Open Educational Resources and the University: Law, Technology, and Magical Thinking

Abstract

For the better part of a decade, universities have shown a dedication to expanding knowledge-building and information sharing practices beyond the confines of the university campus, with many leading institutions dedicating significant attention and resources to the creation of an international educational commons. These efforts towards open access education and global participation have begun to gather in force and unity, and are coalescing under the broad umbrella of an Open Educational Resources (OER) movement. While universities are united by shared academic traditions and norms, OER policies at various institutions are developing in a piecemeal, often contradictory, fashion. This disparity is, in large part, due to the complex technological and legal implications involved in creating, organizing, and disseminating massive amounts of educational resources. Although developing OER policies in a trial and error fashion has lead to some innovative results, we will argue that the movement would benefit from concerted efforts by policymakers on foundational legal and technological issues.The paper will begin with a detailed analysis of the legal and technological issues facing university-created OER. Next, we will describe the current OER policy landscape based on the efforts of a few key leading institutions: MIT, the University of Michigan, and Carnegie Mellon. We will examine how each university addresses and attempts to resolve the legal and technological issues implicated by OER. In particular, we will discuss the problem of magical thinking, the reliance on semi-legal arguments and legalistic, if legally incorrect, reasoning, to support open educational objectives. We will conclude by offering some suggested policy amendments and strategies that university may find helpful as they continue their important work on OER.It is our belief that this effort will help universities and scholars better understand the ways in which their OER efforts intersect with the law and the efforts of like-minded actors and institutions, and that this increased understanding will lead to a more effective and unified OER movement. We also believe that policymakers will become more effective in shaping policy in ways that support OER if they better understand the needs, traditions, and challenges facing universities. The OER movement has a tremendous potential to do vast good, and there are many actors working towards this goal; it is our hope that our research and analysis can aid this effort.