Oct 15, 2007

OpenED Week 7: Copyright issues (cont'd)

This week continues the interesting topic of copyright, copyleft, and the public domain. The following resources have been digested this week;

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.

  • Letting the definition of fair use evolve and expand over time to overcome license incompatibility is better than to design new licenses and set new rules.

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...

  • Moral values are stronger indicators for the reuse and remixability of artifacts than rules and restrictions.

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.

  • Share-Alike and Non-Commercial are complementary, not the same.

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.

  • Not offering the Non-Commercial clause will create more copyrighted material.
  • The future of open learning materials resides in the whole copyright spectrum: copyleft is good for education.
To explain this in more detail, consider the value for the creator if he (or she) can commercialize his artifact, whilst putting it openly on the Internet. I have explained that not allowing him to forbid commercial use by others means that he might copyright his stuff. By acknowledging potential future or current commercial value for the creator you draw individuals and institutions into a more open, or less restricted, domain. In fact, more reuse and remix possibilities are achieved because of Creative Commons and copyleft. Möller states that
"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?

  • If you do not specifically disallow commercial use by including the Non-Commercial clause in your CC license, it is possible that you will loose some opportunities for making money out of your CC licensed content, whether educational or not.

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.

  • Restricting reuse on an artifact involves the risk of replacement by a more openly licensed alternative.

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.


  1. "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."

    An interesting scenario Thieme, which opened my mind a little about the difference between share-alike and non-commercial. But would this scenario every play out in the real world? First off, if you are selling your own photo books on your website, you probably would not use the creative commons license at all whether share-alike or non-commercial. Also, if you were not selling your own photos and someone else decided to produce them in an album and sell them, attributing them to you and telling where the original photos can be found, would this not help more people know about your own abilities to take good photos, increasing the benefit to you in a way that you had not thought about?

  2. There are circumstances not to be imagined in advance, or unkown uses of your artifacts that will increase the value of your persona more than in the case where you do not give this opportunity for reuse. You are right in this respect. But I have a strong feeling, and I suppose better examples can be given than the one I did, that there are also circumstances possible where you could prohibit commercial use (or specific commercial use) because it otherwise would threaten your business model. At the same time, you want some exposure, which is possible with these CC licenses. Although I think that people or institutions are too reluctant to make use of just attribution, and are too short-sighted to imagine that commercial use of the resources may even enhance their business they make, and improve the position they take in a network, this characteristic should not be underestimated. By denying them the possibility of disallowing NC, more people will copyright their stuff, rather than offering it to be used NC. What would you prefer?