I submitted the following comment today on the Department of Education’s proposed rule “Open Textbook Pilot Program.” The deadline to submit a comment is April 30, so read the rule and get your comments in soon.

It may surprise readers to find me arguing against requirements of openness in some of my comments. But in the spirit of “pragmatism before zeal,” I argue in my comments specifically against three unintended consequences of open requirements as they pertain to LMSs, efficacy research, and assessment security / adoptability. It is true that, if the Department acts on my first two comments below, there are aspects of the work that might otherwise have been open that will not end up being open. However, if the Department does act on these comments, the parts of the work that are open will be more widely adopted, will result in more students saving more money, and, most importantly, will result in more students learning more.

To Whom It May Concern:

My name is David Wiley. Please allow me to say a few words regarding my qualifications for commenting on the Open Textbook Pilot Program. I hold a PhD in Instructional Psychology and Technology from Brigham Young University. My publications about open education have been cited over 4000 times (https://scholar.google.com/citations?user=M47HR7IAAAAJ). I am the author of the 5Rs framework (https://openeducationalresources.org/) that many colleges and universities use to frame their open education initiatives. I am the founder of the Open Education Conference, which recently met for its 16^th annual convening. I previously ran a major university research center dedicated to open education (the Center for Open and Sustainable Learning at Utah State University) and I am currently the Chief Academic Officer of Lumen Learning. In calendar 2019, Lumen Learning directly supported over 250,000 students in using open educational resources. We estimate that these students collectively saved over $30M. Another 75 million learners freely accessed the open educational resources on our website in 2019.

In this letter I am consolidating previous comments I have made on this program as well as adding new comments.

The Definition of “Open Textbook”

The proposed definition of “open textbook” reads, in part:

“An open textbook may also include a variety of open educational resources or materials used by instructors in the development of a course and those learning activities necessary for successful completion of a course by students. These include any learning exercises, technology-enabled experiences (e.g., simulations), and adaptive support and assessment tools.”

The text is unclear regarding whether or not the tools that provide adaptive support, the tools that provide assessment capabilities, and any other tools that might be used to store, manage, deliver, augment, or support “open textbooks” must also be openly licensed. The text is also unclear regarding whether or not these tools must be made available to students for free. It is absolutely critical that the rule clarify these questions.

Specifically, it is critically important that the answer to these questions be “no.” The overwhelming majority of “open textbooks” used in US higher education today are delivered to students via learning management systems (LMSs) like Blackboard, Canvas, and Desire2Learn. Grant recipients will rightly want to continue this practice. However, the majority of LMSs are (1) not openly licensed and (2) have hosting, maintenance, and other associated costs that institutions frequently pass on to students (e.g., as part of a mandatory technology fee). Requiring grant recipients to use only openly licensed or freely available tools to support the delivery, usage, maintenance, and support of “open textbooks” will effectively prohibit awardees from using their own learning management systems to offer classes with “open textbooks.” This would be a horrible consequence.

It is also true that the overwhelming majority of non-LMS technology platforms that provide adaptive, assessment, and other complementary capabilities are neither openly licensed nor freely available. Requiring all tools used in conjunction with “open textbooks” to be openly licensed or freely available will also prohibit awardees from leveraging a wide range of teaching and learning capabilities in conjunction with their “open textbooks”. It would also be quite curious, given that the primary technology platforms used by previous awardees under this program – namely, LibreTexts and Smart Sparrow – are both proprietary technology platforms.

A prohibition on using proprietary technology platforms in conjunction “open textbooks” would also sabotage Proposed Priority 3(b), which requires awardees to evaluate the impact of open textbooks on learning outcomes and course outcomes. When the treatment group of students are using “open textbooks” that are required to be essentially static content (like a PDF) delivered outside of the campus learning management system, and the control group are using equivalent content integrated within the LMS and complemented by advanced adaptive, assessment, and other capabilities, the impact of “open textbooks” on student outcomes is all but guaranteed to be negative. This would also be a horrible consequence of the proposed rule.

In conclusion, the proposed rule should be amended to clearly state that, for the purposes of the grant, the tools used in conjunction with “open textbooks” are not required to be either openly licensed or freely available.

Licensing of Ancillary Resources

The proposed rule mentions “ancillary learning resources,” “ancillary instructional materials,” and “ancillary materials” but does not define any of these terms. While instructional content produced under the grant must be made available under a “worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to the public to exercise any of the rights under copyright conditioned only on the requirement that attribution be given as directed by the copyright owner,” the licensing status of ancillaries is never addressed directly in the proposed rule. It must be.

Presumably, the category of ancillaries includes individual assessment items, assessment banks, complete quizzes, homework problems, assignments, rubrics, and model answers. It is critically important that there NOT be a requirement for assessments designed to measure student learning to be released under the same open licensing terms as instructional content. If assessments designed to measure student learning (hereafter, “assessments”) are required to be openly licensed, the department’s investment in their creation will be wasted within a matter of months.

Assessments from a wide range of commercial publishers and OER providers inevitably end up on cheating websites where students share questions and answers with one another. Once that happens, all a student has to do is type a partial question into Google and they can immediately find correct answer information. When assessments are traditionally copyrighted, a takedown notice can be issued to a website publicly sharing copyrighted assessments. However, when assessments are openly licensed, a cheating website is within its rights to continue publishing homework and quiz answers. While the game of whack-a-mole with various cheating sites that publish copyrighted assessments can be time consuming, copyright at least makes it possible to demand that assessments are taken down. When assessments are openly licensed, there is no recourse for the assessment creator. In other words, the open licensing of assessments undermines assessment security.

Faculty frequently spot check questions in assessment banks to see if the answers are available to students online. If they find the answers online, faculty know they can’t use those assessments in their courses. Inasmuch as the availability of ancillaries like assessments is a major factor in faculty decisions to adopt “open textbooks,” the goals of the proposed rule would be served greatly by encouraging the creators of assessments to maintain traditional copyrights on those assessments. The language of the proposed rule should make it clear that they are permitted to do so.

In conclusion, the proposed rule should be amended to clearly state that, for the purposes of the grant, the ancillary resources created in conjunction with “open textbooks” are not required to be openly licensed.

Technical Assistance Providers

As currently written, an “eligible applicant” is a consortium comprised of “at least” IHEs, a single educational technology or curriculum design expert, and an advisory group of “sector partners.” While the language “at least” in the definition of “eligible applicant” does not rule out the inclusion of organizations that provide technical assistance in consortia, the proposed rule should be amended to specifically state that “technical assistance providers” are permitted to be members of consortia. Technical assistance providers have specialized expertise that will likely be valuable to grantees under the program. For example, Creative Commons, the organization that creates the copyright licenses used by the overwhelming majority of “open textbooks,” has previously provided technical assistance to recipients of federal grants as awardees have worked to comply with open licensing requirements. There is no reason to discriminate between non-profit and for-profit entities in the provision of technical assistance to grantees.

In conclusion, the proposed rule should be amended to make clear that consortia with technical assistance providers as members are “eligible applicants,” and that both non-profit and for-profit entities are eligible to serve as technical assistance providers.

Thank you for the opportunity to comment on the proposed rule. I look forward to the Department following Congressional direction this year in awarding a large number of smaller grants under the Open Textbooks Pilot Program.

Yours,

David Wiley, PhD