By Rob Reynolds
I want to begin this post with a few important disclaimers.
I am not an attorney, even thought I do spend my fair share of time reviewing commenting on, and drafting language of contracts. In addition, I am not an expert on copyright, nor is this post really about copyright law or the nuances thereof per se. Finally, even though I am referencing the litigation filed by three major publishers against Boundless Learning (see the official complaint here), I am not concerned nor focused on any specific details related to that lawsuit. If you want further insight into the complaint and the companies involved, I suggest you consult these articles by Audrey Watters and/or Nick DeSantis.
As further context for my comments, my intent is simply to raise philosophical questions related to general education textbook and course content, its origins, and the rights of ownership. I am approaching this topic as an author and researcher, instructor, former publishing executive, and educational technologist who has focused on OERs. While there may be legal aspects to the questions I raise, I will leave those in the legal profession to address them.
With those introductions, let’s turn our attention to the litigation filed by Pearson, Cengage, and Macmillan agains Boundless Learning. The complaint the publishers are bringing is related to copyright infringement, related specifically to Boundless textbooks created for Introduction to Biology, Introduction to Psychology, and Principles of Economics. The courses in which these textbooks can be used are among the top-selling course areas for textbooks in the U.S. While Principles of Economics is not technically a General Education course, it is a foundational or entry-level course that is focused on the core set of information that a student should know about Economics.
While the attorneys and court will have to settle the issue of whether or not Boundless Learning infringed on the copyrights of the publishers related to these books, there are a number of assertions or claims in the complaint that raise questions about the actual originality and provable ownership of the information in question.
First, I want to ask the general question related to the origins and ownership of General Education or foundational learning content. Please note that my question is not about the personal flavor integrated into packaging the presentation of the content (the style of writing in a textbook or the graphic design elements). What I am asking is whether we can legitimately point to any of the General Education or foundational textbooks and say that the content contained in those book is either unique to that writing source or has its origins in that source. While Neil Campbell was a qualified professional (with a Ph.D. in Plant Biology from UC Riverside and who taught as an instructor for more than 30 years), the very scope of his introductory textbook Biology dictates that all of the core information is actually derivative of other sources — common definitions and scientific explanations from the scientific community, common practices of Biology instructors who both taught Campbell and were his colleagues over the course of a career, and hundreds if not thousands of reference and core scientific resources that he consulted through his own academic training until the end of his teaching/writing career.
This collection and presentation of commonly accepted and fairly generic information is actually the core or any General Education textbook. And, while it may smack of sacrilege (melodramatic piano flourish), let us not forget that among the sources generally consulted or reviewed when writing General Education textbooks are other General Education textbooks from the same course area. This may occur as part of the initial textbook planning process (looking at the competition and planning strategic differences in approach, for example), or certainly as a step in the preparation of new editions. Also part of this planning is the comprehensive review of course syllabi from “target” institutions (potential adopters of the textbook), as well as numerous interviews with instructors teaching the course(s) covered by a given textbook.
Given this reality, that a General Education or foundational textbook consists of commonly accepted information from pre-existing resources and is vetted against the course designed and pedagogical practices of other professionals, I will rephrase the first question — what part of a General Education or foundational textbook can be considered unique and/or original?
I think the answer to that question, at least from a content information perspective, is very little or none. General Education textbooks lack the unique characters, original information, or the creative narrative structures that make other books identifiable.
This leads us to our second, or follow-up question. If General Education textbooks, by design, are composed using generic and commonly accepted core content information and definitions, what about these products could be considered original? The easy answer to this question is that the author’s actual personal style or specific words used to describe the information are unique, as are any specific design elements used to present the content. I’m generally okay with that response, with the caveat that the words and personal style that appear to be unique are likely more derivative than they appear to be. Like the content itself, these are heavily influenced by the resources (informational and human) consulted over the years. Still, I will allow that, keeping with our general attitudes about plagiarism, we should let authors claim the uniqueness of their words and writing styles (even around public information), as long as they can prove that it is indeed unique and original.
Another answer to my second question is that the pedagogical approach and/or ideas presented within the textbook can be seen as unique to the author. Again, I will stipulate this to the extent that the particular pedagogical approach actually originated with the author of a specific textbook. If I were to write a Spanish textbook, however, and included one of the many already popular pedagogical approaches to teaching languages (such as Total Physical Response), even the pedagogy would not actually be original or unique.
Now, while the Plaintiffs in the litigation against Boundless Learning do actually cite the elements above in their copyright infringement claims, another answer they give to the question about originality is related to the specific identity, scope, and sequence of content included in their textbooks. To wit, here is Section 19 under the General Allegations section of the complaint:
19. In writing and updating and revising their textbooks, Plaintiffs and their authors repeatedly decide, what material to include, in what order, and in what manner to present it. Not only do they decide the general topics to discuss in their books and the order of those topics, but within each topic they must decide what sub-topics and sub-sub-topics to include, and in what order and at what depth those sub-topics and sub-sub-topics should be discussed. This distinctive selection, coordination, arrangement and emphasis-of-content within their textbooks is the direct result of subjective choices made by the authors and editors, leveraging inter alia their many years of teaching and comprehensive expertise in the material, as well as their considerable understanding of the needs of the scholastic community.
We can see similar claims in sections 26 and 42.
26. Campbell’s Biology is organized into eight (8) separate units. Those units are then segregated into fifty-six (56) individual chapters. Within the fifty-six (56) chapters, the textbook segregates into two hundred sixty-two (262) key concepts.
42. Defendant overtly touts that it copied “100%” of what Plaintiffs and their authors elected to include in the book and how they chose to arrange it. Going even further, Defendant expressly claims that it has calculated the actual depth of coverage that Plaintiffs have accorded each topic, boasting that its copying replicates Plaintiffs’ depth-of-coverage, topic-by-topic. Defendant explained that it does this by “curating” academic content from various universities(which it refers to as Open Educational Resources) and then “map[ping] this content to cover100% of the same material in the same order and depth” as Plaintiffs’ textbooks.
These sections, in particular, lead me to ask a third question — who owns the scope and sequence (Table of Contents ) of a course?
When planning a General Education textbook, because of the investment, all publishers go to great lengths to make certain that the scope and sequence of their content maps correctly to the syllabi and content coverage in the courses of the institutions that they hope will adopt the textbooks. While one publishing President once told me that a good textbook TOC really was the national curriculum for that course, I am willing to bet that a majority of hardworking higher education instructors would be willing to disagree. If anything, from my experience as an author and instructor, the TOC and key concepts are actually and necessarily a reflection of what is taught in institutions. That would mean that, other than stylistic elements, it is not original or unique.
To our the question more specifically with regards t the referenced complaint, what about the 256 key concepts in Campbell’s Biology are actually original? The wording of the key topics perhaps (doubtful)? The number of key concepts (I suppose you could make the argument)? How can we say that the topics and sub-topics of textbook (and their order) — all reflective of common practices across curriculum institutions in the U.S. — are unique?
Personally, I don’t think anyone can legitimately make this claim. More importantly, I suppose, is that fact that such claims will become less relevant int he coming years as we move away from the content collections we call textbooks and into disaggregated content models. At the disaggregated level — specific content chunks — we can have meaningful discussions around originality and ownership. Having such discussions based on the structure of outdated delivery models, however, is really just good fodder for a Good Friday philosophical reflection.