Authors Jonathan A. Poritz
License CC-BY-SA-4.0
Edge Cases for Adaptation and Remix Permission:
An Advanced Seminar for OER Practitioners
Jonathan A. Poritz
jonathan@poritz.net
poritz.net/jonathan
22 October 2020, Creative Commons Global Summit
This slide deck, except where otherwise indicated, is by Jonathan Poritz and is released under a
Creative Commons Attribution-ShareAlike 4.0 International License.
These slides are available at poritz.net/jonathan/share/ECARP/ .
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 1 / 29
Land acknowledgement
Before I begin, I need to say that while we are meeting in
this virtual space from many locations all over the planet,
I am myself 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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Lots of folks want a deep dive into CC licenses
Some of them gravitate to the CC Certificate Course.
1
There are both Educator and Librarian sections [at this time].
1
Creative Commons Certificate webpage by Creative Commons, licensed under a Creative Commons Attribution 4.0
International license, retrieved 18 October 2020
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2
Cert course participants from six continents
I’ve been facilitator for five Educator and two Librarian sections, with a
total of 153 participants ... from all over the world2 .
The great majority of participants in both types of sections have been
interested in adopting, adapting, and creating3 Open Educational
Resources [OER], or helping others do so, in my experience.
2
I count six continents having participants in my sections, but not everyone divides the Earth into continents the same way.
3
I’m trying to get people in the OER community to call this AACing.
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Also many OER practitioners in my home state
I live in Colorado, USA (a large, rectangular4 state in
the “mountain west” of the US).
Colorado has had, since 2017, an OER Council housed 5
in the state Department of Higher Education, which
• organizes a conference,
• distributes grants (totaling around $1.5 million
so far) to public institutions of higher education
[PIHEs] in the state for AACing OER, and
• has trained and supports a cohort of around 150
Open Ambassadors in those PIHE.
Another large group of OER AACers who often need to talk
through complex licensing situations.
4
but not actually: in reality, it has 697 sides! it only looks rectangular from space.
5
Colorado Rises: Transforming Educational Practices through Open Educational Resources, 2020, by the Colorado
Department of Higher Education, of unclear copyright status, maybe public domain; also, I assert this use is fair.
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OER practitioners want to adapt and create
...that’s kind of the point, isn’t it?
[Well, price is important, particularly in the US with its $1.764Trillion
student debt. but adaptation and creation are strong motivators for
faculty.]
If your adapting and creating OER, the main thing that makes this not an
enormous, unimaginably huge task is building off of openly licensed prior
work.
To the extent that the OER way in education is viable/sustainable, it
depends fundamentally on adapting and remixing the work of others.
To misquote Isaac Newton6 : If we want to see more OER, it will be by
standing on the shoulders of openly licensed giants.
6
apparently he said “If I have seen further it is by standing on the shoulders of giants.”
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OER practice requires insight into licensing complexities
OER practitioners use a variety of licenses:
• some like the simplicity of CC BY;
• some want to force their work’s future descendents to remain open by
apply a license with the ShareAlike clause;
• some are still in the process of detoxing from the dominant neoliberal
ideology and insist upon a license with the NonCommercial clause.
Practitioners also want to understand how their license choice constrains
what future actors – including possibly bad actors – may do with their
work or its derivatives.
Details about what licenses can be applied to adaptations of works under
all CC licenses matter.
Details about what works under different CC licenses can be remixed
together matter.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 7 / 29
Some guidance from the Vatican of open licensing
The Creative Commons website has some wonderful resources to which I
come back, over and over, and send CC Cert courses participants, and
which I recommend to the OER AACers in Colorado and all over the world.
In particular, the CC FAQ answers the question “Can I combine material
under different Creative Commons licenses in my work?,” helpfully
beginning that answer with “It depends.”
Fortunately, the answer goes on to explain how it depends, including with
two crucial charts7 :
• The License Compatibility Chart and
• The Adapter’s License Chart.
7
Both charts are by Creative Commons, can be found on the CC FAQ here, and are released under a CC BY 4.0
International license. I will in these slides repeatedly use and refer to the charts and nearby text (similarly licensed) in the CC
FAQ, without repeating the attribution each time. There’s also probably a good fair use case for this use, in the US at least.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 8 / 29
The License Compatibility Chart
“If there is a check mark in the box where [a] row and column intersect,
then [works with those licenses] can be remixed. If there is an “X” in the
box, then the works may not be remixed unless an exception or limitation
applies.”
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The Adapter’s License Chart
“When creating an adaptation of material under the license identified in the
left-hand column, you may license your contributions to the adaptation
under one of the licenses indicated on the top row if the corresponding box
is green. CC does not recommend using a license if the corresponding box
is yellow, although doing so is technically permitted by the terms of the
license. ... Dark gray boxes indicate those licenses that you may not use as
your adapters license.”
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Things I wondered about the License Compatibility Chart
• Why are there are two columns 9
for the public domain?
• Why is it called a License Com-
patibility Chart when neither the
Public Domain Mark nor CC0 is
a license?
• Why are icons in that order and
not the order from “more free-
dom” to “less freedom” used all
over the OER world?
• Should I memorize it?8
8
Oy, vey.
9
From Open licenses by Alek Tarkowski, distributed under a CC-BY 4.0 license.
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Things I wondered about the Adapter’s Chart
• Why does it have abbreviations and not icons ... or why does the
other chart have icons and not abbreviations?
• Why does it use colored boxes to convey information, not symbols?
• Why is it called an Adapter’s License Chart when “PD” is not a
license?
• Why are the column labels the same as the row labels ... but in a
different order?
• Should I memorize it?10
And, most perplexing
• What’s with those yellow boxes?
10
Again, Oy, vey.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 12 / 29
Things I wondered about both charts
• Is there some relationship between them?
• If so, maybe OER practitioners don’t have to memorize them both!
• But, if so, why aren’t them some strange marks which are neither an
“X” nor a check mark, in the License Compatibility Chart, as a
consequence of the dreaded yellow boxes?
• Could both of them get a row and column for “all-rights-reserved
©,” or would that make no sense for some reason?
• Could they both be made more accessible? E.g., the Adapter’s License
Chart uses color only to convey information, which is not a good idea.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 13 / 29
First, cosmetic changes
We want to include public domain (only once, though) as a column and
row label, so let’s stop calling them “licenses,” rather using “copyright
statuses.”
Another non-license copyright status we should definitely include is
“all-rights-reserved ©” – practitioners do wonder if they can use works
which have that status, and if others will be able to apply that status to
their work or its derivatives in the future. Let’s answer these concerns in
more complete charts.
It should not be hard to put all the copyright statuses in the same order
for columns and rows, on both charts, and in an order based on the “more
freedom” to “less freedom” axis widely used in the OER world.
We can definitely make them more accessible.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 14 / 29
Next, there is indeed a relationship
A remix of two original works A and B is nothing more than a single work
C which is simultaneously a derivative of A and a derivative of B.
Therefore, the License Compatibility Chart – or we should call it the
Remix Compatibility Chart to avoid using the word “license” – is
nothing other than an table of answers to the question:
Does there exist a single copyright status for the work C which
can be simultaneously a valid status on a derivative of A and a
valid status on a derivative of B?
In other words, is there a single column in the Adapter’s License chart – or,
rather, let’s call it the Adaptation Status Chart to avoid the “license” –
corresponding to a copyright status for C which has a green box in both
the rows corresponding to the status of A and the row for the status of B?
So we will need to memorize, at most, the Adaptation Status Chart.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 15 / 29
What about those yellow boxes?
Remember
The FAQ text actually says
“CC does not recommend using a license if the corresponding box is yellow,
although doing so is technically permitted by the terms of the license. If
you do, you should take additional care to mark the adaptation as
involving multiple copyrights under different terms so that downstream
users are aware of their obligations to comply with the licenses from all
rights holders.”
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First shock: works under PD may not be completely free
Notice the two yellow boxes in the column under PD: derivatives of works
under CC BY and CC BY-NC can, technically, be put into the public
domain. (This can also happen “naturally,” due to copyright expiration.11 )
But, as the FAQ text says, future users must comply with all license terms,
including attribution.
Hence there can be works under PD for which you must nevertheless give
attribution to some antecedent work from which that PD work was derived
– works in the public domain may not completely free of copyright
encumbrances!
11
Exercise to the reader: think about different durations of individually and corporate-owned copyrights.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 17 / 29
Small aftershock: same thing for ARR ©
While there is no column for “ARR ©” in the original of this chart, we
intended to add one, and just as for PD, the derivative of a work under CC
BY or CC BY-NC could be put under someone’s ARR ©.
Hence there can be works under someone’s ARR © over which they
nevertheless do not have complete control, in that they must always give
attribution to some antecedent work whenever they use that work.
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 18 / 29
Second shock: BY-NC is viral
That language in the FAQ brings our attention to downstream works.
There’s also a yellow box for a BY derivative of a BY-NC work. But I
thought NC only applied to the work itself, not its potential derivatives – if
you want to impose NC on the derivative works, you have to use
BY-NC-SA, I thought.
I was wrong. BY-NC imposes the non-commercial restriction on
re-use of a work and on uses of any derivatives of that work!
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 19 / 29
The legal code
Every once and a while, it is good practice to screw your courage to the
sticking place and look at the legal code. In fact, in the legal code for
BY-NC 4.0 we find:
“Section 2 - Scope
a. License grant
1. Subject to the terms and conditions of this Public License, the
Licensor hereby grants You a worldwide, royalty-free,
non-sublicensable, non-exclusive, irrevocable license to exercise
the Licensed Rights in the Licensed Material to:
A. reproduce and Share the Licensed Material, in whole or in
part, for NonCommercial purposes only; and
B. produce, reproduce, and Share Adapted Material for
NonCommercial purposes only.”
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Acronyms for new charts
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A new chart for adaptation
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Key for the new adaptation chart
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A new chart for remix
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Key for the new remix chart
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Another new chart for remix
poritz.net/jonathan/share/ECARP/ Edge Cases for Adaptation and Remix CC Global Summit, 22 Oct ‘20 26 / 29
Key for the other new remix chart
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Summary
Take-aways:
• Works in the public domain can have copyright-based encumbrances.
• The BY-NC license has a viral aspect.
• A new, improved, more complete, chart for adaptation is here:
https://poritz.net/jonathan/cc/charts/adaptation.html
• A new, improved, more complete, chart for remix is here:
https://poritz.net/jonathan/cc/charts/remix.html
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Questions, Comments, and Contact Info
Questions? Comments?
Email: jonathan@poritz.net ; Tweety-bird: @poritzj .
Get these slides at poritz.net/j/share/ECARP.pdf and all files for
remixing12 at poritz.net/j/share/ECARP/ .
If you don’t want to write down that full URL, just remember
poritz.net/jonathan/share
or poritz.net/j/share
or poritz.net/jonathan [then click Always SHARE]
or poritz.net/j [then click Always SHARE]
or scan −−−−−−−−−−−−−−−−−−−−−−−−−−−−→
[then click Always SHARE]
12
subject to CC-BY-SA
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