In This Case, Publishers Should Root for the OER Guys

When an organization that has created open educational resources (OER), informally known as “free stuff,” and sues FedEx, how much should publishers care about the outcome?

The answer: a lot.

In case you hadn’t heard, a non-profit curriculum provider called Great Minds has filed a federal lawsuit against FedEx. Here’s the background. Great Minds is the creator of a curriculum product called Eureka Math, which it gives away to schools. Among other places, Eureka Math is available is at EngageNY.org, a website developed by the New York State Education Department of Education to make OER materials available to educators in New York and elsewhere.

Great Minds doesn't mind (sorry) when educators print out its materials and copy them for their own use, but some educators have been getting copies made at FedEx stores. That, according to Great Minds, is a commercial use of the materials. It wants FedEx either to stop making copies or pay royalties to Great Minds out of whatever money it is making from providing the copying service.

Great Minds argues that the materials may be free but that it still controls the copyright. Since the license under which Great Minds makes its curriculum available to educators allows copying only for non-commercial purposes, Great Minds argues that once FedEx is involved, the copying is a commercial activity and Great Minds has a right to a piece of the action.

It’s worth noting here that Great Minds sells printed versions of Eureka Math through its own print partner, Emprint/Moran, so it’s not surprising that Great Minds is unhappy about what it sees a competition from FedEx.

The outcome of the lawsuit is important to publishers for a couple of reasons. First, the very fact that it is happening helps establish the idea that free of charge is not synonymous with free of copyright. When an OER provider decides to allow educators to use its content without paying, it is not releasing that content into the public domain. The materials may be free, but the OER publisher expects the same protections from unauthorized use as a “real” publisher does.

The other reason publishers (and especially educational publishers) should care is that they need to figure out how to co-exist with OER providers in today’s marketplace, and whatever publishers might think about the merits of the case, this lawsuit will help establish the rules of engagement.

A few years ago, educational publishers thought that they could compete with OER providers mainly on the basis of quality. Their theory was that OER providers were amateurs at a professional’s game, and that educators would be willing to pay a premium (meaning more than zero) for content developed by professionals.

However, funders like the Gates Foundation and other deep-pocketed organizations have given OER providers enough financial support that they clearly are not going away. And a few OER providers -- Great Minds being one -- have demonstrated enough staying power, and created good enough products, that publishers are no longer looking down their collective noses at them.

Acknowledging that OER is here to stay, some publishers are taking an if-you-can’t-beat-‘em, join-‘em stance toward the providers. Recognizing that raw content to some degree is becoming commoditized and that high-quality educational products mix content with value-added services such as teacher training, assessments, and the ability to differentiate instruction for students of different abilities, some are even integrating OER into products that educators pay them for.

If more and more products contain a mix of OER and publishers’ copyrighted materials, the creators of these products will want educators to understand that they can’t just assume it’s OK to copy them – even the OER portions. And since it’s unrealistic to expect educators to understand the nuances of copyright law, it is in publishers’ interests for educators to be looking over their shoulders when they head to the copying machine -- either at school or at the local FedEx store.

So, from the point of view of pure self-interest, publishers should be hoping that Great Minds prevails in court.

This situation brings to mind an issue that came up while I was doing a project years ago for non-profit OER provider (one of the few I’ve worked with) that I’m not free to identify here. The organization had developed a language arts curriculum that was available on the Web free of charge. A large school district was using it, and teachers were getting tired of printing out the lessons and copying them.

The district asked my client if it could provide printed versions. My client lined up a printer to do the work and asked me how much I thought they should charge for the printed materials. Specifically, they asked me if I thought it would be OK if they marked up the cost of the paper and printing services by about 15%.

I told them that since the printed versions would be books, they should hire a designer to format the content properly in book form. Then, I said, they should price the books at about four or five times their manufacturing cost.

The client was surprised, but I explained that if they followed my advice they’d be honoring a well-established principle: that the value of a book in hard-copy form is not just a function of how much ink and paper is required to produce it. Instead, I said, the price should be based on the intrinsic value of the intellectual property captured on its pages.

“Welcome to publishing,” I told them. Great Minds think alike, you might say.