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

Fri Nov 30 14:40:36 MST 2012

Rory writes,

> For the third time, I would ask you to provide one example of CC  content that is locked down and that people cannot freely access. That would be helpful.

This is of course difficult to do since the content is not accessible. I can't surf the web by intuition.

But let's take my own content as an example, which is licensed under Creative Commons. If a university uses my content (which I know at least some universities do) but makes it available only in an internal repository, hence requiring a student to pay tuition to access it, then my CC-licensed content is not freely available.

Yes, I know, the student can currently access the content on my website (if he or she knows where to look) but I'm not going to live forever and we can easily imagine a day when the only extant copies of my work are on these websites.

That's one example.

Another example is the (unfortunately) common practice of placing DRM on public domain works (ie., CC-0). Here's an example: http://www.techdirt.com/articles/20090730/0257115712.shtml

In cases where this book is not accessible (or not findable) elsewhere on the web, the DRM makes this book inaccessible. Interestingly, this would be the case even if a person bought (or obtained) the book and tried to make it freely available - the DRM would prevent other (non-authorized) people from reading the book.

Stephen Downes
Research Officer | Agent de recherche
National Research Council Canada | Conseil national de recherches Canada
Institute for Information Technology | Institut de technologie de l'information
100 des Aboiteaux Street, Suite 1100 | 100, rue des Aboiteaux, suite 1100
Moncton, New Brunswick | Moncton (Nouveau-Brunswick) E1A 7R1
Tel.: (506) 861 0955
Fax: (506) 851 3630
Stephen.Downes at nrc-cnrc.gc.ca<mailto:Stephen.Downes at nrc-cnrc.gc.ca>

Government of Canada | Gouvernement du Canada

From: oer-community-bounces at athabascau.ca [mailto:oer-community-bounces at athabascau.ca] On Behalf Of rory
Sent: Friday, November 30, 2012 3:42 PM
To: oer-community
Subject: Re: [Oer-community] On-line education is using a flawed Creative Commons license

Stephen,
For the third time, I would ask you to provide one example of CC  content that is locked down and that people cannot freely access. That would be helpful.
I think you are confounding the difference between access to the copyright and access to one copy of the copright. A prined book is locked down and I can make one whether or not you add the NC restriction. I can also put your NC content on my server and lock it down. The NC licence does not prevent me from doing this either legally or in any other way. A for profit company can also do that with you NC licence. It just can't sell it without your permission. It can use it in any other way that it wants.
But, please I ask for the fourth time please provide me an example of the lock down that you are referring to.
All the best.
Rory
On 12-11-30 12:21 PM, Stephen Downes wrote:
Hiya Rory,

> You must have taken an ethics course. Your ability to rationalize shows the mind of a well-trained ethicist, who can justify any position.

To my perspective, it is the people who are calling commercial resources that you have to pay for 'free' who are the ones doing the rationalizing.

One of the advantages of having taken (and taught) ethics courses is the ability to see that even for such common terms as 'free' there are different perspectives.

'Free popcorn' inside the movie lobby is indeed free - if you are already inside the movie lobby. From the perspective of the person who cannot afford a movie ticket, however, the popcorn is not free at all.

A 'CC-by' OER can be used freely by anyone, true - but only by someone who already has one. If you are locked outside the movie theatre, the resource is no longer free (even if, if you had one, you could do whatever you wanted with it).

It's hard for me, from my perspective, not to see disagreement on this point as willful denial of the existence of other perspectives. It's as though the people inside the movie theatre simply refuse to contemplate the idea that there might even be people outside, unable to get in

-- Stephen

From: oer-community-bounces at athabascau.ca<mailto:oer-community-bounces at athabascau.ca> [mailto:oer-community-bounces at athabascau.ca] On Behalf Of rory
Sent: Friday, November 30, 2012 2:01 PM
To: oer-community
Subject: Re: [Oer-community] On-line education is using a flawed Creative Commons license

Stephen,
You must have taken an ethics course. Your ability to rationalize shows the mind of a well-trained ethicist, who can justify any position.
The Public Domain (PD) is the MOST open, which used to be the case prior to 1963 when the Common Law countries adopted the European approach to copyright i.e. all content is copyrighted by default.
So, in fact, the CC licence were formulated proceeding from the PD.
For most (if not all) practical purposes CC does not need the BY designation. People who us PD works invariably mention the author in any case because to do otherwise would be a misrepresentation. So CC-BY is almost synonymous with PD. Neither PD not CC add "Commercial". ALL uses mean ALL uses.
See comments below
On 12-11-30 7:05 AM, Downes, Stephen wrote:
Ilkka Tuomi  wrote,

> Logically, CC-BY-NC is a subset of CC-BY. In this sense, it is more restricted.

Not so. No entity in the set "CC-BY-NC" is also in the set "CC-BY".
RORY>>>ALL content in CC-BY-NC is in CC and in CC-BY. Please provide me with ONE example of ANY content that is NC that cannot also be used by anyone??  It doesn't exist.  They are not disjuncts.

It's a trick of the way CC licenses were originally formulated. The designations in fact mean:
- CC-by-Commercial (CC-by-C)
- CC-by-Noncommercial (CC-by-NC)
So as you can see, the two sets are disjuncts, specially, not-C and C
RORY>> There is no trick. The CC should be CC-ALL and it is CC-ALL as a licence that is trying to recapture the PD. It does not mean CC-Commercial  as this would not make sense. It would mean that the licences are restricted to Commercial use only.
Each addition, including  CC itself and BY and SA and NC are restrictions on the PD.

The creators of CC treated 'Commercial' as the default. There's no reason why they should have had to do this. They could have established the licenses the other way (indeed, the way I would have done it):
RORY>>> There is every historical reason to do this. They had to do this because CC is an attempt to return to the Public Domain by overcoming legal restrictions. This was the most logical step.

CC-by - allows all free uses, ie., no limitations on access and distribution
CC-by-C - allows commercial vendors to restrict distribution contingent upon payment
RORY>>> This is incorrect. Allowing commercial vendors to restrict distribution does not in any way stop you from using the works. They can restrict it, but others can use it if they wish. You can buy the bottled water from a restricted distribution vending machine or you can use the free tap.  Actually, restricting content in your house by copying the text on paper does not allow free use. Now they own  the book. They have locked it down like the vendors who sell it on their web site. But in both case you can still access and duplicate the content.

In fact, each of CC-by-C and CC-by-NC create restrictions. They create different sets of restrictions, which may be more or less limiting, depending on your perspective.
RORY>> No they don't. There are NO restrictions on CC -BY as it stands. What part of the word "ALL" do you not understand? There is no CC-C; it is CC-ALL because after CC,  the added conditions are Restrictions NOT allowances.

The 'commercial-by-default' world in which we live is something recent and something that has been created through the use of language and the setting of assumptions. The creation of a 'non-commercial' clause is a way of setting 'commercial' as the default. It makes it seem as though 'commercial' implies no additional restrictions. But it's just a trick of language, just a trick of perspective.
RORY>>> Not true. The Public Domain was the default and that goes back to the beginning of writing in one opinion, but at least to 1710 with the first copyright statute. PD always allowed commercial use. Your interpretation is the sleight of hand. There is no trick of perspective. ALL means ALL.

That's why it's false and misleading to say that 'CC-by-C' is 'more free', and why people shouldn't do it.

-- Stephen

Stephen Downes
Research Officer | Agent de recherche
National Research Council Canada | Conseil national de recherches Canada
Institute for Information Technology | Institut de technologie de l'information
100 des Aboiteaux Street, Suite 1100 | 100, rue des Aboiteaux, suite 1100
Moncton, New Brunswick | Moncton (Nouveau-Brunswick) E1A 7R1
Tel.: (506) 861 0955
Fax: (506) 851 3630
Stephen.Downes at nrc-cnrc.gc.ca<mailto:Stephen.Downes at nrc-cnrc.gc.ca>

Government of Canada | Gouvernement du Canada

From: oer-community-bounces at athabascau.ca<mailto:oer-community-bounces at athabascau.ca> [mailto:oer-community-bounces at athabascau.ca] On Behalf Of Ilkka Tuomi
Sent: Friday, November 30, 2012 4:28 AM
To: oer-community
Subject: Re: [Oer-community] On-line education is using a flawed Creative Commons license

A good conversation...

Stephen, it may be useful to distinguish between "abstract" openness and outcomes. Logically, CC-BY-NC is a subset of CC-BY. In this sense, it is more restricted. You are mainly talking about outcomes, i.e., whether the licensed resources will, or will not, be more or less freely accessible to potential users. In practice, you have to make quite a few assumptions about the actions of the different players, which may or may not be empirically right. E.g.:

"- 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"

As has been pointed out in the discussion, CC-BY-NC allows commerical players to negotiate a separate license. This is a private agreement between the parties and can, for example, contain terms that exclude other commercial actors from negotiating similar agreements.

I think Wayne's point about MIT OCW was very interesting. From the outcome point of view, the MIT OCW non-commercial restriction has lead to much broader availability and use of the resources that could have been possible without NC. More restricted can sometimes be better if the objective is wide access.

For the growth and maintenance of the resource, the situation can be different. The point is that if you are interested in the outcomes, you should focus on the empirical outcomes, for example, whether different licenses lead to enclosures of not. You might even ask whether enclosures are sometimes useful.

I think Stallman's point about the difference between software and OER content is relevant. In software, you adapt and redevelop functional modules. You reuse implementations of ideas. That's why patents are important for SW. In content, the issue is more about expression. The author may be interested in preserving the integrity of the message. That's why some countries have clearly separated moral rights from (commercial) copyrights.

Best
ilkka

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Rory McGreal

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