Hi Simon, Thanks for this feedback. At one level, the move towards open licensing of education resources (eg, Creative Commons) for any educational resources (eg, Learning Design, image, article, etc) is a step forward from our current restrictive copyright regimes. Under most copyright law, you have little or no right to use and modify a (complete) work without prior permission from the author - which introduces huge “transaction costs” (ie, the effort required to get this permission) into the practical sharing and improving of educational content.
By comparison, Creative Commons licenses can give users certain rights “up front” to use (and depending on the license, modify) educational content without needing to first ask for permission - and this “up front” permission can foster a far more efficient system for using, adapting and improving educational resources.
In the case of copyright in a Learning Design - my understanding (NB: I am not a lawyer) is that your copyright applies only to your specific instance of the relevant content you entered into your design, not any generic design that uses the same activity structure as your design.
So if I write a sequence for introduction psychology students that helps them reflect on their ideas and misconception of psychology (see http://www.lamscommunity.org/lamscentral/sequence?seq%5_d=10489) then the combined “work” of the activity structure and the specific text used in each tool within this sequence is copyright to me, but not the activity structure on its own (in any case, while this particular sequence is copyright to me, it is then licensed using Creative Commons BY-SA-NC, so you're welcome to use it and modify it for non-commercial purposes without asking me first. If you change it and share it with others, it becomes your copyright, but the “share alike” clause of the license requires you to share it using the same Creative Commons license. If you don't accept this “share alike” requirement, then you lose your original right to modify it in the first place).
The generic activity structures that can be created in a tool like LAMS are so general that I don't believe copyright should be able to exist in these on their own (that is, without any specific content within them). If it ever turned out to be possible that the generic structures alone could be meaningfully copyrighted, I'd make the case that all possible combinations of generic activities are anticipated by the way the LAMS software operates, and hence any possible copyright in them vests in the LAMS Foundation (which owns the LAMS software and makes it freely available as open source software). The LAMS Foundation would assign copyright in all possible generic structures to the public domain (or failing this, the most permissive open content license available, say CC BY).
So my sense is that the land grab for copyright of generic activity structures can't happen, or if it were possible under certain copyright regimes, then there are ways to fight it to keep everything open anyway.
For completeness, a different approach would be to *patent* certain generic activity structures. Patents allow you to restrict not just the particular manifestation of an idea, but any particular example that embodies the patented idea - so if someone succeeded in patenting a “problem based learning” activity structure, then this could potentially be used to restrict any particular content example that relies on this structure.
Again, I am not a lawyer, but I also see this as unlikely to succeed. First, in many countries, patents over software and business methods are not acceptable. In other countries, the highest court of the land is yet to rule to actually say that software patents are definitely legitimate (this includes the US!). In any case, generic activity structures in education (eg, problem based learning) tend to have long histories that predate recent software implementation, so they would not be considered “novel” (a requirement for a valid patent). A related issue is that even if a particular software implementation of an activity structure was somewhat “new”, it may be “obvious” to any skilled practitioner in the field. Patents that are obvious are also not valid, and the US Supreme court has recently ruled that obvious should be interpreted broadly rather than narrowly.
Apart from all of the above, Coppercore and LAMS were the first software systems to implement Learning Design concepts, and so any subsequent work after these systems would be affected by this “prior art” - again, if a concept already exists or is anticipated in an existing system, then it makes later patents invalid. So I think there are strong arguments against any attempt at patenting generic activity structures because of a lack of novelty, their “obviousness”, and the existing prior art.
Having said all this, it is worth noting that the systems for granting and litigating patents have become deeply “awed in certain countries (especially the US), so that despite all of the above, inappropriate patents can and are sometimes used against the public good, even in education. So there is no guarantee that a patent fight could not erupt - only that there are good grounds to believe that such an attempt to take something beneficial away from the common good, and to then give a monopoly right to a commercial endeavour based on restricted use of a previously common good, would fail. But let us hope that none of us ever have to tread this path - it would be a colossal waste of time for those seeking to build a better world through better education.
James
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