The House Appropriations Committee has just released the draft of the bill that would fund the Departments of Labor, Education and Health and Human Services for the 2012 fiscal year. There's a lot to wade through, but tucked into a paragraph on page 37 is wording that appears to prevent the Department of Labor from supporting any further funding in open educational resources (OER).
"SEC. 124. None of the funds made available by this Act for the Department of Labor may be used to develop new courses, modules, learning materials, or projects in carrying out education or career job training grant programs unless the Secretary of Labor certifies, after a comprehensive market-based analysis, that such courses, modules, learning materials, or projects are not otherwise available for purchase or licensing in the marketplace or under development for students who require them to participate in such education or career job training grant programs."
The key words here are "under development" and "available for purchase or licensing in the marketplace." In the case of the former, the legislation as written could have commercial publishers blocking the funding of OER alternatives as long as they claim that they have something "under development." Furthermore, in the case of "purchase or licensing," the Department of Labor may no longer be able to support educational resources that are available for free and are openly licensed -- the definition, of course, of OER.
The Department of Labor has supported OER efforts in the past. Earlier this year, it, along with the Department of Education announced a new $2 billion fund to help create OER materials specifically aimed at the community college level.
In the case of that particular grant program (PDF), the materials created had to be licensed as CC-BY. That license gives people the right to share and remix the content, as long as attribution to the author remains, but it does not preclude making commercial use of the work (although different Creative Commons licenses can stipulate that).
As such, it's unclear then if the new Department of Labor rules are the result of a misunderstanding about how the CC-BY license would work or if it's part of a lobbying effort on the part of commercial publishers who want to stop the government's support of free and open educational content.
The bill is headed to subcommittee next before it proceeds to committee and to the House for voting. The subcommittee members include: Denny Rehberg (R-Montana), Jerry Lewis (R-California), Rodney Alexander (R-Louisiana), Jack Kingston (R-Georgia), Kay Granger (R-Texas), Michael Simpson (R-Idaho), Jeff Flake (R-Arizona), Cynthia Lummis (R-Wyoming), Rosa DeLauro (D-Connecticut), Nita Lowey (D-New York), Jesse Jackson Jr (D-Illinois), Lucille Roybal-Allard (D-California), and Barbara Lee (D-California).