Authors Jonathan A. Poritz
License CC-BY-SA-4.0
Choose and Use
Creative Commons Licenses
for
Open Educational Resources
Jonathan A. Poritz
jonathan@poritz.net
poritz.net/jonathan
This slide deck, except where otherwise indicated, is by Jonathan Poritz and is released under a
Creative Commons Attribution-ShareAlike 4.0 International License. This version: 20 Jul 2022 23:53MDT
These slides, also in editable form, are available at poritz.net/jonathan/share/chooseanduseCC/ .
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Intro: Land acknowledgement
Before we begin, I must acknowledge that I am physically located at
this moment within the unceded territory of the Ute Peoples. The
earliest documented people in this area also include the Apache,
Arapaho, Comanche, and Cheyenne. An extended list of tribes
with a legacy of occupation in this area can be found here: Colorado
Tribal Acknowledgement List.
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What are we doing here?
This presentation is part part of an effort to help folks in higher education (in the US,
mostly) become comfortable choosing and using Creative Commons licenses in their work.
The overall approach is quite like a flipped classroom. This presentation video is intended
to provide a little context, motivation, and overview. At the end, there are links to four
additional readings, each focused on a particular part of the picture, with which you are
encouraged to spend some time – they are each fairly short, but they do contain
technicalities.
Later, in our synchronous session or via any asynchronous method you prefer, we can
discuss whatever in the readings was unclear or particularly new to you, and there will be
chances to work on applications of the ideas around CC licensing in situations which
matter to you.
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The UNESCO OER Definition
UNESCO unanimously adopted its OER Recommendation on 25 November 2019.
That Recommendation includes the definitions
“1. Open Educational Resources (OER) are learning, teaching and research
materials in any format and medium that reside in the public domain or
are under copyright that have been released under an open license, that
permit no-cost access, re-use, re-purpose, adaptation and redistribution by
others.
2. Open license refers to a license that respects the intellectual property rights
of the copyright owner and provides permissions granting the public the
rights to access, re-use, repurpose, adapt and redistribute educational ma-
terials.”
After a confusion of different definitions due to the William and Flora Hewlett
Foundation, Creative Commons, and others, we should take this definition as canonical:
193 countries’ diplomats can’t be wrong!
This is quite reminiscent of another famous perspective on OER, the fabulous “5Rs.”
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David Wiley’s 5Rs
In an extremely influential blog post1 from 2014, David Wiley listed the 5Rs of
Openness, the unfettered rights to
• Retain - to make, own, and control copies of the content
• Reuse - to use the content in a wide range of ways
• Revise - to adapt, adjust, modify, or alter the content itself
• Remix - to combine the original or revised content with other open
content to create something new
• Redistribute - to share copies of the original content, your revisions,
or your remixes with others
Educational resources are truly OER if and only if they have these 5Rs, as Wiley argues
eloquently ... or as should be obvious when academics think about their pedagogy and
scholarship.
1
The Access Compromise and the 5th R, by David Wiley, released under CC BY 4.0
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We have to talk about copyright ... because it is everywhere in academia
The 5Rs are well and good, but they run seriously afoul of copyright law.
copyright got to do with it?
...Copyright? you cry, What’s copyright
Well, copyright applies to:
“...original works of authorship fixed in any tangible medium of expression” 2
“original” But very minimal originality suffices. E.g., your
vacation snaps are probably boring but copyrightable3 .
“works of
Not ideas4 ; called the idea-expression dichotomy
authorship” Some devilish details: fictional characters are
copyrightable; recipes and theorems are not; some
plotlines are, others are scènes à faire and so
are not copyrightable....
“fixed ...” E.g., this is why there’s always a recorder going in
the back of a jazz club – now do you want to record
your presentations?
2
This is from §102 of the US Copyright Act
3
...probably ... but IAmNotALawyer and nothing in this presentation constitutes legal advice!
4
which, however, may be patentable
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The “©” is unnecessary
Under the Berne Convention – originally signed in 1886; today it has 179 signatories and
is overseen by the World Intellectual Property Organization [WIPO]5 – copyright is
“frictionless”, in that it springs into existence the minute the work is fixed – no
registration with the government or other formalities are required!6
Of course, this only matters if your work is created or
consumed in one of the countries colored blue here:
Conclusion: Nearly everything faculty, staff, and students create or use in institutions of
higher education is under copyright!
5
Cory Doctorow says that WIPO “bears the same relationship to bad copyright law that Mordor has to evil in Middle Earth”
6
Registration is necessary if you want to go to court to protect your copyright. Note also that the fixation requirement exists in the US but not in a
majority of Berne Convention countries, so in most places around the world you only have to create your work or share it to have a copyright, and no
fixation is needed.
7
“The signatories of the Berne Convention for the Protection of Literary and Artistic Works,” by User:Conscious was released under a CC BY-SA
3.0 license.
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The uses of copyright
A copyright owner has the exclusive right to
• perform,
• display publicly,
• copy,
• distribute, and
• create derivative works from
the copyrighted work, or to authorize others to do so ... for a fee, one imagines.
Some devilish details:
Is streaming the same thing as copying, legally? Because it is, technically.
Is putting a link to a work the same as copying or distributing it?
What constitutes a derivative work is tricky! Correct typos: no; translate: yes;
change file format: no; write a sequel: yes; put in anthology: no; etc.
In the OER/CC world, the concepts of a remix and a derivative work have an
... unfortunate relationship.
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Copyright and the 5Rs
There seems to be some serious conflict here:
Copyright: 5Rs:
...the exclusive right to ! ...unfettered rights to
• perform, • Retain
• display publicly, • Reuse
• copy, • Revise
• distribute, and • Remix
• create derivative works • Redistribute
Conclusion: Traditional [“all rights reserved”] copyright is antithetical to defining
characteristics of OER.
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Why is copyright given all this power?
Copyright in the United States stems from Article I, Section 8 of the US Constitution,
which gives Congress the power to enact laws
“To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.”
Here, the Founders were following classical liberalism8 , assuming that creators could be
seduced to greater creative production of Science and useful Arts by the lure of monopoly
profits, for limited Times, coming from ownership of the intellectual property in their
Writings and Discoveries.
Other countries base their copyright laws instead, or also, on the concept of author’s or
moral rights ... a mystical connection that is viewed as existing between creator and
creation.
8
Not to be confused the the more modern neoliberalism, which much more relentlessly thinks of everything in human life in purely market terms and
which is the “free-market fundamentalism” behind many of today’s problems in higher ed and beyond.
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The authors of the U.S. Constitution were not academics
The [neo]liberal view of how to motivate creative activity is, I assert, manifestly in
tension with the longstanding9 values and practices of the academic world. We’ve already
noticed the tension with Wiley’s 5Rs.
So how can we deal with the automatic creation of restrictive and entirely anti-academic
copyrights?
Fortunately, some lawyers were inspired by both Richard Stallman’s GPL license for free
software and by a case they lost which had questioned the constitutionality of the Mickey
Mouse Protection Act, to found the Creative Commons in 2001, and create licenses.
Creative Commons licenses are declarations that the copyright owner can attach to a
work (usually by reference, naming the CC license and giving a link to the full legal text
at creativecommons.org), whereby the owner promises not to exercise any of their
copyright powers so long as others use their work in specific ways.
These specific allowed ways are laid out in the several variants of CC licenses which exist,
which are built up out of several basic clauses. The clauses are easy to understand for
academics because they provide legal enforcement of ideas which make a lot of sense in
particular academic use cases.
9
Don’t mention Pythagoras vs Euclid in this context unless you want to witness an unhinged mathematical rant.
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The augmented CC license spectrum
Mapping the clauses in that UNESCO OER definition to the CC license suite –
augmented by the two CC public domain tools and, because there are still people outside
of the open movement, all-rights-reserved copyright – we get:
Least Freedom
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Your Homework
Hopefully you now have some context on
• How ubiquitous and powerful copyright is, but how the all-rights-reserved version is
at odds with the culture of higher education and particularly with the 5Rs.
• How Creative Commons licenses enable academics to share their work despite
copyright law, with fine-grained control over the kinds of sharing allowed.
To be an open education practitioner fluent in CC licenses, you likely will need to learn
• A bit more background on copyright: the details matter!
see Copyright Cheat Sheet for Higher Education [in the US]
• More background on Creative Commons licenses, including how to apply them to
your work and how to use others’ CC-licensed work.
see Creative Commons Cheat Sheet for Higher Education [in the US]
• Arguments for which CC license to choose for your open ed work
see Licensing Considerations for Your OER: An Argument for Virality
• How to license an adaptation/remix, which is core to open educational practice
see New Charts for Adaptation and Remix
Please read those resources (or skim if you are familiar with the topic). We will discuss
all related ideas and do application examples relevant to your work soon.
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