Shuttleworth Foundation: The world as you see it

The Story
(Excerpt from a longer essay that I drafted for the Shuttleworth Foundation.)

It is 2013. I sit in the audience of the Cambodia Teachers of English to Speakers of Other Languages (TESOL) conference as the plenary speaker recommends extensive reading programs as a proven method for English language development, advocating simplified, print books (graded readers) that the Cambodian English teachers cannot afford. A year later, I listen to the head librarian at a Japanese University inform me that they “bought” 250 eBooks for students learning English at 3 times the normal cost of an identical print book “for life” that are owned and hosted via the online book company, Maruzen. When I ask the librarian how they know that the eBooks not in their library will be accessible “for life”, they reply that Maruzen “guarantees it”. When I accessed the eBooks myself, I discovered the restriction of one simultaneous user per each eBook. I see a world where educators and students will face multiple legal, digital, and cost barriers when trying to acquire texts for utilization in digital environments and devices. I foresee a future with fewer physical books in print and fewer libraries archiving print books, where only a privileged few will have access to electronic texts.

Paradoxically, trends in educational standards and teaching methodology are advocating the use of digital learning environments to support inquiry-based, student centered learning. While research suggests that these new approaches produce positive results with students’ learning, the underlying issue of procuring content for online use and digital distribution of such content has not been fundamentally addressed or understood by many educators. ‘Open’ is not an afterthought or a concept that can later be handwritten in before the title of ‘Educational Resource, but essential to any digital resource and online learning.

The Fundamentals
Hardin (1968) introduce the concept of the “tragedy of the commons”, postulating that unrestricted use of a commons, the example being a meadow, would result in the destruction of the commons caused by overgrazing from too many animals. The tragedy of the commons became the basis of private property rights. The rationale was that by ensuring that private property rights were clear and protected in law, in turn, this would also prevent a tragedy of the commons from occurring.

Later, Heller (1998) proposed the tragedy of the anticommons, suggesting that over privatization of resources with multiple right holders, prevents utilization of a resource. An example of this would be 10 people owning a single piece of property, where it would be difficult for all 10 people to agree on how to use the property or when to sell it. Therefore, said property would be left untouched because consensus could not be reached between the numerous right holders. In terms of a meadow, the meadow may return to being a forest. In terms of a copyrighted print book, the book will become out of print and then perhaps the remaining physical copies will be lost or destroyed over time.
In the physical world, the tragedy of the commons and anticommons are problems that current legal structures try to prevent, a balancing act between too much control of a resource and having no control at all over a resource.

Serendipitously, in a digital environment, the tragedy of the commons and anticommons are solved. Boyle (2003) states that property law defines tangible property (physical stuff) as having two characteristics. First, physical property has to be rivalrous in use (I can’t eat the apple that you are eating). Second, physical property has to be susceptible to overuse (over fishing in a lake). The serendipitous aspect of digital resources is that they can never be rivalrous in use because infinite, perfect copies of a resource can be created at almost no cost. This then further solves the problem of overuse. Everyone who wants a digital resource can have it, with no determent to other potential users.

The Rabbit Hole
In a crazy, Alice and Wonderland kind of way, this is what is happening. Digital Rights Management (DRM) systems and software are used to artificially restrict access to digital goods in order to mimic physical property law, which is legally supported via copyright law. Additionally, the extension of copyright in 1998 in the U.S. halted copyrighted books from entering the public domain until after 2019, books that were slated to become open domain eBooks and perhaps compete with copyrighted DRM eBooks. Concurrently, DRM eBooks are not legally ‘books’ and therefore not protected under the first-sale doctrine meaning that DRM software can be coded to determine every aspect of a digital eBook as decided by the distributor or publisher. Libraries and individuals do not own the eBooks that they subscribe to, nor are they free to resell, distribute, or archive DRM eBooks (Walters, 2014). This is a huge barrier for libraries that are faced with patrons desiring eBooks, without said patrons understanding that the eBooks are overpriced, restricted via DRM software, file formats, or devices, and would disappear when the library cease to subscribe to the eBook distributor such as 3M or Overdrive.

Ironically, only the Disneys and J.K. Rowlings of the world actually make money on their copyrighted works. Most books never find an audience and quietly molder, being out of print, unavailable, but with someone still owning the copyright for the work (Heald, 2014). People pass away, copyrights are passed on to heirs or bought and sold. Extending this process via extended copyright makes tracking down copyright holders all the more troublesome and many times you are interacting with not just the author but the publisher or illustrator. A casebook example of a tragedy of the anticommons. Works can even pass into the public domain, but it is nearly impossible to even confirm if the work is in the public domain. The resulting orphaned works are then left moldering in private spaces for fear of lawsuits from uncontacted copyright holders, effectively causing some print books to be unequivocally lost forever. Thereby, we have the strange situation of being able to easily provided everyone with a copy of a book that they would want in the form of a digital eBook, but at the same time, manufactured restrictions to prevent copyrighted eBook distribution while simultaneously laws that are reducing the amount of print books that actually exist and possibly could become open domain eBooks in the future.
Furthermore, libraries are facing difficult decisions as their eBook costs negatively affect the number of print books they can purchase and conflicts with public libraries trying to adhered to their founding principles of providing free and open access to books. Finally, educators brave enough to use a copyrighted work in an online environment for education are often then tasked with making the legal argument of fair use, a long and arduous process with the burden of proof placed on the educator, not the copyright holder.

Cutting the Gordian Knot
From an educational standpoint, the extension of copyright, current copyright law, and the use of DRM software greatly increases the time and labor needed to create new, digital materials or increases the associated cost of purchasing access to existing copyrighted materials. The best course of action for educators and students is to avoid the issues entirely and focus on utilizing open domain content that can freely be adapted for education.

Currently, the Internet Archive and Project Gutenberg digitizes open domain books as eBooks while a partner, Librivox, creates open domain audio books from the created eBooks. Fortuitously, books will again start to enter the public domain in 2019 in the United States. Quite literally time is on our side and herein lies an immense opportunity.

It is 2016. I am finishing my second Masters in Digital Education from the University of Edinburgh. I see a future with print ready, illustrated eBooks with a recommendation engine analyzing lexical metadata to suggest level appropriate eBooks to students. I imagine children listening to the ‘Wonderful Wizard of Oz’ as they read along on a smart phone with a non-English menu as other students read along with their own personal print copies. I foresee a vast library of eBooks, audio books, and user generated metadata on a wirelessly capable Raspberry Pi 3 computer held in the palm of an English teachers hand in Cambodia. I envision the digital library, tailor-made for utilization in online K-12 language arts, English as a Second Language programs, and for English as a Foreign Language students and educators all over the world.

Cited references:
Boyle, J. (2003). The second enclosure movement and the construction of the public domain. Law and contemporary problems, 33-74.
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1273&context=lcp

Heald, P. J. (2014). How Copyright Keeps Works Disappeared. Journal of Empirical Legal Studies, 11(4), 829-866.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290181

Heller, M. A. (1998). The tragedy of the anticommons: property in the transition from Marx to markets. Harvard law review, 621-688.
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1608&context=articles

Walters, W. H. (2014). E-books in academic libraries: Challenges for sharing and use. Journal of Librarianship and Information Science, 46(2), 85-95.
http://128.220.160.145/journals/portal_libraries_and_the_academy/portal_pre_print/current/articles/13.2walters.pdf

Additional references:
Note: The Lessig (2000) paper is not freely accessible on the Internet, but behind a paywall at HeinOnline.

Akerlof, G. A., Arrow, K. J., Bresnahan, T. F., Buchanan, J. M., Coase, R. H., Cohen, L. R., Friedman, M., Green, J. R., Hahn, R., Hazlett, T. W., Hemphill, S. C., Litan, R. E., Noll, R. G., Schmalensee, R., Shavell, S., Varian, H. R. & Zeckhauser, R. J. (2002). The copyright term extension act of 1998: An economic analysis. Washington DC: AEI-Brookings Joint Center for Regulatory Studies.
http://www.brookings.edu/research/reports/2002/05/copyright-litan

Brauneis, R. (2015). A Brief Illustrated Chronicle of Retroactive Copyright Term Extension. Social Science Research Network.
http://dx.doi.org/10.2139/ssrn.2611311

Hardin, G. (1968). The tragedy of the commons. Science, 162(3859), 1243-1248. https://www.sciencemag.org/content/162/3859/1243.full

Heald, P. J. (2008). Property rights and the efficient exploitation of copyrighted works: an empirical analysis of public domain and copyrighted fiction best sellers. Minnesota Law Review, 92, 1031.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955954

Korn, N. (2009). In from the Cold: An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public. JISC and the Collections Trust. https://sca.jiscinvolve.org/wp/ipr-publications/files/2009/06/sca_colltrust_orphan_works_v1-final.pdf

Lessig, L. (2000). Copyright’s First Amendment. UCLA L. Rev., 48, 1057.
Rappaport, E. B. (1998). Copyright term extension: Estimating the economic values. Congressional Research Service Report for Congress. Library of Congress. http://ipmall.info/hosted_resources/crs/98-144.pdf

Smith, M. D., Telang, R., & Zhang, Y. (2012). Analysis of the potential market for out-of-print eBooks.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2141422

U.S. Copyright Office. (2015). Orphan Works and Mass Digitization: A Report of the Register of Copyrights.
http://copyright.gov/orphan/reports/orphan-works2015.pdf