A Basic Guide to Open Educational Resources/Appendix 1

by Neil Butcher

Appendix One:
Overview of Open Licences^[1]

 

Introduction

When considering open licences, it is useful to remember that these are legal tools that make use of existing copyright laws. In particular the exclusive right copyright law that allows a copyright holder to license material with the licence of their choice (Hofman & West, 2008). Liang (2004) notes that:

While phrases such as 'free software' and 'copyleft' conjure up an image of alternatives to copyright, it is relevant to note that it is not a model that abandons copyright. In fact quite the opposite, it relies on copyright law, but uses it creatively to articulate a positive, rather than a negative rights discourse (Liang, 2004, p. 24).

Open licences for content developed out of the success of the licensing approach being used for open source software. One of the earliest open licences for nonsoftware material was published in 1998 by David Wiley. This licence is no longer used, since newer alternatives are now more appropriate and adaptable to different conditions. In 2000, the Free Software Foundation released its first version of an open licence for non-software materials. Essentially this licence was to allow open-source software developers to produce open manuals and support materials, free of standard copyright restrictions. This licence is known as the GNU FDL (Free Documentation Licence). Although it was used by the popular site Wikipedia until recently (having been replaced by the Creative commons licence), this licence is not widely used within the OER movement partly because it is technically confusing and cumbersome in terms of procedural requirements (Liang, 2004). In some cases, authors also create their own copyright conditions, although this is noted to be legally challenging in many instances and so tends not to be recommended for OER materials (Hofman & West, 2008). Instead the focus has turned to the Creative Commons (CC) set of licence options. Since CC licences are most commonly used, they are described in greater detail in this paper.

A range of other open licences exist such as licences specifically for music and art. Given the focus of this paper on OER this review has not presented details of the full range of open licences. For a comparative analysis of a wide range of open licences please see Liang (2004). === Creative Commons Licences (www.creativecommons.org) === The most developed alternative licensing approach is that developed by Larry Lessig of Stanford University in 2001, called Creative Commons (CC). The CC approach provides user-friendly open licences for digital materials and so avoids the automatically applied copyright restrictions. The popularity of CC licences has grown incrementally since its launch in 2002 and by 2006 it was estimated that 45 million web pages had been licensed with a CC licence (Smith & Casserly, 2006). Liang (2004, pg. 78) describes the philosophy of Creative Commons as follows:

Inspired by the free software movement, the Creative Commons believes that a large vibrant public domain of information and content is a pre-requisite to sustained creativity, and there is a need to proactively enrich this public domain by creating a positive rights discourse. It does this by creating a set of licenses to enable open content and collaboration, as well as acting as a database of open content. Creative Commons also serves to educate the public about issues of copyright, freedom of speech and expression and the public domain.

The CC licences take account of different copyright laws in different countries or jurisdictions and also allow for different language versions. To make the licensing process as simple as possible for users the Creative Commons site makes use of a licence generator that suggests the most appropriate licence based on a user's response to specific questions regarding how their work can be used. In order to facilitate searching for resources licences in a particular way, the CC licence is expressed in three versions:

• Commons deed: this is a plain language version of the licence, with supporting icons (see table below);
• Legal code: the legal fine print that ensure the licence is recognised in a court of law; and
• Digital code: a machine readable translation that allows search engines to identify work by its terms of use (‘About–Creative Commons’; Liang, 2004).

All CC licences include ‘Baseline Rights’: the rights to copy, distribute, display, perform publicly or by digital performance, and to the change the format of the material as a verbatim copy (Hofman & West, 2008, p. 11). In addition, all CC licences assert the author’s right over copyright and the granting of copyright freedoms and require licensees to:

• Obtain permission should they wish to use the resource in a manner that has been restricted;
• Keep the copyright notice intact on all copies of the work;
• Publish the licence with the work or include a link to the licence from any copies of the work;

• Not change the licence terms in anyway;
• Not use technology or other means to restrict other licences' lawful use of the work (Liang, 2004, p. 82).

Licence Conditions

^[2]

Creators choose a set of conditions they wish to apply to their work.

Attribution by	Share Alike sa	Non-Commercial nc	No Derivative Works nd
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.	You allow others to distribute derivative works only under a license identical to the licence that governs your work.	You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for non-commercial purposes only.	You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

The Licences

The following are the key CC licences:

Attribution

cc by

This licence lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licences offered, in terms of what others can do with your works licensed under Attribution.

Attribution Share Alike

cc by-sa

This licence lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This licence is often compared to open source software licences. All new works based on yours will carry the same licence, so any derivatives will also allow commercial use.

Attribution No Derivatives

cc by-nd

This licence allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

Attribution Non-Commercial

cc by-nc

This licence lets others remix, tweak, and build upon your work noncommercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

Attribution Non-Commercial Share Alike

cc by-nc-sa

This licence lets others remix, tweak, and build upon your work noncommercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd licence, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same licence, so any derivatives will also be non-commercial in nature.

Attribution Non-Commercial No Derivatives

cc by-nc-nd

This licence is the most restrictive of our six main licences, allowing redistribution. This licence is often called the “free advertising” licence because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially.

 

CC Licensing Considerations

The aspect of CC licensing that is most controversial is the non-commercial (NC) clause (Commonwealth of Learning, 2007; Hofman & West, 2008; Rutledge, 2008). There are several reasons for this, including at the most basic level, what 'non-commercial' in fact means. Since CC licences are a new phenomenon within copyright law, little previous case history exists to assist in interpreting this clause. The most extreme interpretation of non-commercial is that no money should change hands as part of the process of using of the materials. However, Hofman and West (2008) note that this is not how non-commercial is usually interpreted. A transaction is not commonly seen as commercial when it includes refunding for expenses such as travel, for example. The transaction becomes commercial when making a profit is the purpose of the transaction. Similarly, writing from the CC perspective, Rutledge notes that:

CC considers intent to be the primary test of whether a use is noncommercial. If the intent of a particular use is to generate profit, that use is commercial. Under this reasoning, cost recovery per se is not a commercial use (Rutledge, 2008).

While this approach may seem intuitive, many legal examples could be found demonstrating the complexity of defining 'intent'. The Commonwealth of Learning (COL) Copyright Guidelines specifically address the issue of the NC clause and note that profit and cost recovery, which includes operating costs, should not be confused. This means that an organisation may still charge registration fees, recover materials duplication costs and overhead costs incurred during customisation, duplication and distribution of materials. The COL guidelines continue to note that:

If an institution declares and/or pays a net profit to shareholders, and a part of the net profit emanates from the sale of learning materials marked with the NC clause, a calculation should be done to determine the amount of net profit that has been earned by that section of the materials that has been marked with the NC clause. This is the critical point when the NC and non-NC materials differ. Organisations that provide materials without the NC clause have accepted that the materials they offer may be used to profit any other organisations' stakeholders (in addition to covering all reproduction costs) (Commonwealth of Learning, 2007, p. 2).

In working to better understand how the non-commercial clause is applied in different contexts, Creative Commons is conducting research into this issue (Rutledge, 2008). Rutledge ends her commentary by suggesting that readers should also seriously consider whether the non-commercial clause is really necessary.

Rutledge (2008) notes that some believe that any for-profit businesses should not be able to charge course fees or make use of open content, hence the NC restriction. However, this would imply that a private school may not use NC materials (Hofman & West, 2008), nor potentially a for-profit organisation using materials for non-profit work such as a corporate social investment project. Other arguments against using the NC restriction include that it makes the materials incompatible with materials licensed without this restriction (see for example Bissell & Boyle, 2007; Moller, 2005).

While it is understandable that an author who openly releases their materials would not want others to make a profit from them, this can be achieved in other ways. For example, it could be argued that, when materials can be freely accessible via the internet, charging for the materials themselves becomes irrelevant, and to make a profit the individual or company would need to add sufficient additional value beyond what is available for free to make it worthwhile for users to pay. Work released under an attribution-share alike licence requires that any work that is derived from the original work is released under the same licence. Thus, the value added by the for-profit individual/company would itself need to be released freely under an attribution-share alike licence (Moller, 2005).

 

Appendix References

Bissell, A., & Boyle, J. (2007). Towards a Global Learning Commons: ccLearn. Educational Technology, 4(6), 5-9.

Commonwealth of Learning. (2007, May). Copyright Guideline. Commonwealth of Learning.

Hofman, J., & West, P (2008). Chapter 6: Open Licences. In Copyright for authors, educators and librarians. Retrieved May 4, 2008, from www.col.org/resources/knowServices/copyright/Pages/openLicense.aspx.

Liang, L. (2004). Guide to Open Content Licenses. Piet Zwart Institute, Willem dr Kooning Academy Hogeschool Rotterdam. Moller, E. (2005). Creative Commons -NC Licenses Considered Harmful. Retrieved June 26, 2008, from www.kuro5hin.org/story/2005/9/11/16331/0655.

Rutledge, V. (2008). Fair Comment: Towards a Better Understanding of NC Licenses. Connections, February. Retrieved May 15, 2008, from www.col.org/news/Connections/2008feb/Pages/fairComment.aspx.

Smith, M. S., & Casserly, C. (2006). The Promise of Open Educational Resources. Change, Fall. Retrieved June 24, 2008, from http://learn.creativecommons.org/wp-content/uploads/2008/03/changearticle.pdf.

1. This Appendix is sourced from Wilson, M. 2009. The Potential of Open Educational Resources. Johannesburg. SAIDE.
2. The following two sections are copied directly from the Creative Commons website – see http://creativecommons.org/about/licenses.