2005 – 2012: The OpenCourseWarsThe initial beauty of open education quite rapidly turns grey with problems of the NC license again, with public opinion turning against OCW. Problems with defining Non-Commercial quickly becomes not only a theoretical problem, but a real problem indeed:
The publishers, clearly not very happy with the whole open education movement, follow with a brilliant strategy attacking the NC clause, and win in court: the NC clause is struck down, and all the content that used to be licensed only for non-commercial use, suddenly became available for commercial use. After this apparent success by the publishers, they could now use and commercially distribute the OCW content, which they did. Still, they would be obliged to mention the Creative Commons license, and share the (now commercial) content under the same open license (Share-Alike). Surprisingly, they even ignored this clause, and they did not Share-Alike, because the publishers thought they could attack and bring down the SA clause as well… but to no avail, and to their own demise.
Creative Commons’ own publicly posted discussion draft of Proposed Best Practice Guidelines to Clarify the Meaning of Non-Commercial in the Creative Commons Licenses suggested we approach the meaning of the term noncommercial from the “Nature of the User”. To put it simply, the guidelines asked if the would-be user of the noncommercially-licensed material was an individual or non-profit institution. If so, everything was kosher. If not (if the would-be user was a for-profit company), then they were not permitted to use materials. Seems very straightforward, right? MIT OCW, however, saw things in a very different way. They provided their own definition of Noncommercial, in which they said, “Determination of commercial vs. non-commercial purpose is based on the use, not the user”, and that as long as you’re not trying to make money off of their materials, they were cool with whatever else you did.
So on the one hand you had Creative Commons suggesting that Noncommercial should be determined by the nature of the user, and on the other hand you had MIT OCW defining the very same clause of the very same license in the completely opposite way. I had known about this problem for years, and had email discussions with a number of people at both Creative Commons and MIT hoping to get it fixed. But the problem was extremely thorny politically, and nothing had happened yet.
Putting professors’ lecture notes and things on an university website where students can’t trib test questions and photos and things makes about as much sense as using email. It’s for old people who just don’t get it. I mean, even this eBook reader thing I just got from my sister (who finally graduated, by the way) is pointless. Why would anyone use a device that won’t let you tribTribbing is contributing, as you might expect. On the other hand, the opencoursewares are R/O, or read-only, and is "associated with the kind of “authority” young folks want to rebel against, and embodies an entire generation’s frustration with top-down, un-democratic, un-participatory approaches generally.”
Embracing the trib culture, David says, opens up opportunities for new business models and new ways of learning, something I totally agree with. He created a very interesting future history of open educational resources, going through different transitions, mentioning important problems in licensing, student contribution, and describing great opportunities in learning, competition, and creating value in society. In all, the end depicts a very similar look on the future as I have described earlier (and just posted on this blog), about "How I want to wake up one day…".
Generally speaking, OCWs were difficult-to-sustain R/O endeavors that relied on relatively small numbers of university employees and outside funding. As important as they were, they could never scale and were unsustainable in the ways their original funders wanted them to be. On the other hand, OER projects were generally democratic remix projects that lived and died on the quality of the trib’ing.
QUESTIONS: Can you think of license options that CC is currently missing that would benefit the open education movement? As the CC and GFDL licenses are incompatible, how can OCW content be legally remixed with Wikipedia content? Some people claim that the Creative Commons ShareAlike clause provides most of the protections people want to secure from the Creative Commons NonCommercial clause. What do you think these people mean, are they right, and why? Is copyleft good for the open education movement? Why or why not?
Instead of making a personal (independent) blogpost on copyright issues, I have tried to reflect more on other people’s thinking this week.. I have taken some of the blogposts about this subject that interested me most, and criticized, applauded, or augmented them with my own musings. In remixing my thoughts with others, I hope to answer some of the questions above. First my favorite Creative Commons video:
Fair use… morality & control-ability
I question the implication that remixing Wikipedia content “illegally” would cause problems. I really don’t think that a non-profit organization as Wikimedia will bother much tracking and suing people or institutions who do this, because they don’t care and don’t have money. A rich institution like MIT, who might care about reuse (Open Courseware licenses are usually somewhat restrictive), and has the money and expertise to proceed, will still be very careful I reckon. Their name and fame, for many institutions and individuals a motivations for opening up, is at stake when publicly going to court without clear moral backings. An example is Blackboard, a company that became widely despised after their failed patent suit. Especially if the remixing concerns free educational content or expanding knowledge worldwide, which is in line with the objective of Wikipedia and MIT. In my opinion, Meg asks the right question:
"Why haven’t we focused more on expanding “fair use”? Certainly this would be one way around the above conundrum [i.e. “illegal remixing”]. It would also help solve problems with using copyright materials.”
Rob Barton has a similar view:
"I hope something can be worked out so these licenses can be more compatible with each other, but it seems unlikely to happen quickly. In the mean time, it may just be a liberal application of fair use that allows a mixture among the various incompatible licenses, along with a sprinkle of a gentleman’s agreement not to sue."
And there we are… Like Meg, Rob is not seeking the license incompatibility in more licenses or license agreements, but in an expansion of fair use, or gentleman’s agreement not to sue. But then… who will decide on the fair use..? I think no one in particular, but the process of use and reuse, of remixing and adapting, and of claims and cases, will in the end make out what is to be allowed, and what not, and that this will become clear for the end-user. It might be just better to see how things evolve over time, let people do things wrong (who hasn’t ever downloaded films or mp3’s illegally?) than to commission some kind of document containing the ultimate solution.
In addition to this intelligent perspective of redefining fair use, I question the control-ability. I can imagine it will be pretty difficult to monitor restrictions imposed by these licenses, or by the people making the resources licensed as such. I think that if the use of resources do not really go against one’s own personal moral standards, one would use them anyhow. I don’t think a small private educational publisher in some poor country would consider asking permission to MIT to use and their resources, especially if they improve them, if their financial position would not even allow the smallest contribution. They would just do it. And maybe even doing a good job, because their competitor might offer similar resources for a much higher price…
Creative “intermediary” licenses?
Greg Francom explains his opinion about Creative Commons and educational content, and I was tended to agree with him, but later on, I was somewhat reluctant to agree with him.
"Is any restriction of freedoms bad? I can see the value of having intermediary licenses such as share alike and non-commercial as a kind of gateway to help apprehensive individuals begin to license their original work. These licenses, however, still restrict end users from using resources in certain ways as David Wiley points out. I agree with him that the ideal and future goal is the public domain.”
Greg has a good point: the wide range of licenses will get more people involved, but other aspects, such as the presentation and the entry level are important as well. As Rob says:
"CC works because it is simple, and I believe it is important to keep it that way."Rob Barton is right… keep the barrier low! Make and present it simple! This is key, because otherwise most people will get confused and NOT license their content.. which subsequently becomes copyrighted automatically. The presentation of the of the CC licenses on the Creative Commons website, their great videos and their international marketing, in combination with the wide range of possibilities, is attractive to nearly anyone.
Regarding the restrictions of some Creative Commons licenses, I acknowledge the difficulties mentioned, but I do not agree to the full 100% with Greg, Wayne's and David's concerns. I would want any licensee to consider his/her license very well, and that the choice of license should be an informed one. So when someone chooses a specific license, specify the main problems that relate to this license. Make the NC and SA discussions as clear as the licenses themselves, and inform institutions about it. I also agree that Non-Commercial and Share-Alike clauses sometimes create inefficiency or incompatibility, but I don't think that the ideal and future goal for learning materials is solely in the public domain… I will try to explain that by commenting on another quote by Greg:
"I think that when people say that share-alike will cover all of the needs of the non-commercial clause… […] If a company sells a creative item that is licensed with the share-alike clause and not the non-commercial one, then they are also required to release this item for free to the general public. Selling an item that you must also provide free to the public would not work very well."Mmm… Share-Alike covering all the needs of the Non-Commercial clause… I don’t think so. Imagine me being professional photographer, and I put my pictures online under CC-By-SA. Some other guy could for instance make a beautiful photo book, or agenda, with my pictures, and sell that commercially. He could bring out this book as Share-Alike, meaning that anyone interested in re-publishing or remixing this photo book would have to name the original author (me), and put the same CC license on it as I originally put on it. But he would be able to sell the photo book or agenda or whatever other artifact he made out of my photo material. And there are situations thinkable when I would not agree to this, for example when I sell my own photo books and agendas on my website.
Greg forgets that remixing can happen in different ways and that Sharing Alike is not just copy-paste the original content and provide it online under a Creative Commons license. Remixing is adding content, changing, localizing, translating… etc..: which means adding value. And the remixer might want to be paid for that added value, which is totally acceptable. Or the original creator might not be willing to enable remixers this kind of use… because it interferes with their own business model, or just because it does not feel good… which might be a pity, but totally acceptable as well.
"there may be circumstances where -NC is the only (and therefore best) available option, but that number of circumstances should decrease as the business models around free content evolve."
And he may be right that commercial use might even create more value in the end, but shouldn’t this judgment be made by the creator?
Value of Public Domain
To get back on last week’s discussion about what the value of the public domain is versus CC… I think I want to point out to Greg Francom that he should not forget the opportunity losses when you do not offer other licensing options to individuals, which might be less ideal for the remixer. If they do not license their content, you know it will be copyrighted and all rights reserved. I believe in the diversity of possibilities offered by CC and think that a much larger number of people would open license their materials if all options are offered, isn’t that real openness? I can imagine different situations where the creator indeed would restrict the use somewhat, because otherwise he or she will not be able to profit from it. I agree that the public domain is more useful for the remixer, but what about the value of reputation of the original creator?
Another thing I would like to stress is the relative risk of imposing some rights on an artifact. The owner of the artifact A who reserves some rights, always runs the risk that there is a viable alternative artifact B licensed less strict, and the remixer will prefer B at the cost of the owner of A.
Stephen Downes, as one would expect, has an opinion about the NC (Non-Commercial) clause of Creative Commons:
"And again I iterate that the only people harmed by CC-NC-By are commercial exploiters who seek to cordon off the market for academic content as their own and to systematically loot it for their own benefit and at the expense of people who most need free - and noncommercial - content."
Is there no commercial use possible that will enhance the product? There are arguments in favour of enabling commercial use, because that will stimulate innovation around the content, or provide services to people, making the content or product more attractive. Open source experiences usually provide us with an answer, with a longer history in open licensing. You could argue that commercial exploitation of open source software has caused successful adoption of it. Take Linux, which is the foundation of many large businesses, not only having instrumental value (as the software used within the company), but as the core around which the business is built. I don’t think anyone can deny that commercial use can have a positive effect on the development of open content, whether software or educational resources.
So what exactly is commercial use? I do not specifically know in what way open source software forms the “raison d’être” of organizations like RedHat or SuSe. The source code remains open, I suppose, but the code that is added as well? Translated to educational resources, what about adding pictures, changing the format, and specifying the resource to a specific context, and sell the package to customers that are in need of such a thing? Should this be forbidden? Or don’t you agree that this enhances public value? I suppose commercial applications in many cases form the last step towards true end-user value. The valorization of half-useful open educational resources cannot or may not happen without at least some commercial exploitation. We should not forget that these organizations or people do add some significant value to the resources, whether it is in marketing, aggregation, contextualization, or in any other service value. People or organizations sometimes do not have the time or knowledge to search and aggregate, put into sequence, translate, or fine-tune content that is freely available online. Why should it made impossible if there are people/organizations willing to do that for a certain prize? You see that I here criticize NC, but I am not against it, as I explained earlier.
So.. is Creative Commons perfect?
No. It is not, and I don’t think they claim to be. Although there are a lot of options available to the users of the licenses, some are left out. Some of us discussed the Attribution clause, which is included in every Creative Commons license. I agree that this should not be always included, because one could think of instances where, for example, you don’t care that they attribute your content, but you want your content to be shared alike. I also think that users of CC-NC licenses should be able to define instances of commercial use they want to disallow: "Some Commercial Use Reserved". In that way the creator can protect the commercial value of his creation in more specific terms, meanwhile opening up for other uses, including commercial ones, which might increase value in the long term.
Interesting… the definition of “free” (According to OXFORD English Dictionary)
1 not under the control or in the power of another. 2 permitted to take a specified action. 3 not or no longer confined, obstructed, or fixed. 4 not subject to engagements or obligations. 5 not occupied or in use. 6 (free of/from) not subject to or affected by. 7 available without charge. 8 generous or lavish. 9 frank and unrestrained. not subject to the normal conventions; improvised. (of a translation or interpretation) conveying only the broad sense; not literal.
Attribution (By). You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.
Noncommercial (NC). You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only
No Derivative Works (ND). You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
Share Alike (SA). You allow others to distribute derivative works only under a license identical to the license that governs your work.
Both the public domain and copyrighted domain are needed, because public good requires a mix of public and private. Individuals may find incentives in the possibility of owning their works and being able to make money out of it. Other don’t see the value of protecting it and just give it away to the public. It will depend on the author, but also on the work that is created. Therefore, by asking what would be the net benefit of licensing (ALL) works under the GNU Free Documentation License, would imply that it would be impossible to copyright works. This, in turn, would take away the incentives I just mentioned, causing a negative effect to the public good, because innovation would stifle. Making all works available for reuse and remix under these licenses might not have a positive effect on the net value of the public domain in the longer term.
The same arguments count for the issue of simply placing OER in the public domain and the net benefit for the open educational resources movement. Most educational institutions are (like) private organizations and have to compete with others, and increasingly in an international playing field. Their educational resources therefore, can be considered as something that could be competitive advantageous. By opening up, but not allowing commercial use (which is a difficult clause), the barrier for such an institution becomes lower. Also, because many OER-initiatives depend on the contributions of many individuals, whose reputations are of paramount significance to them, it might be impossible to become sustainable if contributors cannot impose attribution.
As Rufus Pollock explains the reason for copyright; "Thus while making existing knowledge open is optimal (for public value), such a strategy may not be compatible with ensuring its creation in the first place. When the first-best solution of up-front funding is impractical or inefficient we may have to make difficult trade-offs between the costs of restricting access and the benefits of providing creators with greater incentives to produce work."
Evidence shows that the benefit of placing work in the public domain (PD) is that public domain works are more likely to be made available to the public. Pollock also showes that this access to older (PD) works generates value not only for the consumer but also revenue for the firms involved in re-issuing these PD works. Older, coppyrighted works gathering dust in vaults or even rotting away generate no revenue or value for society, and represent a tragedy for any nation’s cultural heritage.
So what about Open Educational Resources?
There are three broad possibilities that apply for educational resources:
We have seen that not doing anything will mean in most countries that the content is copyrighted. This would not be a good option for social welfare. License the work under copyright laws at least makes it clear that it is copyrighted, but will cause it to be used for purposes determined by the author, and permitted by the author. This is not a good option within academic circles either, so that leaves us with a number of open licenses, out of which the creator has to choose a license to his or her likings. Creators need to be informed well, because the different provisions of the Creative Commons licenses can create incompatibility with other works, licensed differently.
Freedom of expression?
Lawrence Lessig explains that the United States (and possibly other nations as well) are currently facing an enormous threats regarding copyright legislation. Strong political movements try to extend copyright terms over longer periods of time, which benefits only the copyright owners. These are, taking into account that copyright already lasts 75, 95, or 120 years (depending on the type of work), family or publishers of the copyrighted content. They have the power to decide if and how material is used. The following premises explain that extending copyright does not create incentives for people that might be responsible for progressing science or creating useful arts, but merely granting a windfall to existing works.
Lessig states that this strong political group, existing of lobbyists from Hollywood and recording industry, aren’t so much defending the rights of creators, they’re defending a certain business model. This group intends to create a “permission culture”, rather than "a world in which there are few barriers to entry, where a blog can create a major political scandal, a $218 digital film can go to the Cannes Film Festival, a podcast can reach tens of thousands of listeners, a mash-up can savagely criticize the government’s respons to a hurricane, where recording and remixing technology better than anything Phil Spector ever had may come bundled free with your laptop." Current copyright legislation creates more and more barriers for creative individuals, who do not possess the time, money, or knowledge to clear their works of copyrighted material. In addition, the clearance itself is an enormous barrier of creating new material to start with.
He also refers to the lack of requirement in current copyright legislation of filing or renewing copyright. This results in a vast domain of works, where "it’s so hard to know what material is available and what material is not available… So there’s this mass of unsorted material out there that could or could not be available for public use creating vast uncertainty. As we said, just at the time that technology is enabling all sorts of new creativity, to build on this material and do stuff with it, the law is getting in the way and locking it up."
In the end, a clear warning is stated by Lawrence Lessig; "We live in a time when our culture is increasingly tone-deaf to legitimate criticisms around the world. If there’s ever a time when we have to open up the opportunity for people to be critical and spread their creative message it’s now. Yet, just at this time, there’s this copyright war that’s shutting down channels of communication in the name of defending property rights. But in defending those property rights what you’re also doing is disabling an extraordinary system of expression that could be doing our democracy an extraordinary bit of good."
Aoki, Boyle, and Jenkins (Bound by Law) confer that although copyright seems to eradicate opportunities for artists, and that copyright might stifle innovation and the progress of science and useful arts, it should not be neglected or violated. It can be a valuable tool for any kind of creator, also when he or she wants to share the work without charge. But they agree with Lessig that the system should not slide out of balance any further. The Creative Commons initiative therefore is very positive, because it provides low barriers for licensing work in any way a person wants. And clear information as well, which is needed to get people and institutions aware of the lost value of overprotecting works. The barriers are extremely low, and it provides, in absence of good copyright legislation, a great counterpart that will make the increasingly complex and abundant online world of information more transparent and useful.
|Widening participation in higher education||Altruistic reasons||Altruistic or community supportive reasons|
|Bridge the gap between non-formal, informal and formal learning||Leverage on taxpayers’ money by allowing free sharing and reuse between institutions||Personal non-monetary gain|
|Promote lifelong learning||“What you give, you receive back improved”||Commercial reasons|
| ||Good public relations and showcase to attract new students||It is not worth the effort to keep the resource closed|
| ||Growing competition – new cost recovery models are needed|| |
| ||Stimulate internal improvement, innovation and reuse|| |
|Technical: Increased broadband availability; increased hard drive capacity and processing speed; new and improved technologies to create, distribute and share content; simpler software for creating, editing and remixing.||Technical: Lack of broadband and other technical innovations|
|Economic: Lower costs for broadband, hardware and software; new economic models built around free content for recovering costs.||Economic: Lack of resources to invest in broadband, hardware and software. Difficulties to cover costs for developing OER or sustaining an OER project in the long run.|
|Social: Increased use of broadband, the desire for interactivity, increased skills and willingness to share, contribute and create online communities.||Social: Absence of technical skills, unwillingness to share or use resources produced by someone else.|
|Legal: New licensing regimes facilitating sharing of free content.||Legal: Prohibition to use copyrighted materials without consent.|
|Low Control & Costs||High Control & Costs|
The OECD report sums up a number of possible revenue models that can be adopted to make a program more sustainable. The revenue or funding model is an important aspect that should be addressed, but there are more. First of all, it should be clear what objectives the institution has with the OER initiative. The following factors are always seen in the context of a project’s goals, since sustainability is described as the ongoing ability to meet the goals of a project.
"In the social production of their life, men enter into definite relations that are indispensable and independent of their will, relations of production which correspond to a definite stage of development of their material productive forces. The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness.
The mode of production of material life conditions the social, political and intellectual life process in general. It is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consciousness.
At a certain stage of their development, the material productive forces of society come in conflict with the existing relations of production, or — what is but a legal expression for the same thing — with the property relations within which they have been at work hitherto. From forms of development of the productive forces these relations turn into their fetters.” (http://marxists.org/)