With just 7 days before the end of the Obama Administration's second term, the Department of Education issued a new rule today that tackles an important question: should all learners have the right to access and use educational materials produced with the Department’s public funds?
This rule has long been in the works. Back in November of 2015, the Department announced a proposed regulation based on the idea that, yes, learners should have that right. Nearly 150 organizations submitted feedback on the proposal, including comments from our Learning Technologies Project here at New America. (The rule has been under review by the Office of Management and Budget since last summer.)
The final rule requires an open license to be applied to all copyrightable intellectual property produced by organizations who win competitive funding from the Education Department.* Much of the funding that the Department administers is awarded in formula grants to states, or through direct funding like student loans. But it also funds competitive grants, each with a different goal. States, school districts, colleges and universities, and other interested educational organizations submit proposals—only the best applicants receive funding.
Under this new rule, applicants will commit to making the content they produce—any grant deliverable, as well as program support materials that are necessary to use the deliverables—publicly available under an open license as a condition of their grant agreement. (One key change made to the final rule provides grantees the possibility of using an open license that “limits use [of deliverables] to noncommercial purposes.” More analysis on the implications of this change to come.) This rule will be phased in during 2017, and will be fully implemented by the 2018 fiscal year for all applicable competitive grants.
As I wrote when the rule was proposed, the Department’s stated goals were threefold: to allow it to be more strategic with its limited investments; to allow experts in the field to improve upon and refine resources; and to make materials more readily available to under-resourced school districts, community colleges, workforce training programs, and other education providers.
In describing the potential impact for the rule, the Department spotlighted recent work completed by the University of Texas at Austin with $200,000 it received from the Department’s National Language Resource Centers (LRC) program. While UT-Austin was not required to do so, it opted to make the educational resources that were developed for 16 languages openly available on its Center for Open Educational Resources and Language Learning (COERLL) website. According to a Department estimate, there are around 500 open educational resources, or OER, that have been made available on the COERLL site, including "curricula, lessons, worksheets, assessments, textbooks, videos, podcasts, research studies, open apps for student learning, and interactive platform materials.”
UT-Austin was one of sixteen grantees, who were awarded $2.8 million in total to develop language resources. Imagine the public benefit if all those materials had been made publicly available as a condition of funding.
There are several Department programs that are not subject to the rule, notably the Department’s Ready to Learn Television program, which funds public media organizations like PBS to promote early learning and school readiness through educational television and digital media. In response to specific public concerns, the Department also explicitly clarified several other areas where the rule does not apply, including the Small Business Innovation Research Program, peer-reviewed scholarly publications that arise from any scientific research, and others.
Although the rule only applies to Department of Education competitive grants, it joins the efforts of several other agencies such as the Departments of Labor and State in moving toward open licensing as a condition of competitive funds. As the evidence base grows demonstrating that open use policies have a positive impact, other agencies throughout the federal government will hopefully follow suit. While there has been some concern about the fate of recently enacted regulations under the next Administration, it would take an act of Congress to overturn them—a development that I and many other proponents of open licensing will be watching for closely.
*Exceptions to the rule are outlined in the final regulation, accessible here.