How Not to Encourage Open Sharing of Teaching Materials (UBC’s Policy 81)

 

In February of 2014, the Board of Governors of the University of British Columbia passed Policy 81: Use of Teaching Materials in UBC Credit Courses.  Note, April 2015: since it looks like the policy will change (see this blog post), I’m attaching the original version of the policy here because the link might go to the new policy eventually. If the link goes to the policy as passed in 2015, then please see here for the 2014 version: Policy 81, as passed in 2014 (PDF)

I am writing a couple of posts about this because it has had some problematic ramifications for open sharing of teaching materials at UBC, and seems to be a step backwards in terms of promoting open education. In this first post I’ll discuss the policy, what has happened since it was passed, and the problems with the policy. In the next post I’ll talk about my main concerns with it vis-à-vis open education, and a survey I hope to do about faculty attitudes towards open sharing of teaching materials.

 

The policy

 

Ostensibly, Policy 81 was designed in order to clarify how teaching materials shared between faculty members can be used, given intellectual property concerns (e.g., if one is teaching a course for which someone else designed some of the materials in the past, can one use and modify those materials to use in one’s own course? Does one have to get express permission to do so?). Section 1.2 of the policy states the following (if this link goes to the policy passed in 2015, please see the PDF given above, just below the image).

In order to facilitate collaboration with colleagues and enable Departments to support outstanding teaching, if a UBC Instructor makes his/her Teaching Materials available for use by others, unless that UBC Instructor places restrictions up on the Teaching Materials that he/she shares in accordance with Section 2, UBC may, through its Faculties, Departments and individual Instructors, use, revise, and allow other UBC Instructors to use and revise the Teaching Materials to facilitate ongoing offerings of Credit Courses. The contribution of all UBC Instructors to the development of such Teaching Materials will be acknowledged in accordance with accepted scholarly standards unless the UBC Instructors advice UBC, at any time, that they do not wish such acknowledgement.

One might think of this as something like a CC-BY license, but only within one institution–if you share your teaching materials, you are understood to be doing so in a way that allows anyone else in the University to use and revise them so long as they give proper attribution.

On the face of it, this seems fairly reasonable. If I share my syllabus, or an essay assignment, or lecture notes with another faculty member, they don’t have to track me down to get written permission to revise and reuse. Sharing means it’s understood that you can do that within the UBC community (but not beyond). Just as an extreme example, I teach in a team-taught program, and some years we will basically re-use (maybe with some revision) essay questions that others have written in years past. No one questions that that is permissible; no one says, hey, shouldn’t we ask so-and-so if we can re-use their essay question (and what if so-and-so retired several years ago and we can’t get a hold of him or her?). Though technically, it may be that permission should be sought and granted before re-using and revision teaching materials in this way, just like we have to get permission to re-use images on websites if they aren’t openly licensed (here at UBC, we faculty own copyright in our teaching materials). I have used a “late essay form” that was shared with me from another faculty member, with attribution, for many years now; but I never asked that faculty member if I could. I probably should have. This policy says we don’t have to ask permission, which streamlines such activities.

So far, so good, one might think. The policy reiterates that UBC faculty own copyright in their Teaching Materials and that nothing in the policy changes that:

1.5 Sharing materials does not imply any transfer in the ownership of copyright by UBC Instructors. Nothing in this policy transfers the ownership of any Teaching Materials to UBC.

 

The response so far

 

There was an email from our faculty union telling us the dangers of this policy, and how to put notices on our teaching materials that they may not be revised and reused by anyone without permission. That’s one way to opt out. Another way is to  exempt all materials from particular classes from the policy by registering each class at this website: https://policy81.learning.ubc.ca/ (UBC faculty and staff can log in and see all the courses on the registry, so they can know whether they will need to ask permission for the materials they would like to revise/reuse).

Anecdotally, I’ve heard from a number of people who are very upset by this policy and who making sure to exempt their teaching materials from being reused. As of today, there are approximately 81 faculty members who have registered their courses on https://policy81.learning.ubc.ca/, though I had to count by hand and some people registered different courses at different times and showed up at different places on the list therefore, so some may have been counted twice. That’s a fairly small number of the over 5000 faculty members between the two campuses of UBC (Vancouver and Okanagan). But there’s no way to tell how many people are putting notices on their individual teaching materials saying they may not be reused without permission.

On March 17, 2014 the UBC Faculty Association (our faculty union) filed a grievance with UBC’s Vice Provost and Vice President Academic. The letter is currently posted online here: http://www.facultyassociation.ubc.ca/docs/news/policy81_FAgrievance.pdf  Among other things, the grievance states that the policy restrains faculty from fully exercising their rights under copyright law and that it infringes on academic freedom. On April 15, 2014, UBC denied the grievance, and from what I can tell, the issue is now going to arbitration.

On April 23, 2014, the UBC Faculty Association sent an email to its members (currently available on the front page of their website, but it will likely be replaced sometime soon) saying that they had issued a blanket “opt out” of the policy for all its members.

We heard loudly from large numbers of you that you did not agree with having to individually opt out of that policy to protect your teaching materials – and that you also objected to the administrative burden this policy has created. In response to the clear message we have received from our members, including a request for a blanket opt-out direction, we have issued such a blanket opt out on your behalf with this letter.  Consequently, your teaching materials are now protected from being appropriated by the University for its own purposes, unless you indicate clearly that your materials are to be shared.

The Faculty Association’s blanket opt out letter can be read here. It’s currently also posted online here: http://www.facultyassociation.ubc.ca/docs/news/policy81_blanketoptout.pdf

The policy has also been brought to the attention of the Canadian Association of University Teachers, which I think is an association of various faculty unions at institutions of higher education in Canada. CAUT sent a letter to the UBC President in February 2014, criticizing the policy and saying they may have to censure the UBC administration if the policy is not suspended. The university president’s response argued that CAUT’s criticisms were unjustified, and CAUT responded in May by saying that censure will be imposed on UBC in November if parts of the policy are not withdrawn by then.

 

What went wrong

 

A lot, really. The following are the problems noted by the Faculty Association in various letters and emails about Policy 81. In the next post I’ll add my own concerns, specific to worries about what this policy may have done to efforts to promote open education.

Procedural problem

This is an important concern, but not one I’ll spend a lot of time on because I don’t understand it fully. The faculty union argues that the proper negotiating process was not followed in passing the policy; I THINK the problem is that the policy concerns intellectual property, and the union is arguing that, based on a precedent set in a previous arbitration case, such matters must be handled through the collective bargaining process (I’m getting this from this letter by the Faculty Association, but I could be quite wrong!).

Opt-out

As a friend of mine said on Twitter, no policy that requires opt-out is likely to be popular. This was one of the major complaints against the proposed policy before it was passed, I think. Many faculty members are happy to share teaching materials–indeed, a number of us (including me) make an effort to put CC licenses on most or all of them. But to mandate that once you share your teaching materials in some way (and what it means to “share” is vague…see below) you are sharing with the entire UBC community unless you opt out angered many people.

Vagueness

The policy states that once one “shares” teaching materials, those materials can be revised and reused by anyone in the UBC community. But what does it mean to “share”? Given the policy’s ostensible purpose, I think one thing it means is that if I give a syllabus or a set of essay topics to someone, they can give it to someone else at UBC who can then revise and reuse the materials. That is what has happened with the example of essay topics being revised and reused in a team taught course for example, as I discussed earlier. A set of essay topics was shared within a teaching team, and a member of that teaching team kept the essay topics and later shared it with another teaching team, who revised one or more of them and reused them. So the policy would mean that this sort of practice is acceptable, whereas officially it probably wouldn’t have been if we didn’t get express permission.

But does it also mean that if I make teaching materials available on a public website, where students and others can view them, that is deemed to be “sharing” such that now anyone from the UBC community can revise and reuse them? The policy is not clear on that question, but if it does mean that I fear that it could cause some people to stop posting teaching materials on public sites and go back into the closed LMS environment. But then again, the policy isn’t clear on whether posting teaching materials to the closed LMS system here at the university constitutes “sharing.” I would argue that it shouldn’t, because it’s kind of like handing out paper materials in the classroom, only allowing for the saving of paper if students don’t mind reading things online. And I don’t imagine that giving out syllabi and assignments in the classroom constitutes the type of sharing that the policy is referring to.

Copyright law

The policy states that faculty members retain copyright on their teaching materials. Thus, unless we have expressly put a license on them stating they may be used in certain ways without getting explicit permission, then anyone who wants to revise and reuse them has to get that explicit permission. That’s how copyright works in Canada.

I was trying to think of whether there’s an analogous situation to help think through this particular issue, some situation in which one gives someone else a license to use one’s copyrightable materials without them having to ask permission each time. And of course I came up with social media sites like Facebook, Google Plus, Twitter; I also thought of MOOC companies like Coursera. For such sites, the terms of use include the provision that by using the site one is granting the company a license to use the things you post (in part, so that they can post them at all, but sometimes also for other purposes, like allowing others to re-post what you post). Twitter’s terms of service say, for example:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Coursera’s terms of service are similar:

With respect to User Content you submit or otherwise make available in connection with your use of the Site, and subject to the Privacy Policy,you grant Coursera and the Participating Institutions a fully transferable, worldwide, perpetual, royalty-free and non-exclusive license to use, distribute, sublicense, reproduce, modify, adapt, publicly perform and publicly display such User Content.

Could we think of Policy 81 analogously in any way? By sharing your teaching materials (okay, we need to figure out just what “sharing” means), you grant anyone at UBC a license to modify, use, redistribute them, just like by using Coursera one agrees to allow Coursera (and the participating institutions) to modify, use, redistribute what one posts? I suppose so, but here’s the downside: people can just choose to not use Coursera, Facebook, Twitter, Google Plus, etc. if they don’t like these terms, and the analogous situation is that people can just opt out of sharing teaching materials at all. Which is not a good outcome (and is what is starting to happen).

Use of teaching materials for flexible learning initiative

UBC has an initiative at the moment to encourage faculty to engage in “flexible learning,” which seems to mean using things like “blended” courses (both face-to-face and online), “flipped classrooms,” and other ways to be more flexible about teaching, learning, and credentialing (e.g., badges). In an email to members, the President of the Faculty Association warned that one of the reasons behind Policy 81 may be for UBC to be able to use teaching materials to generate additional revenue by implementing them in online courses that the university charges money for.

Academic freedom

The grievance filed by the Faculty Association states, as its first point, that Policy 81 violates faculty members’ academic freedom. I am not actually sure what the argument here is; I’d love to hear in the comments if anyone knows!

 

In the next post, I discuss what impact this policy could have on efforts to increase open education at UBC.