to print. When CCC first piloted the Louisiana unit readers with seventh-grade teachers, we provided them with print copies that included some blank pages. This was done simply because it was easier to leave some pages blank when creating the prototypes, but it turned out that the teachers loved the blank pages, as they allowed space for students to take active reading notes on the text without being squeezed into narrow margins.

In a 1–1 district, an OER designed for print can always be offered digitally, and can be built as interactive PDFs with embedded links to allow access to media such as videos or interactive simulations (although the challenge of dead links remains). The course pack model also works well for non 1–1 school districts that want to adopt a successful OER curriculum, but that lack the budget to pay for iPads, tablets or PCs for every student. Success is seen in adoption, such as that experienced in Louisiana.