Textbook Copyright Protection In The Era Of Open Education Content

Over the past decade, pundits have predicted that new companies harnessing the internet and related electronic devices would bring about the end of the record industry, print newspapers, and brick-and-mortar bookstores. Whether those predictions are borne out remains an open question, but Boundless Learning, a Boston-based start-up that has raised roughly $10 million in initial capital, has declared war on the college textbook industry. Textbook publishers are not taking the threat lightly. Last month, Pearson Education, Inc., Cengage Learning, Inc., and Bedford, Freeman & Worth Publishing Group (collectively, the "Publishers"), three of the largest publishers of academic textbooks, sued Boundless for copyright infringement in the United States District Court for the Southern District of New York.

Boundless represents the latest trend in the growing electronic textbook market, which Apple, Amazon, and others have flirted with for several years. For instance, Apple recently introduced its iBooks2 application, promising to provide interactive electronic textbooks for less than $15. What makes Boundless different is that, like the infamous Napster, its offerings are free. Unlike Napster, however, Boundless disputes that its electronic versions of popular college textbooks transgress copyright laws in any respect. Whether Boundless is right could have a seismic impact on the textbook industry.

From its inception, copyright protection's purpose has been limited to encouraging creative endeavors by authors. It expressly excludes "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied."1 Of course, the substantive material in a college textbook consists largely of these elements.

The thrust of the Publishers' lawsuit is that Boundless violated the Copyright Act by creating and distributing "replacement" copies of their textbooks that mirror not only the substance, but the organization, content selection, and layout of the texts. Specifically, the Publishers claim that Boundless "created" replacement textbooks for three popular college textbooks: Biology, 9th Edition by Neil Campbell; Principles of Economics, 6th Edition by N. Gregory Mankiw; and Psychology 9th Edition by David Myers. Thus, a key issue in this litigation is whether the way in which the authors selected, organized, and presented facts is sufficiently creative and unique to prevent Boundless from distributing free versions that merely paraphrase the material in these textbooks.

The Open Education Content Movement

The Boundless case is the latest extension of the Open Educational Resources ("OER") movement, a close cousin of the open source software movement. The OER movement capitalizes on technological advancements to share and distribute educational materials and to change the traditional interactions between and among authors, researchers, teachers, and students. This educational content is considered "open" because it is intentionally injected into the public domain without intellectual property restrictions, allowing students, teachers, and anyone else to freely exploit these resources.

The OER movement began just over a decade ago, around the time Napster was becoming popular, when several educational institutions turned to the internet to distribute content they were willing to share. A major driving force in the movement at the university level was Massachusetts Institute of Technology's decision in 2001 to support the MIT OpenCourseWare, which has made course materials for almost 2,000 classes available on the internet at no cost.

MIT recently affirmed its commitment to the OER movement with its announcement, on May 2, 2012, of a $60 million joint venture with Harvard University to create edX, a nonprofit entity that will offer free, online, college-level courses. And Apple offers iTunes U, which according to Apple is the "world's largest online catalog of free education content" and contains "more than 500,000 free lectures, videos, books and other resources on thousands of subjects."

Not surprisingly, electronic "textbooks" created from OER have been a particular area of growth...