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Home » Conference » LILI 2003 » LILI 2003 Papers » Public space and public hyperspace: access and ownership

Public space and public hyperspace: access and ownership

Nick Jackson, University of Kent at Canterbury

Nick’s paper is an attempt to clarify his own thinking about a number of issues which hover around and impact upon his nascent National Teaching Fellowship (NTFS) project ‘Getting access: access to land and the right to roam’.

(Paper for LILI 2003, presented by Nick Jackson, Lecturer in Law at the Kent Law School, University of Kent at Canterbury, and 2002 National Teaching Fellow. Moral rights asserted. E-mail: n.s.r.jackson@ukc.ac.uk.)

Following CB MacPherson, Kevin Gray and others down a pretty well trodden path, my NTFS project will use issues about access to land to encourage students to think about dominant ideas of property ownership, ways in which they may be changing and ways in which they may be changed. This paper uses the same interplay of the ideas of access and ownership to ask questions about the growing corpus of e-learning material to which I hope the project can make some contribution:

  • Public access to e-learning material or the creation of incentives through intellectual property rights traded in markets?
  • Property in individual authors of material or the institutions which employ them (or does re-thinking ownership through ideas of access give subtler and better possibilities?)
  • Individual authors – or does e-learning open new possibilities of academic communities which are more than URLs?
    Judicious use of the rhetoric of access and ownership can illuminate rather than obscure these important practical and political questions.

NTFS project: access to and property in land

This paper springs from the NTFS project on which I am currently working. The project title is Getting access: access to land and the right to roam. Its principal focus is public rights of access to land. To take a couple of examples from the project bid:

Should I be able to walk where I like on private land in open country? If it disturbs the owner’s grouse? If it erodes publicly treasured landscape? (A right to roam under the Countryside and Rights of Way Act 2000 is being introduced during the currency of the project.)

Should I be able to walk where I like in the town centre of my home town? (Obviously? But where public streets have been redeveloped as privately owned malls, English law currently allows the owner to ban me for any reason or none).

Public rights of access are interesting and important in their own right, and with regard to teaching can certainly provide the basis for a viable short option. But my principal interest in them as teaching vehicles relates to Property Law exemptions. Public rights of access are not a major focus in the traditional private land law Property syllabus. I want to promote their inclusion because I think they give a useful concrete and conceptual basis for students’ critical reflection on property and ownership – a concrete basis in a series of examples (like those above) in which the claims of people other than the owner challenge the exclusivity of the owner’s rights; a conceptual basis because a stress on access is a well established and still very important feature of oppositional and critical theories and histories which seek to limit property, or (more interestingly) to challenge and to redefine what property means. Let me give (without elaborating on them) three well known leading examples of theoretical positions on property to which access is more or less central:

  • Macpherson’s (1978) conceptions of private and common property - Macpherson uses access to stress the partiality of standard conceptions of property which see the idea solely in terms of the right to exclude other people (‘private property’, for example my exclusive possession of moor land I lease) and neglect the right not to be excluded (‘common property’, access, for example your right to roam over that moor land). [Countryside and Rights of Way Act 2000, although the Act does not use the term ‘right to roam’. It is debatable whether the Act does confer common property rights in Macpherson’s sense. Common property rights are individual rights, and the Act lacks the individual remedies which might be seen as necessary characteristics of such rights.] So here access is placed at the centre – not just a qualification on or a limit to private property, but a competing (or complementary) form of property.
  • Reich’s (1964) championing of the (then) ‘new’ property – the right not to be excluded from the ‘largess’ of the welfare and regulatory state. A right to housing (were the Homelessness Act 2002 to give any such thing) would be an example. See also Reich (1991).
  • Gray and Gray’s (1998) conception of ‘property as responsibility’ – in which obligations to other people (including obligations to allow access) are seen not as external constraints on a right of property but as intrinsic features of the right.

The project and this paper: access to and property in e-learning material

Though the substantive focus of the project is on access to land, one of its main educational aims is to champion open access to e-learning material. The project material will form a national Web-based teaching resource, access to which will be unrestricted. My principal targets are staff and students in UK, especially English and Welsh, universities. (It is in this sense that the material aspires to be of use primarily to this consituency that I aspire to produce a ‘national’ teaching resource.) Access by people other than students and staff in higher education is also important to me; a section on some contentious access to land issues in Canterbury and Whitstable is intended to draw local people into contact with my university, making a potential contribution to widening participation as well as engaging students with local politics and the local community.

I am not concerned in this paper with the issue of accessibility in the common and important sense of facilitating access by people using non-standard technologies to browse the Web or who have a visual or other impairment. The kind of access which I want to champion is both more and less than a matter of providing a bank of material from which any interested individuals can pick and choose items to download and use in any way they want unfettered by any reservations I might want to impose.

More than this in that I want also to promote active collaboration and dialogue with colleagues and students at other institutions (and with local people) in the design, authoring, improvement and use of the access to land material. (I am also very happy to consider other forms of co-operation – for example organising technical assistance for anyone wanting to set up similar projects in other areas of law, or helping and perhaps hosting glocal issues sections in other part of the country.)

Less than this in that I do want to fetter what people can do with the material. For example, I am not prepared to have my work used without acknowledgement, or for commercial gain in which I have no share, or (in the unlikely event that this is relevant) for military purposes. So open access in the sense I intend has potentially quite intricate social dimensions of inter-institutional and extra-institutional co-operation. And (though I find the gesture of eschewing any assertion of legal rights in relation to the material quite attractive) it has a dimension of the assertion and reservation of legal rights which is potentially much more complicated than a simple blanket assertion (or abandonment) of private property.

In the rest of this paper I want to focus more closely on these ideas of open access to e-learning material which I am trying to put into practice in the project. I will consider the development of e-learning materials, how practicable it is allow open access to e-learning material and how likely it is that open access will be allowed on any significant scale, and whether the property conceptions which I have sketched in relation to access to land are of any use in understanding, or arguing for, access to e-learning material.

The inquiry is necessarily speculative, but my sense is that this is an important time for e-learning issues, when some speculation may be helpful rather than idle; that decisions which may have a critical impact on e-learning are being taken being taken by many universities at the moment but that standard practices are still fluid and still capable of being steered in progressive directions. (I have some involvement in my own university’s current discussions, and, through this, some knowledge of developments at other institutions. I do not want to discuss individual cases.) My intention is to promote discussion rather than lay down principles or to make predictions. I proceed by looking at what seem to me the principal factors likely to affect the development of e-learning and open access to material, before floating some tentative concluding points and questions.

People, property and organisation

Obviously, the most important factors affecting the development of and access to e-learning are likely to be who decides what will happen and the organisational and cultural milieu in which they operate.

Intellectual property in e-learning

Who has intellectual property rights in e-learning material? Intellectual property has not been a significant issue in relation to academics’ traditional activities of research and teaching. With regard to research, there has been no significant issue because universities have not asserted intellectual property rights, although they have been more assertive with regard to patents. They have not asserted copyright in scholarly works (though they are likely to argue or assume that this is because they waive rights which in principle they have, rather than because they have no rights to assert). Most academic writing is not written with a view to spectacular royalties, and does not produce them, and in the absence of an assertion of copyright by the university what royalties that are generated are normally kept by the author. And the most important advantage of academic scholarship to the author is not the capacity directly to exploit it economically through the reified and assignable idea of copyright. It is the non-assignable personal characteristic of authorship – simply having written the work (which the university could never claim). It is this which has brought tenure and promotion and reputation, and which now enters the Research Assessment Exercise (RAE). Such authorship now has direct legal recognition in English law as a central aspect of ‘moral right’. (s77 Copyright, Designs and Patents Act 1988. Such rights have long been central to civilian systems of intellectual property; see Holderness (1998).)

With regard to teaching material, universities are less likely to have a conscious policy of waiving copyright, but as a practical matter copyright is a non-issue. If teaching material is written up in hard copy and published as a textbook or casebook, rights will normally be waived because it is now seen as published scholarship. If it is not published, intellectual property in it is simply not likely to bother anyone. Consider for example the position where an academic who has produced a popular course syllabus gets a new job and changes institutions; the old institution would not be able to stop a similar course being taught at the new, for even if it held copyright in the material distributed to students it would not hold any rights to the underlying ideas and expertise which had generated the old syllabus, and which could easily generate a new and similar one. The academic would be similarly unable to stop a version of her course being taught by someone else at the old institution. Copyright is in the particular form of expression of ideas, and written course material does not normally involve a huge investment of time or money in the particular form of expression. It is cheaply replaced and has no significant sale value.

Potentially, who holds what rights over e-learning material (and distance learning material, whether or not it is electronic – see McCracken (2002)) may be a far more critical issue. Unlike research, there is no clear tradition of universities waiving their rights. Unlike traditional teaching, making the material public in a systematic form does not clearly tip e-learning into ‘scholarship’ and therefore attract the waiver of any rights; there is likely to be a very significant investment in the particular form of expression of the ideas; and there may be a significant sale value. Copyright in e-learning material may be potentially important, but it is not at all clear who holds it. The prima facie position that copyright is held by the author of a work is displaced where the work is produced in the course of employment (s11(2) Copyright, Designs and Patents Act 1988).

On the orthodox view, this will normally mean that where an academic produces e-learning material as a part of her work, copyright will be held by the university as her employer. But at least one influential commentator takes a much more restrictive view of the circumstances in which the course of employment rule will give copyright to a university; Vaver (2000) argues that it applies only where it would be a breach of contract for the employee not to produce the particular work. (See also the AUT position discussed in Weedon (2000).) This argument makes ownership of intellectual property dependent on the particular terms of the contract of employment; if I am employed to work specifically on an e-learning project the material will belong to my employer; if (more typically) I am employed as a teacher and I choose to teach through e-learning, the IP will belong to me; if I am employed as a teacher and my university later adopts a policy that teachers must teach through e-learning then ownership of the IP will presumably depend on the consistency of the policy requirement with my contract – whether it is an ineffective attempt unilaterally to vary the contract or a legitimate exercise of a power to particularise my duties under it. The position is, then, that it is potentially significant who holds copyright in e-learning but we cannot be certain who does.

Policy, interests and property

Whether in practice property in e-learning (whoever holds it) is critical to development of, and open access to, e-learning material depends very much on how academics and institutions perceive their interests and think they can ought to behave. Universities have clearly been waking up to the fact that e-learning may be important in recruitment, retention and quality assurance, and may some time give real opportunities for commercial exploitation – I am told that a statement from Universities UK is imminent. An institution which is setting itself up to make money from distance learning on a big scale, for example, is likely to be strongly opposed to open access. But it is simplistic rather than realistic to assume that all universities will inevitably seek to maximise their control over material, to deny all rights to their employees and to deny access to all but their own staff and students other than for payment. For example, an institution may well have no ambitions to make money from distance learning and feel it would be unfair, unnecessary and impolitic to concede no rights to its employees; or it may want to use open access to e-learning to help meet widening participation targets or forge closer links with local communities or local businesses.

One factor which I think is likely to be critical and is worth looking at a bit more closely is the likely impact of the incentives and disincentives which universities place on academic and related staff. Those (dis)incentives and their relationship to intellectual property in the material may not be straightforward. All sorts of motivations and identities have of course been offered to or thrust upon legal and other academics (see the chapters by Varnava and Burridge and Paliwala in Burridge (2002)) and all sorts of competing pressures are experienced. A lot of early development of e-learning was self motivated; developers were enthusiasts, curious about the pedagogical potential or interested in playing with the technology, or both; development was a more or less engaging eccentricity, tolerated if it did not get too much in the way of research and (real) teaching. Incentivisation becomes more important as e-learning spreads beyond enthusiasts and becomes a large scale, mainstream, activity needing a serious investment of time. I identify three fairly straightforward pragmatic factors:

First, recognition. Academics need to know that time invested in the development of e-learning material will be recognised, preferably not just in the allocation of other duties but in appointment, tenure and promotion decisions. The kind of right which most matters is authorship, the personal characteristic which cannot be claimed by the university and which legally is protected through moral right; the position is closely analogous to the recognition of research discussed earlier.

The uncertainties of copyright do not matter at all here in any direct sense; recognition of authorship in a work is independent of who holds copyright in it. But copyright may be indirectly relevant. An author is likely to want her work disseminated widely. For research, it can normally be assumed that publication is precisely that – a rendering public of work so that there are no significant barriers to access by relevant readers (who will be able to get access via a library or electronic sources even if they do not buy). E-learning material is far more vulnerable to much more restricted dissemination. An institution may very well sell access to just a few other universities or very likely deny all access to non-members. An author may want copyright, or appropriate rights by licence, in order to ensure adequate distribution – the most complete form of which is open access.

Secondly, portability. I raised earlier the position of an academic taking a new job and wanting to teach at her new institution a course similar to one she had taught at the old. I dismissed this as a practical issue for traditional teaching and hard copy materials, but then pointed to the much greater investment in the particular form of expression of ideas which characterises e-learning material. Many academics are likely to be put off from investing time in development of e-learning material which they would no longer be able to use if they moved. (And it is possible that some might see the possibility of offering an e-learning package to a potential employer as a positive incentive to develop it in the first place.)

Here, copyright may matter; an ex-employer who held copyright could prevent use of the material at the new institution (because it would involve copying – s13 Copyright, Designs and Patents Act 1988); an ex-employer who did not hold copyright could not prevent it. But all that the academic (and, I would argue, the ex-employer) requires in this situation is the right to use the material, a right of access. It is possible to have such a right without holding copyright. The standard procedure would be for the university (or the academic) as copyright holder to grant the academic (or the university) an irrevocable non-exclusive licence.

I am inclined in recognition of the author’s creativity to favour copyright residing in the academic and licensing to the university, or joint copyright (deprecated by Weedon (2000, 27)), rather than copyright residing in the university and licensing to the academic. The detailed substance may be very important in defining exactly what each of the protagonists can do in this potentially delicate situation. (There are of course important issues about the detail; for example do both parties have the right to modify and develop the material? Educational and non-commercial uses only? Rights to grant similar licences to anyone else?) But whether each has their rights in the form of copyright or of licence does not matter for the purposes of portability as an incentive.

McCracken’s (2002, p4) evidence from the US suggests a confused picture, but one in which an increasing number of institutions have been prepared to share rights with staff in this sort of way. And UK universities have not normally sought to exclude their staff from the rewards of research (or of patents). Academics may have to push their employers into recognising or granting employees rights over e-learning material but it is in no way fanciful to expect the universities to do so – not least because it is in line with the self interest which any institution which wants to promote e-learning has in motivating its staff.

Thirdly, finance. Funding the development of e-learning can obviously provide an incentive – for example by paying for technical help or replacement teaching during the time spent on development. A further financial incentive to academics would be the prospect of royalties if the resulting materials have commercial value and are charged for, and either the academic holds copyright or a proportion of the revenue (as well as a licence to use) is negotiated with the university if it holds copyright.

Whilst I have no objection to academics making money I hope his will not become the pattern; academic recognition in the sense above should provide sufficient incentive and includes forms of financial incentive. Imposing a moderate charge for the use of material is not wildly antithetical to open access. (Charging is quite common in the related area of open source software, for example versions of Linux are often boxed and sold.) Charging may be necessary or desirable to allow maintenance and further development (as for example in the case of IOLIS licences), and it may be possible to give meaningful open access for free, whilst limiting to users who pay useful additional features (say write access or the ability to define groups on a bulletin board). But charging to boost individual academics’ income runs counter to the kind of co-operation I want to promote and is largely inimical to open access.

It may be nevertheless be necessary or desirable sometimes to charge for the use of e-learning material, but this is quite different from use of royalties to boost individual academics’ income.

In looking at incentives, I have argued that employees should have rights. Most of these incentive issues go to the development of e-learning material, rather than to allowing open access. Desire to achieve wide dissemination may suggest weakly in some circumstances that employees have an incentive to favour open access but this is not necessarily the case. Equally, I pointed earlier to reasons why an institution might favour open access (even where an individual does not). Some of the remaining factors address more directly the access issue.

Complexity and e-learning materials

Traditional teaching stresses the relationship between the student and the individual academic (or at the most a small course team within the institution); a private matter between the acolyte and the subject-initiate who is the sole author of any material. The input of other people, for example the law librarian, is obviously important but (rightly or wrongly) can be seen as supportive of but extrinsic to the enterprise of learning and teaching. Finance is just a matter of standard departmental budgeting.

E-learning tends towards more open scrutiny and more complex relations (and in doing so pulls in the same directions as other pressures such as quality assessment). Preparation of e-learning material will sometimes need to be seen as a team affair, to which the input of educational technologists, information experts and perhaps educationalists is intrinsic; which may bring in staff from more than one institution, or which may be funded by a range of agencies external to the individual university or universities, typically handling HEFCE funds – for example UKCLE and the Institute for Learning and Teaching.

These sorts of arrangements obviously complicate the property and contractual relations which, as I showed earlier, can be complicated enough even where the only protagonists are a single academic and her employer. They certainly suggest the need for a pretty careful specification in advance of the rights of all concerned. I think they also suggest potential to promote open access in the full sense sketched earlier. By definition I am talking about situations in which a degree of co-operative work is going on. It seems to me that funding agencies have the capacity to play the major role in promoting such co-operation and other aspects of open access. Their constituency will normally be higher education (sometimes also further education) as a whole rather than an individual institution, and they tend to place a strong emphasis on dissemination. A lead towards open access in their allocation of funds should be expected from them.

On the other hand it is of course perfectly possible for institutions to co-operate to produce material from which all others will be excluded, or for which all others will be charged. There is the possibility that greater complexity will push e-learning in the direction of creation by commercial consortia (or of domination by distance courses offered by a small number of high-prestige institutions) and high access costs. Development of good quality open access material may be able to inhibit this.

Open access as a movement

The best hope for widespread open access is that people and institutions believe in it rather than are pushed into it by incentives or by complexity. There are already strong movements which push the principle of open access to various kinds of digital material. Often they do so in subtle, pragmatic and thoughtful ways from which e-learning can pick up a lot. They are not just declarations of collectivist, libertarian or anti-capitalist principle, and e-learning may usefully pick up a lot from them.

Perhaps the best established is the open source movement in relation to software. Within this have been generated, for example, the Apache software (which runs the majority of the world’s Web servers) and the Linux operating system (which offers the best hope of breaking the dominance of personal computers by Microsoft Windows). The movement’s GNU licence conditions give the freedom to use and refine source code (and indeed to charge for software) subject to a requirement to make any modifications available on the same terms – see the excellent analysis by O’Sullivan (2002). E-learning can I think take two things in particular from the open source movement. First, the confidence that it is perfectly possible for open access material to achieve serious results on a big scale in competitive conditions, particularly in relation to electronic resources. (See O’Sullivan’s references to Rose’s (1986) critique of Hardin’s (1968) classically baleful over-exploitation critique of common property.) Secondly, the precept of using full and careful licence conditions; O’Sullivan points out indeed that the GNU software licence may itself be used for academic publications.

Perhaps a bit closer to the direct concerns and experiences of most legal academics is the Free Online Scholarship Movement, (now known as the Open Access Movement), of which the Budapest Open Access Initiative is the clearest articulation. (Somewhat similar aspirations are expressed, in less campaigning terms, by the JISC in relation to its vision for the Distributed National Educational Resource (DNER).) This seeks to avoid publishers charging for material for which authors are not being paid – typically refereed journal articles, either by electronic self-publication in open access archives in advance of standard journal submission, or through open access journals. Again, the difference made by the technology has been stressed. In Harnad’s (1994) nice image, the ‘Faustian bargain’ in which authors of hard copy had to allow publishers to charge for access to their work in order to get it published at all is simply not necessary given the ease of free electronic dissemination. The open scholarship movement provides useful material for e-learning and another example of a successful open access programme. Its emphasis on handling only those materials which authors are happy to publish without payment may be reassuring for some scholars.

It is difficult as yet to see any widespread championing of open access specifically in relation to e-learning, although MIT are giving a useful lead with their OpenCourseWare Project and adoption of Creative Commons licensing. I hope and expect that a conscious movement will develop as more people become more focused on e-learning – and this may be all the more likely as an oppositional position particularly if most universities do take a hard line in seeking to exclude employees from intellectual property and to restrict access to material by users.

Teaching styles

There is some scope for teaching style to affect the possibilities of open access to electronic material. E-learning might comprise simply making text available electronically, with or without other media additionally (for example in my department we make all the lectures in many of our modules available as sound files to download from the Web), and inviting students to absorb information. No one is likely to argue that, without more, this is good teaching – although simple electronic availability can be very helpful in some circumstances, and a stress on the pre-availability of material for students to handle in their own time and at their own pace is an element of currently popular ideas of resource-based, student-centred, flexible, learning. E-learning might comprise interaction with the machine (multiple choice questions and the like) – which I think has an important though limited role to play, and which is a central element of the IOLIS software.

Open access to either of these styles of material would entail the university offering to everyone for free all it would offer at a price to a student who signs up to one of its programmes. This seems likely to dissuade institutions (and perhaps individual academics) from allowing open access beyond, perhaps, a few samples as tasters for potential students or examples for conference discussion with colleagues at other institutions.

But most of the interesting current developments in legal e-learning are moving away from these models (see Maharg and Paliwala’s chapter in Burridge (2002)), and in the direction of using the technology as a mechanism of communication between students and between students and teacher, often in a context which blends e-learning and face-to-face encounters (or at least synchronous electronic communication like videoconferencing). The principal examples involve simulating legal negotiation and preparatory legal research.

Some simulations may operate with elaborate and sophisticated virtual learning environments (the most fully developed being Glasgow Graduate School of Law’s fictional town of Ardcalloch). Production of such an environment will require advanced technical expertise and huge investments of time likely to dissuade institutions or individuals from allowing open access. But some simulations may need no very elaborate electronic infrastructure (for example the EDHEC-Warwick fragrance negotiations), and in these cases the style of learning seems to permit (if not necessarily encourage) open access, provided there is recognition of the idea of the simulation as a matter of moral right. The simulation is of little use to a potential student who does not enrol, because she does not get access to the group or to the teacher. Other institutions might choose also to run the simulation, but they have to put their own staff resources into doing so and imitation will be the best form of recognition for the originator (and, indirectly, her institution) provided that the moral right of the originator is acknowledged.

Technology

All aspects of e-learning are inevitably and intimately affected by the technology, however much we try to subordinate it to arguments about learning and teaching. Technological development is always unpredictable and often more or less incomprehensible to those of us who are not IT specialists. But I want to make some brief comments on the well established growth of virtual learning environments (VLEs. The most popular commercial examples are WebCT and Blackboard, while some universities have developed in-house some or all of the features of commercial VLEs) and on (as much as I understand of) some current trends.

For all their virtues, the rise of VLEs and related technologies makes the issue of open access a pressing one, by returning to an earlier position in which restricted access is the default. Pre-Internet access to e-learning material was intrinsically limited. A computer-assisted learning application authored (say) in the old Guide hypertext software ran on a single machine or a local network. Wider access would only be given by conscious choice and could only be limited. In this example, application files and Guide Viewer system files would be copied onto a floppy and the floppy given to the intended user.

The Internet shifted the default; e-learning material on a university website is fully open access unless conscious and sometimes awkward steps are take to restrict it. (Standard intranets offering campus-only access are frustrating for many, especially non-traditional, students. Other mechanisms of log-on control or password protection can be fiddly to set up and/or difficult and offputting for users.) One response to this may be not to develop e-learning material at all, or not to put it on the Web, but the Internet in general has accustomed people to open access as a normal phenomenon.

The VLE gives a standardised and a specifically teaching-related technology within which restricted access again becomes the norm, requiring no effort to produce and no justification. I have tried to stress throughout this paper that what is at stake is not only who gets to read text but the potential for co-operation and interactivity between the staff and students of different institutions. It is of course still possible (and useful) to set up for material in a VLE particular arrangements with another institution, or for academics to disseminate their work through conference demonstrations, non-working copies and so on, but this is to work from a qualitatively different basis from co-operation on open access material, or multiple development of it on the same lines as open source software. And more practically, people are likely to be put off by the extra effort and nitty gritty technical problems which often arise when the attempt is made to open up material behind firewalls to a limited set of extra-mural users. There is a real possibility that increasing and habitual use of VLEs will restrict the potential for co-operation with other institutions and simply knowledge of what is happening in them.

The current trends I want (with some trepidation) to point to can collectively be labelled ‘identification and standardisation’. A number of loosely related XML-based mechanisms have been and are being developed to individuate and sometimes to structure e-learning (and other similar) objects, to mark their unique identity, to describe and record their characteristics, to facilitate their handling, to define rights in them and control access to and operations upon such objects in accordance with those rights. For example, the SCORM model is emerging as a standard (not a unique one) to which different VLEs and authoring tools are likely to gravitate. A plethora of standards and of languages are being built from XML to express digital rights – see for example the IEEE white paper (IEEE 2002).

One objective of identification and standardisation is clearly to express, secure and refine copyright in e-learning material so as to limit access. (And there can be legal protection against attempts to circumvent built-in technological measures to protect digital rights, or to remove digital rights management information – see EU Directive 2001/29/EC articles 6 and 7.) The standard presupposition of digital rights languages seems to embed limited access and private property; the starting point, built into the grammar of the languages, is that there is no access unless it is specifically granted (see EU Directive 2001/29/EC article 14).

But such languages can be used equally to express, secure and refine open access. I have suggested that effective protection of moral rights can be an important underpinning of open access rather than a hindrance to it. Identification and standardisation may facilitate open access in other ways too. Practical open access requires first that material can be found. Use of metadata can help archiving and allow searching of material in databases which would otherwise disappear into the ‘dark Web’ invisible to search engines and their crawlers. SCORM compliance should ensure inter-operability – so for example material can be exchanged between different institutions using different VLEs, and the portability of material when an e-learning author changes institutions will be secured.

Concluding issues

My main purpose has been to articulate a conception of open access to e-learning material in order to clarify my own thinking about it, and to persuade other people that it is worth considering. The conception is one which looks to co-operation and community between and beyond individual academic institutions. This is perhaps optimistic and aspirational but not I think unrealistically so; arguably, it aims only to bring teaching into much the same sort of conversations and relations which are standardly expected in relation to research – and the writing is already clearly on the wall for university teaching as a private matter between students and an individual academic. The research analogy is not necessarily an attractive one. One possible future which I have seen sketched by a leading light in the free online scholarship movement is that it should become the norm, with teaching then judged competitively on take-up measured in the same sort of way as research citations, aided by what I have called identification and standardisation.

I have tried to show some factors which I think make the development of open access to e-learning material a realistic possibility; not to predict it will happen but to suggest it is worth pushing for.

I have floated a number of possible connections to and analogies with open access to e-learning. Those which link it to other movements for open access to digital material I think are clearly valuable. I am much less certain about those which link it to classical theories of property which include a view of property in terms of access – Macpherson, Reich, the Grays. These have been helpful to me personally in turning from land issues which are familiar to me to intellectual property issues which are not. It is certainly possible to model access to electronic material, just as it is possible to model access to land, in terms of common property in Macpherson’s sense, to which access, a right not be excluded, is so central.

Some of us may find it politically attractive to link electronic open access back into a tradition of pre-enclosure use rights to land. Macpherson also reminds us that common property regimes (including those of open access in the sense I have described) can be socially and jurally complicated – but perhaps the experience of the open source movement in using GNU and other licences related by O’Sullivan does so more effectively. Reich and the Grays again help to link open access into older radical traditions, whilst Reich also reminds of the political potential to cast new claims in terms of property (and of the possibility of ultimate failure in doing so.) The Grays concept of responsibility may not pull very hard at authors, but I think it does suggest useful arguments in relation to institutions; they, like landowners, have property in what they have not themselves produced and clearly has the potential to benefit others, and they can be expected to acknowledge obligations to employees and, perhaps, to the wider community. The history of land rights suggests that we do not have to expect rights of access to displace private property as the dominant property form to think that sometimes they usefully oppose and disrupt it (and whatever the current competitive and administrative pressures on universities and academics, our environment is not inherently one of private property).

From here, not more pensees but a detailed analysis of the forms of licensing which can best promote open access and making them available from (and using them on) the nascent project website.

References

Last Modified: 12 July 2010

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