Another US federal OA mandate
SPARC Open Access Newsletter, issue #154
February 2, 2011
by Peter Suber
Less than two weeks ago, the US Department of Labor announced a new OA mandate.  It's not an OA mandate for peer-reviewed research articles, but for open educational resources (OER). 

The OA mandate is built into the new Trade Adjustment Assistance Community College and Career Training (TAACCCT) program, a new funding initiative administered by the Department of Labor in consultation with the Department of Education.  The money is considerable:  $2 billion over the next four years, with plans to spend $500 million in 2011. 

The goal is to build OER that will help US community college students graduate with marketable skills.  But since these will be *open* educational resources, they could help English-speaking, college-level students everywhere.  Because they will be released under CC-BY licenses, they may be translated and adapted ad lib, without payments or permission, and should eventually help students of many other kinds as well.

The announcement from the Department of Labor, January 20, 2011
http://www.dol.gov/opa/media/press/eta/eta20101436.htm
The solicitation of grant applications
http://www.doleta.gov/grants/pdf/SGA-DFA-PY-10-03.pdf
The White House blog post on the initiative, January 20, 2011
http://www.whitehouse.gov/blog/2011/01/20/new-job-training-and-education-grants-program-launched

I want to make five quick points about TAACCCT.

1.  When the NIH policy was made mandatory by Congressional action in late 2007 (to take effect in 2008), after several years of bruising struggle, many of us wondered whether the Congressional action was even necessary.  Some of us thought that the NIH could have adopted the policy on its own.  The policy merely changed the agency agreement with grantees, and agencies do that sort of unilateral tinkering all the time.  Nevertheless, if the NIH had acted alone, both the agency and the policy would have faced severe political pushback, and it was prudent to give them the political protection of a Congressional directive signed by the President.  Of course, the agency and policy faced severe political pushback anyway.  That may prove the prudence of the political protection, but it doesn't prove that US federal agencies couldn't adopt OA mandates on their own. 

TAACCCT proves that they can.  This mandate was not directed by Congress, even though two bills that died without votes in the last session would have mandated federally-funded OER.  Moreover, this agency-initiated OA mandate came from two cabinet-level departments.  I suspect that all federal agencies already knew that they could adopt OA policies on their own.  But now they can be sure of it, and so can the American public.  If anyone expresses doubt, we can all cite the precedent set by two cabinet-level departments. 

This doesn't merely clarify a bureaucratic matter of permission and procedure.  It's a green light for agencies to adopt OA policies on their own.  Hence, it opens up a third front in US federal OA policy.  In the legislature, we had bipartisan support for FRPAA in two previous Congresses.  We still have the bipartisan support, and time will tell what new form it takes.  In the executive branch, we have the White House public consultation on expanding the NIH policy across the federal government.  Now we have independent action from agencies.

BTW, there are a *lot* of US federal agencies.
http://en.wikipedia.org/wiki/List_of_United_States_federal_agencies

More on the two bills that would have mandated federally-funded OER.
--LOW COST (Learning Opportunities With Creation of Open Source Textbooks), introduced in the House, March 12, 2009
http://hdl.loc.gov/loc.uscongress/legislation.111hr1464
http://www.earlham.edu/~peters/fos/2009/03/bill-in-congress-would-require-agency.html
--Open College Textbook Act, introduced in the Senate, September 24, 2009
http://hdl.loc.gov/loc.uscongress/legislation.111s1714
http://www.earlham.edu/~peters/fos/2009/09/new-us-bill-proposes-oer-mandate.html

More on the OSTP public consultation on generalizing the NIH policy across the federal government.
--The solicitation for public comments, December 9, 2009
http://edocket.access.gpo.gov/2009/E9-29322.htm
--The public comments themselves, released March 8, 2010
http://www.whitehouse.gov/blog/2010/03/08/public-access-policy-update

More on FRPAA (Federal Research Public Access Act)
--FRPAA in the Senate (S. 1373) in the 111th Congress
http://hdl.loc.gov/loc.uscongress/legislation.111s1373
--FRPAA in the House (H.R. 5037) in the 111th Congress
http://hdl.loc.gov/loc.uscongress/legislation.111hr5037
--my articles on FRPAA in the 111th Congress
http://dash.harvard.edu/bitstream/handle/1/4314481/suber_news145.htm#frpaa
http://dash.harvard.edu/bitstream/handle/1/3716774/suber_news136.html#frpaa

2.  This is not the first agency-level OA mandate in the US adopted without a Congressional directive.  Two small agencies got here first:  the Institute of Education Sciences (IES) within the Department of Education, and the Agricutural Research Service (ARS) within the Department of Agriculture.  However, TAACCCT is the first agency-level OA mandate from large agencies, the first from cabinet-level departments, and the first co-sponsored by two at once.  The Departments of Labor and Department of Education have the size and stature to give their own kind of political cover to other agencies wishing to adopt OA policies. 

More on the OA mandate from the IES
http://www.earlham.edu/~peters/fos/2009/06/does-us-dept-of-education-have-oa.html

More on the OA mandate from the ARS
http://www.afm.ars.usda.gov/ppweb/PDF/152-1-ARS.pdf
https://arl.org/Lists/SPARC-OAForum/Message/5656.html

(Here I'm not even counting the agency-level *open-data* mandates, both for research data and government data.) 

3.  This is the first *libre* OA mandate from the US federal government.  It doesn't merely require an open licence on the new OER.  It requires the least restrictive open license of all, the Creative Commons Attribution (CC-BY) license.  Of course the immediate benefit is that these OER will be maximally reusable for adaptation, translation, mashups, and purposes no one has yet imagined.  One longer-term benefit may be even more significant:  the US federal government has broken the ice and mandated libre OA. 

The NIH policy only mandated gratis OA.  You could say this was despite the political cover provided by Congress or because of the compromises imposed by Congress.  Or you could argue (as I often have) that gratis OA is often attainable in circumstances when libre OA is not, and that in those circumstances we shouldn't delay gratis OA while waiting or working for libre OA.  But no matter how you slice it, the circumstances have changed enough to permit this outcome.  Two cabinet-level departments not only saw the opening and took it, but cleared the way for other agencies to mandate libre OA as well. 

More on the gratis/libre distinction.
http://dash.harvard.edu/bitstream/handle/1/3716779/suber_news124.html#gratis-libre

4.  According the White House blog, the initiative was "developed and designed in consultation with the White House Office of Science and Technology Policy" (OSTP). 
http://www.whitehouse.gov/blog/2011/01/20/new-job-training-and-education-grants-program-launched

This matters for two reasons.  First, under the new America COMPETES Reauthorization Act, the Director of the OSTP will name the members of the new Interagency Public Access Committee.  TAACCCT is not the first evidence that OSTP supports OA, but it's the latest and strongest evidence.  This doesn't mean that OSTP will name a pro-OA committee, but it does tend to answer worries that the publishing lobbying might lead it to name an anti-OA committee.  (The committee members have not yet been named.)

Second, OSTP is developing the White House policy response to last year's public consultation on a plan to generalize the NIH policy across the federal government.  TAACCCT shows that the OSTP is willing to support OA mandates, even libre OA mandates, and is ready to help agencies develop and implement policies even without a specific Congressional directive.  TAACCCT improves the prognosis for the incipient White House OA policy response.

More on the America COMPETES Reauthorization Act of 2010 (passed by Congress in December 2010, signed by President Obama in January 2011, and now Public Law 111-358)
http://hdl.loc.gov/loc.uscongress/legislation.111hr5116

For more on the OSTP public consultation on a cross-agency federal OA mandate, see #1 above.

For earlier evidence that OSTP is OA-friendly, see its May 2008 guidelines on research data ("Research data produced by scientists working within [15 named] Federal agencies should, to the maximum extent possible and consistent with existing Federal law, regulations, and Presidential directives and orders, be made publicly available....")
http://www.arl.org/bm~doc/ostp-scientific-research-28may08.pdf
http://www.earlham.edu/~peters/fos/2008/06/white-house-calls-for-open-data-from-15.html

5.  There are couple of reasons to curb enthusiasm.

Rob Abel argues that TAACCCT is flawed for requiring the new OER to be in the SCORM (Sharable Content Object Reference Model) format.  Others say that the TAACCCT may allow more format flexibility, and there's now a lively debate on the size and seriousness of the SCORM problem.  I have no opinion on SCORM or on the flexibility allowed by TAACCCT.  I just want to point out the controversy for those who want to follow it. 
http://www.imsglobal.org/community/forum/messageview.cfm?catid=58&threadid=592
http://chronicle.com/blogs/wiredcampus/technology-leaders-balk-at-technical-guideline-in-federal-grant-program/29262

Sara Gast at the Department of Education gave a different reason to lower some of the very high expectations.  She said this in an interview with the Chronicle of Higher Education:
http://chronicle.com/blogs/wiredcampus/2-billion-federal-program-could-be-windfall-for-open-online-learning/29167

[A]t this point, as the solicitation phase is just beginning, we don't know how much of the $2B (or even $500-million in the first year) will be spent on open educational resources....All of the intellectual property that is created as a result of the grants has to be shared as OERs, and it would be accurate to say that the money is available to fund open educational resources, but there is no guarantee all those funds —or even any of those funds— will be spent for that purpose. The applicants have to make their case that what they propose will help students finish college more reliably with market-ready skills, degrees and certificates. We think OERs will be an important part of that. But how much? We can't say yet.

* Here are some major comments on TAACCCT, apart from those already cited.  (Thanks to Open Education News for many that I wouldn't have seen otherwise.)

Beth Noveck, Open Grantmaking in Practice, Not Just In Principle, Cairns Blog, January 20, 2011.
http://cairns.typepad.com/blog/2011/01/open-grantmaking-in-practice-not-just-in-principle-1.html

Timothy Vollmer, New federal education fund makes available $2 billion to create OER resources in community colleges, Creative Commons blog, January 20, 2011.
http://creativecommons.org/weblog/entry/26100

Nancy Scola, Obama Puts Dollars Behind Open-Sourcing Education, TechPresident, January 21, 2011.
http://techpresident.com/blog-entry/obama-puts-dollars-behind-open-sourcing-education

Dave Cormier, $2billion for OERs could end the textbook industry as we know it..., Dave's Educational Blog, January 21, 2011.
http://davecormier.com/edblog/2011/01/21/2billion-for-oers-kills-the-textbook-industry/

Geoff Cain, OER, Open Textbooks, and Innovation, Brainstorm in Progress, January 22, 2011.
http://cain.blogspot.com/2011/01/oer-open-textbooks-and-innovation.html

Lisa Cheney-Steen, $2B in Federal Funds for OER objects, Second Star to the Right, January 22, 2011.
http://secondstar2010.blogspot.com/2011/01/2b-in-federal-funds-for-oer-objects.html

Anon., Big $2 Billion Vision for OER, Yet Short-Sighted, Kairosnews, January 22, 2011.
http://kairosnews.org/big-2-billion-vision-for-oer-yet-shortsi

Anon., How to Fund Open Educational Resources: Department of Education or Kickstarter?  ECTimes, January 24, 2011.
http://ectimes.com/?p=73732

Michael Feldstein, OER and Standards, e-Literate, January 24, 2011.
http://mfeldstein.com/oer-and-standards/

Tim Martin, Obama’s award and misplaced vitriol, Rustici Software, January 25, 2011.
http://scorm.com/blog/2011/01/obamas-award-and-misplaced-vitriol/

Charles Severance, OER Rant 2.0 (Angry teacher and student), Dr. Chuck's Blog, January 25, 2011.
http://www.dr-chuck.com/csev-blog/2011/01/oer-rant-2-0-angry-teacher-and-student/

Greg DeKoenigsberg, Obama bets big on open ed -- with one little catch, OpenSource.com, January 26, 2011.
http://opensource.com/education/11/1/obama-bets-big-oer-one-little-catch


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