Textbook TOCs and Their Possible Impact on Open Textbooks and OER Repositories

I wrote a post on e-Literate yesterday about a complaint filed by 3 major publishers against Boundless Learning. In that post, I asked what pieces of a textbook for a General Education course are truly unique and original. My conclusion was that, while the information itself was clearly public and derivative, authors and publishers might claim ownership of their own personal words or writing style (provided those too are not derivative). 

The portion of the complaint brought by the publishers that was most debatable, perhaps, is the notion that an author or publisher might claim ownership or original authorship of a unique structure associated with the compilation of specific textbook content (i.e., the scope and sequence of the content) in General Education disciplines. This claim carries with it several possible assumptions and potential consequences:

1. The TOCs for General Education textbooks are synonymous with the course curriculum and are the basis of the organization and structure of course syllabi;
2. The structure, the ordering of topics and sub-topics within TOCs of General Education textbooks are unique and non-derivative;
3. The scope and depth of the content covered by the TOCs of General Education textbooks are original and unique in some way;
4. The specific topics, sub-topics, and sub-sub-topics of a General Education textbook -- the classification index it represents -- are unique.

As I shared in my post yesterday, the very process that is employed when authoring or creating a General Education textbook pretty much negate assumptions 1-3 above. Also, while General Education textbooks may have become a more integrated component of course planning over the past 40 years, they remain ancillary to instruction and fairly interchangeable (i.e., General Education textbook adoptions change with frequency in institutions precisely because the products are so similar and it is fairly easy to do so).

I am not trying to state legal fact here -- courts decide what may be copyrighted and those decisions may not align with what I believe is obvious or basic common sense. Rather I am simply offering a practical opinion based on my experience as an educator, writer, and publisher.

The last item on the list, however, is of much broader import. This item -- the claim to ownership of the information classification system associated with General Education courses -- could have a significant impact on OERs (and other free learning content), and educational technology. If we were to stipulate, for example, that a single General Education textbook author or publisher actually originated and/or owned the classification systems we use to organize and distribute content, it could be a significant threat to many of the open textbook and educational technology initiatives currently available or in the works. (Note, I am speaking of potential risk and not suggesting that any commercial publisher has made this overt broad claim or would move litigiously against OERs, open textbooks, and educational technology companies using those resources).

In the remainder of this post, I want to briefly explore such a potential claim/consequence. I will do this in three parts: 1) what such a claim actually might entail with regards to textbook TOCs; 2) what copyright precedents might exist for a claim about ownership of a classification system like a TOC; 3) how authors and educational technologists might move forward without concern that, down the road, they could be in violation of such a copyright claim.

Saying that the classification system represented by a TOC is unique involves four important sub-claims or implications:

1. A structured TOC, with its hierarchical and detailed ordering of the contents associated with a textbook, actually represents a formal classification system (I would argue that it does);
2. This particular classification system -- the specific topics, sub-topics, and sub-sub-topics of a TOC -- refers to a pre-purposed collection of content. In other words, it is a classification system designed and intended for a specific body of content (the actual content of a specific textbook) and not as a classification system for all content per se.
3. The classification system is designed to capture a specific ordering of content associated with a unique textbook. Any claim that the content of a commercial textbook is indeed copyrightable and can be marketed as distinct from other commercial textbooks covering the same course implies that the associated organizational structure of that content would also be unique but only in the sense that it describes the unique content of the textbook in question.
4. The classification system in question (a TOC), is particularly concerned about the unique names, terms or wording associated with the topics, sub-topics, and sub-sub-topics presented in a specific textbook.

Even assuming that a TOC represents a formal classification system that can be used for organizing learning content, we can see that TOCs are not designed as broad classification systems -- they are created specifically to categorize the content specific to a given textbook, and they are unique, actually, only in wording or phraseology and ordering of the content of a specific textbook.

While the TOC of a specific General Education textbook may not be designed for broad use or to be applied to content outside of the textbook itself, that does not necessarily mean that it cannot be copyrighted as a classification structure of some kind or that there is no potential impact within the broader learning content industry.

By way of their hierarchical presentation of a specific course vocabulary, TOCs are essentially taxonomies. And there is certainly legal precedent related to taxonomies as classification and indexing lists.

 A taxonomy is an orderly classification of a subject according to its relationships. The Seventh Circuit specifically addressed the copyrightability of a taxonomy; the ADA published a taxonomy of dental procedures and subsequently Delta Dental Association published a derivative work of the ADA’s taxonomy that included most of the numbers and short descriptions of the ADA’s taxonomy. Delta Dental did not dispute that a substantial amount of its taxonomy was copied from ADA’s taxonomy. The issue before the court was whether a taxonomy is copyrightable subject matter. 

Delta challenged copyrightability on originality and systems arguments. The threshold of originality for a literary work is very low, and that is overcome by the numbering system employed and descriptions given. The more substantive challenge involves the argument that taxonomies are systems. The court held that a taxonomy is not a system. A taxonomy may be used as part of a system (e.g., a system of recording dental procedures in a dental office), but this does not preclude protection for the taxonomy. The ADA cannot preclude a dentist from using its taxonomy to record dental procedures as to do so would provide protection for a system, but the ADA can prevent a party from copying the taxonomy. Delta did not use the taxonomy as part of a “system”; it copied the taxonomy and made a derivative work of the taxonomy.

This case shows that the contents of a taxonomy, wording, descriptions, and any numbering system associated with the hierarchy of the structure, are indeed copyrightable.  This does not necessarily mean that any TOC can be copyrighted, by the way, but simply that to the extent a TOC represents a unique taxonomy used for classifying and organizing content, it can be protected by copyright.

So far, then, we have seen that TOCs as hierarchical classification structures (taxonomies) could likely be copyrighted but that the classification structures they represent are focused on unique sets of content (specific textbooks) as opposed to being designed to classify all content related to a particular domain or course area. Furthermore, we know that, at least according to the decision referenced above, a taxonomy structure that is protected may not be copied for the creation of a derivative product but may be used within working systems without violating copyright.

What does all of this mean for open textbooks, OER classification systems, and other educational technology ventures that use or reference commercial textbook TOCs in some way? Again, I am not an attorney and certainly not a copyright attorney, and I am not suggesting that my conclusions below should in any way be construed as recommendations for specific business decisions. With that caveat, however, I do think we can draw some useful conclusions.

•  Textbook TOCs make bad classification systems for the storage, search, and discovery of General Education learning content. Textbook TOCs deliberately use editorialized topic headings and terms that can be deemed as original or unique to the textbook. This practice runs counter to what we want to accomplish when creating broad and usable classification structures that everyone can use, regardless of their textbook. So, you may consult TOCs while creating a useful classification structure but you would never want to use a single TOC for your structure.
• Plagiarism is bad and unethical. We teach this in our classes and we should practice it in our businesses. Whether or not a TOC for a textbook is completely original and unique, it represents the hard work of others and should not be copied, either loosely, closely, or exactly. That does not mean, however, that there will not be similarity (fairly close similarities) between TOCs of different textbooks or formal classification structures. They are all designed to represent what is taught in the same courses across the U.S. higher education system. There are accreditation bodies, professional organizations, and educational groups that mediate what content should be included in such courses and there is a broad compatibility among them from institution to institution.
• If you are creating an open textbook, do your very best to create a normalized vocabulary that is generic and promotes ease of re-use. In other words, do the non-commercial textbook thing and create an organizational structure that helps unite the community as opposed to creating differentiation for the sake of marketing. Open textbooks need to be organized and created for use at granular content levels, with a focus on the key learning concepts as opposed to the overall collection. Their organizational structure should reflect this emphasis.
• If you are building a repository or a discovery platform for OERs and other learning content, you can use TOCs as part of your overall semantic use considerations and information model construction. In other words, this content can be used within your formal classification system but you should not display it publicly or promote such TOCs as a feature of your product or as your actual classification system. To do so would put you in jeopardy of infringing on an author's/publisher's copyright of a TOC.