[Oer-community] On-line education is using a flawed Creative Commons license

[Stephen Downes]

Hiya all,

To follow up on some points made by Rory:

Content (under whatever license) is 'enclosed' when it is contained 
behind a barrier such as proprietary encryption, a digital lock or a 
paywall. Enclosure does not restrict the content itself, but restricts 
access to the content; access is granted (typically under some other 
name) only via some concession, such as payment, or provision of 
personal information.

To my understanding, all of Flat World's content will now be enclosed 
behind a paywall. OERu assessments enclose assessment content. This 
mailing list (OER-community) encloses content behind a subscription 
requirement (I can't even link to discussions in my newsletter; all 
non-subscribers see is a barrier).

Enclosure is an important concept because it leads to 'conversion'. The 
process of conversion is one where what was once a resource that could 
be freely accessed is (for all practical purposes) accessible only 
through a barrier of some sort; in other words, the content is free, but 
has been effectively completely enclosed. This is what happened (for 
example) to many UseNet newsgroups. It almost happened to Wikipedia, and 
would have happened, has Google not intervened.

Having said that, let me be clear how /perspective/ plays a significant 
role in the free / not-free debate:

- from the perspective of someone who /already has the content, /the 
content is 'not free' if there are limitations on the/use/ of that 
content, including the right to sell it

- from the perspective of someone who /does not already have the 
content/, the content is 'not free' if there are barriers preventing the 
person from /accessing/ the content (note that the putative assertion 
that the content 'could be made free somewhere' does not constitute a 
removal of the all-too-practical barrier

It is not to me surprising that the people with wealth - namely those in 
U.S. universities - could view 'free' from the perspective of those who 
have the content. But I speak from the perspective of one who does not 
have access to the content. And my argument, in a nutshell, is that the 
second perspective is just as valid as the first (even though the second 
perspective cannot afford lobbiests).

Content behind barriers - for example, content that is being sold - is 
'not free'. This perspective matters. For 99 percent of the world, it's 
the only perspective that matters.

-- Stephen








On 2012-11-26 6:18 PM, rory wrote:
> Stephen
> See my comments below in response.
> (All disagreements are respectful!)
>
> All the best.
> Rory
> On 12-11-26 1:44 PM, Stephen Downes wrote:
>>
>> Hiya all,
>>
>>
>> Without extending this into a full-blown debate, as I have already 
>> written at length about this elsewhere:
>>
>> - licenses that allow commercial use are /less free/ than those that 
>> do not, because they allow commercial entities to charge fees for 
>> access, to lock them behind digital locks, and to append conditions 
>> that prohibit their reuse
>>
> RORY>> I disagree. One can also lock NC licensed material behind a 
> digital lock. Or  print it out. Then others can't use it. So, NC is no 
> less free than any other open licence. In either case, the only work 
> that is "locked" is the specific instance of the work that has been 
> taken by the user. All other instances are still open. If it is 
> available elsewhere online, then locking it up at any one site is not 
> relevant.
>>
>> - works licensed with a Non-commercial clause are fully and equally 
>> open educational resources, and are in many cases the only OERs 
>> actually accessible to people (because the content allowing 
>> commercial use tends to have costs associated with it)
>>
> RORY>> I disagree. If a work is NC it is NOT open to institutions that 
> charge tuition for their courses. In fact no institutions can use NC 
> material, unless they (and the law) sees their tuition fees as being 
> non-commercial, although some interpret non profit as being NC. This 
> differs from jurisdiction to jurisdiction. To clarify, because I may 
> misunderstand you, could you please supply an example  or examples of 
> a CC work that is locked down and that I cannot access.. A site may be 
> locked down but if the material is freely available elsewhere then the 
> content is NOT locked down.
>>
>> - the supposition that works that cost money can be 'free' is a trick 
>> of language, a fallacy that fools contributors into sharing for 
>> commercial use content they intended to make available to the world 
>> without charge
>>
> RORY>>> I disagree: I can charge for openly licensed material and I 
> can give it for free at the same time. For example, IRRODL is fully 
> freely available and it is also on some databases that charge for the 
> service. So it can cost money and it is free at the same time. Also, 
> AUPress which uses the NC licence allows free downloads AND sells the 
> books in different formats. AUPress didn't trick the authors.
>>
>> - the lobby very loudly making the case for commercial-friendly 
>> licenses and recommending that NC content be shunned consists almost 
>> entirely of commercial publishers and related interests seeking to 
>> make money off (no-longer) 'free' content.
>>
> RORY>>> I disagree. I am non-commercial as is the Commonwealth of 
> Learning, the OER Foundation, the OCWC, the Creative Commons etc. etc. 
> etc. We are loudly making the case for shunning NC licensing. So it is 
> a fallacy to state that this group is made up of "entirely commercial 
> publishers".  We are not their "related interest" either. Nor are we 
> seeking to make money.
>>
>> The problem with this is the Flat World publications or the OERu 
>> assessment scenario - content deposited with the intent that it be 
>> available without cost is converted into a commercial product. It's 
>> not free if you can't access it. Content is different from software, 
>> it can be locked (or 'enclosed') in ways free software cannot, 
>> without violating the license.
>>
> RORY>>> I disagree. What CC material have they locked down that we 
> cannot access. I'll believe it when I see it. Their site may be 
> locked, but the content can be accessed from elsewhere. One example 
> would be a school that downloads CC content to its server which is 
> closed or locked down. You cannot access the content there so it is as 
> equally locked as at the Flat Earth site. The NC license does not 
> prevent this. For example, FlatWorld has books under an NC license and 
> they still "lock it down". They even have some books under NC and SA 
> and still "lock it down".  For profits may be more aggressive in 
> promoting the books, but anyone can take a copy and make it available 
> online for free. The community needs to be more aggressive in doing this.
>
>
>> In sum, this discussion would be better conducted without further 
>> debated about which open license 'is best' and especially with 
>> fervent declarations in favour of commercial-friendly licensing. The 
>> suggestion that the free sharing of non-commercial content is not 
>> 'practical' is not Stallman at his best, and is refuted by the 
>> experiences of millions in the field.
>>
> RORY>> I disagree. This is an important discussion that needs to be 
> open. The NC license is NOT open. It is restricted. No one can legally 
> enclose a CC -BY work. Adding an NC restriction to the content does 
> not make it more open. It makes it less open.
>>
>> -- Stephen
>>
>>
>>
>>
>> On 2012-11-26 3:58 PM, Everton Zanella Alvarenga wrote:
>>> An interesting text by Stallman, which I copy bellow and emphasize 
>>> some points in italic. See also the article on permission culture at 
>>> Wikipedia http://en.wikipedia.org/wiki/Permission_culture
>>>
>>> *On-line education is using a flawed Creative Commons license* 
>>> <http://stallman.org/articles/online-education.html>
>>>
>>> Prominent universities are using a nonfree license for their digital 
>>> educational works. That is bad already, but even worse, the license 
>>> they are using has a serious inherent problem.
>>>
>>> When a work is made for doing a practical job, the users must have 
>>> control over the job, so they need to have control over the work. 
>>> This applies to software, and to educational works too. For the 
>>> users to have this control, they need certain freedoms (see gnu.org 
>>> <http://www.gnu.org/philosophy/free-sw.html>), and we say the work 
>>> is "free" (or "libre", to emphasize we are not talking about price). 
>>> For works that might be used in commercial contexts, the requisite 
>>> freedom includes commercial use, redistribution and modification.
>>>
>>> Creative Commons publishes six principal licenses. Two are 
>>> free/libre licenses: the Sharealike license CC-BY-SA is a free/libre 
>>> license with copyleft <http://www.gnu.org/copyleft>, and the 
>>> Attribution license (CC-BY) is a free/libre license without 
>>> copyleft. The other four are nonfree, either because they don't 
>>> allow modification (ND, Noderivs) or because they don't allow 
>>> commercial use (NC, Nocommercial).
>>>
>>> In my view, nonfree licenses are ok for works of art/entertainment, 
>>> or that present personal viewpoints (such as this article itself). 
>>> Those works aren't meant for doing a practical job, so the argument 
>>> about the users' control does not apply. Thus, I do not object if 
>>> they are published with the CC-BY-NC-ND license, which allows only 
>>> noncommercial redistribution of exact copies.
>>>
>>> Use of this license for a work does not mean that you can't possibly 
>>> publish that work commercially or with modifications. The license 
>>> doesn't give permission for that, but you could ask the copyright 
>>> holder for permission, perhaps offering a quid pro quo, and you 
>>> might get it. It isn't automatic, but it isn't impossible.
>>>
>>> /However, two of the nonfree CC licenses lead to the creation of 
>>> works that can't in practice be published commercially, because 
>>> there is no feasible way to ask for permission. These are CC-BY-NC 
>>> and CC-BY-NC-SA, the two CC licenses that permit modification but 
>>> not commercial use./
>>>
>>> /The problem arises because, with the Internet, people can easily 
>>> (and lawfully) pile one noncommercial modification on another. Over 
>>> decades this will result in works with contributions from hundreds 
>>> or even thousands of people./
>>>
>>> /What happens if you would like to use one of those works 
>>> commercially? How could you get permission? You'd have to ask all 
>>> the substantial copyright holders. Some of them might have 
>>> contributed years before and be impossible to find. Some might have 
>>> contributed decades before, and might well be dead, but their 
>>> copyrights won't have died with them. You'd have to find and ask 
>>> their heirs, supposing it is possible to identify those. In general, 
>>> it will be impossible to clear copyright on the works that these 
>>> licenses invite people to make./
>>>
>>> /This is a form of the well-known "orphan works" problem, except 
>>> exponentially worse; when combining works that had many 
>>> contributors, the resulting work can be orphaned many times over 
>>> before it is born./
>>>
>>> To eliminate this problem would require a mechanism that involves 
>>> asking _someone_ for permission (otherwise the NC condition turns 
>>> into a nullity), but doesn't require asking _all the contributors_ 
>>> for permission. It is easy to imagine such mechanisms; the hard part 
>>> is to convince the community that one such mechanisms is fair and 
>>> reach a consensus to accept it.
>>>
>>> I hope that can be done, but the CC-BY-NC and CC-BY-NC-SA licenses, 
>>> as they are today, should be avoided.
>>>
>>> Unfortunately, one of them is used quite a lot. CC-BY-NC-SA, which 
>>> allows noncommercial publication of modified versions under the same 
>>> license, has become the fashion for online educational works. MIT's 
>>> "Open Courseware" got it stared, and many other schools followed MIT 
>>> down the wrong path. Whereas in software "open source" means 
>>> "probably free, but I don't dare talk about it so you'll have to 
>>> check for yourself," in many online education projects "open" means 
>>> "nonfree for sure".
>>>
>>> Even if the problem with CC-BY-NC-SA and CC-BY-NC is fixed, they 
>>> still won't be the right way to release educational works meant for 
>>> doing practical jobs. The users of these works, teachers and 
>>> students, must have control over the works, and that requires making 
>>> them free. I urge Creative Commons to state that works meant for 
>>> practical jobs, including educational resources and reference works 
>>> as well as software, should be released under free/libre licenses only.
>>>
>>> /Educators, and all those who wish to contribute to on-line 
>>> educational works: please do not to let your work be made non-free. 
>>> Offer your assistance and text to educational works that carry 
>>> free/libre licenses, preferably copyleft licenses so that all 
>>> versions of the work must respect teachers' and students' freedom. 
>>> Then invite educational activities to use and redistribute these 
>>> works on that freedom-respecting basis, if they will. Together we 
>>> can make education a domain of freedom./
>>>
>>> -- 
>>> Everton Zanella Alvarenga (also Tom)
>>> Open Knowledge Foundation Brasil
>>>
>>>
>>>
>>> _______________________________________________
>>> Oer-community mailing list
>>> Oer-community at athabascau.ca
>>> https://deimos.cs.athabascau.ca/mailman/listinfo/oer-community
>>
>>
>>
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>
> -- 
> Rory McGreal
> UNESCO/COL Chair in OER
> Athabasca University
> rory at athabascau.ca
> Toll Free:1-855-807-0756
>
>
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