Authors Jonathan A. Poritz
License CC-BY-SA-4.0
Introduction to Creative Commons Licensing:
The Key to Using the 5Rs of OER with Confidence
Jonathan A. Poritz
jonathan@poritz.net
www.poritz.net/jonathan
Center for Teaching and Learning and
Department of Mathematics and Physics
Colorado State University-Pueblo
18 September 2019, Colorado Open Education Ambassadors Workshop
This work is released under a Creative Commons Attribution-ShareAlike 4.0 International License..
Poritz https://poritz.net/jonathan Introduction to Creative Commons Licensing 18 September 2019 1 / 27
The Hewlett Foundation definition of OER
According to the William and Flora Hewlett Foundation
OER are teaching, learning, and research resources that reside in the
public domain or have been released under an intellectual property
license that permits their free use and re-purposing by others.
In Colorado, the General Assembly put a version of this in HB18-13311 :
(6) ”OPEN EDUCATIONAL RESOURCES” MEANS HIGH-QUALITY TEACHING, LEARNING, AND
RESEARCH RESOURCES THAT RESIDE IN THE PUBLIC DOMAIN OR HAVE BEEN RELEASED
UNDER AN INTELLECTUAL PROPERTY LICENSE THAT PERMITS FREE USE OR REPURPOSING
BY OTHERS AND MAY INCLUDE OTHER RESOURCES THAT ARE LEGALLY AVAILABLE AND
AVAILABLE TO STUDENTS FOR FREE OR VERY LOW COST.
Colorado’s version muddies somewhat the waters by leaning on the price,
after copying Hewlett’s single-minded focus on freedom in use and
re-purposing.
1
the law that created the Colorado OER Council and funded the state OER grant program which began this year
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David Wiley’s 5Rs
In an extremely influential blog post2 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 scholarship.
2
The Access Compromise and the 5th R, by David Wiley, released under CC BY 4.0
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A new character joins the cast
The 5Rs are well and good, but they run seriously afoul of copyright law.
...Copyright? you cry, What’s copyright
copyright got to do with it?
Give me the next 17 minutes of your life, and I’ll answer that.
This is actually time well-spent, because copyright law is pretty much the
reigning system of laws which apply to the academic life. Therefore,
knowing a little bit of copyright law is only prudent for folks who work in
academia.
First of all, where do we see copyrights in academia?
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Copyright is everywhere in academia
Copyright applies to:
“...original works of authorship fixed in any tangible medium of expression”
17 U.S.C. §102
“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?
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 177
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.
Of course, this only matters if your 6
work is created or consumed in one of
the countries colored blue here:
Conclusion: Nearly everything faculty, staff, and students create in
institutions of higher education is born in chains (of copyright).
Now do you think it is worth knowing something about copyright?
5
Cory Doctorow says that WIPO “bears the same relationship to bad copyright law that Mordor has to evil in Middle Earth”
6
“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 (e.g., for a fee).
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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Limitations to copyright
Works-for-hire: the copyrights to works produced as part of someone’s
employment belong to the employer, not the employee.
Academic exception-to-the-exception: Traditionally, academics are
exempt from the works-for-hire doctrine – but check your contracts!
US Federal exemption: works which would fall under the works-for-hire
doctrine with the US federal government as employer are automatically
free of copyright – they are born directly into the public domain.
Limited duration: the exclusive control vested in a copyright owner only
lasts for a finite period of time: in the US, 70 years after the death of the
author, the works “fall into the public domain.”7
7
The rules are more complicated for works-for-hire, and any work created before 1978.
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Another (very useful) limitation to copyright
“.. the Fair use 8 of a copyrighted work, including such use by reproduction
..., for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is
not an infringement of copyright. In determining whether the use made
of a work in any particular case is a fair use the factors to be considered
shall include –
(1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.” 17 U.S.C. §107
8
a closely related concept in Commonwealth countries is called fair dealing there.
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Why is copyright given all this power?
Copyright – in fact, all intellectual property [IP] law – 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 liberalism9 , 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.
9
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 longstanding10 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.
The key legal idea here is to use the powers of copyright to subvert
their implications from within.
10
Don’t mention Pythagoras vs Euclid in this context unless you want to witness an unhinged mathematical rant.
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Common CC license misconception ... Hamlet quote
Creative Commons licenses do not reject copyright or give up on
copyright. Rather, they are entirely dependent upon copyright to bestow
the power on creators to subvert the goals of exclusive control in
traditional copyright in favor of legally enforced openness.
This is the very archetype of being
hoist by your own petard:
There’s letters seal’d: and my two schoolfellows,
Whom I will trust as I will adders fang’d,
They bear the mandate; they must sweep my way,
And marshal me to knavery. Let it work;
For ’tis the sport to have the engineer
Hoist with his own petard: and’t shall go hard
But I will delve one yard below their mines,
And blow them at the moon.
Hamlet, Act III, Scene IV
11
11
From Military Antiquities Respecting a History of The English Army from Conquest to the Present Time (1812) by
Francis Grose Esquire which is in the public domain in its country of origin and other countries and areas where the copyright
term is the author’s life plus 70 years or less. Downloaded from Wikimedia Commons.
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The Creative Commons strategy
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.
Let’s go through the clauses first, then combine them to make the full
license variants.
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BY is fundamental
All Creative Commons licenses begin “Creative Commons Attribution”
and have the icons and . The most basic license looks in situ like:
This work is released under a Creative Commons Attribution 4.0 International License.
[Note that is not the license on these slides: it is merely shown here as an example.]
It is good form to put this license statement – with link to specific CC
license web page – on the title page or at least near the front of the work.
You may freely retain, reuse, and redistribute CC-BY works, but you must
always give attribution. There are helpful tools, or just remember: TASL.
Title: What is the name of the work?
Author: Who owns the work?
Source: Where can it be found? (Provide link if possible.)
License: Which license is the work distributed under? (Provide link
to creativecommons.org license source.)
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NC and ND
The maximalist economic stance on the benefit of copyright is: the creator
wants any profits to be “mine, all mine.” Under CC-BY, the work will be
freely shared, so the best this maximalist can do is to insist that at least
dammit, no one else will make any money off of my work!
This is the NonCommercial license adjective, with icons , , or ,
depending upon jurisdiction.
The maximalist moral rights stance is: the creator doesn’t want anyone to
mess with their work. Under CC-BY, the work will be freely shared, so the
best this maximalist can do is to insist that at least my work will never be
changed – no derivative works will be made from my perfect original!
This is the NoDerivatives license adjective, with icon .
[Note that since version 4.0, the ND adjective only requires that users may not distribute any
derivative works they make, since it is hard to control what they may do in private.]
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Go viral with SA
The maximally controlling creator who is (perhaps somewhat
hypocritically) interested in freedom continuing into the future, might
insist that any derivative works which come from their work should be
shared with the same license as theirs was. The attitude here is
I believe in freedom and, dammit, if you are going to remix my work you
better believe in that same kind of freedom for your new work!
This is the ShareAlike license adjective, with icon .
Note that since SA is a requirement on how future creators will license
derivative works, it doesn’t make sense to combine SA with ND, since ND
does not allow derivative works to be distributed at all.
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Summary of all combined CC licenses
Here are the resulting possible Creative Commons licenses:
To this we should add one more licensing situation: public domain. The
Creative Commons has a tool and license called CC0 [pronounced
“C-C-zero”] which gets as close as possible to public domain in all
jurisdictions around the world, even with the varying rules that may apply.
The corresponding license symbol is .
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Remixing CC licensed works
Licenses on a remix12 of an existing work with a CC license or in the public
domain, the adapter’s license, are restricted by the original work’s license:
13
7→ a permitted adapter’s license
7→ technically permitted, but highly discouraged
7→ a forbidden adapter’s license
12
in the CC world, the nouns remix, adaptation, and derivative work all refer to the same thing
13
“Adapter’s license chart” by Creative Commons was released under a CC-BY 4.0 license.
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Extra credit
Say you want to make a remix combining two different original works.
Fill out the following chart with a X/X if you may/mayn’t make a
remix, with some license, given the original works’ licenses.
14
14
adapted from “Adapter’s license chart” by Creative Commons, which was released under a CC-BY 4.0 license.
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Check your own damn extra credit
Come on, show some independence.
No, really, the idea is to use the Adapter’s license chart to see if there
exists any possible license which could be both an adapter’s license for
work A and for work B.
If so, that means your remix can combine those works and use that
common adapter’s license.
If not, there is no consistent way to put a single valid license on the
combined remix, so it is not a valid combination.
[If you are not confident in your work and cannot find me to have a conversation
about it, there is a filled-in version of the chart in the CC FAQ.]
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Connection to OER
Remembering Wiley’s 5Rs, we are left with only some of the possible
Creative Commons licenses as being fully OER... although there is clearly
room for some debate about exactly where the cut-off lies:
[From Open licenses by Alek Tarkowski, distributed under a CC-BY 4.0 license.]
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Some ideas for action: copyright, 1
About Copyright:
• Be scared, be very scared. ... Not really, but do get actual legal
advice in any complex situation!
• Use materials under the umbrella of fair use, but cautiously
cautiously!
cautiously E.g.,
simple rules of thumb like It’s for education, so it’s OK. or I’m using
less than 10% of the material, so it’s OK. are almost all wrong.
• Look into your faculty contract language to see if it states the
traditional academic exception to the works-for-hire doctrine. If it
does not, you probably do not own the copyright on your works!
• If there is language in your faculty contract about who owns
copyrights, make sure it applies to you: frequently, not all employees
are treated equally.
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Some ideas for action: copyright, 2
If you have the time and energy for more assertive action on Copyright:
• If your contract doesn’t talk about copyright ownership, or does but
not all employees are treated equally, organize and agitate to get that
put in and/or corrected.
• Another possible target for organization and activism would be to get
a statement into your contract or in some other category of campus
policy which favors CC licensing where appropriate. E.g., if you
cannot get your administration to give instructors the copyrights in
their educational materials (this often happens with non-tenure-line
instructors), maybe you can get a promise that such materials will be
released with a CC license, perhaps one from the more OER-favorable
end of the spectrum.
• Get involved in copyright reform in your country or region: There are
scary things happening all over (Canada, the EU, Australia,...).
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Some ideas for action: Creative Commons Licensing
Now that you know some more about Creative Commons Licenses:
• Get more knowledge! Read more about Creative Commons, take the
CC Certificate Course, talk to your campus librarians (they have
magical powers in this area, as well).
• Use materials however you want, without the hassle of asking a lawyer
if fair use applies in your situation, when those materials have CC
licenses.
• Of course, whenever you use CC licensed-materials, get into the habit
of giving good TASL attributions. [This is just a habit, like always
using good MLA or APA citations!]
• Think hard about when you can, and when you feel comfortable
about, putting a CC license on your work. Personally, I’ve ended up
with the position that I will put a CC license on everything I create,
with only extraordinary circumstances pushing me not to go open.
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Resources
Creative Commons:
• main site: creativecommons.org
• FAQ: creativecommons.org/faq
• license chooser: creativecommons.org/choose
• marking your work with a CC license: on the CC wiki here.
• information on the fantastic15 on-line course leading to a Certificate
of Mastery in Open Licensing : certificates.creativecommons.org
Misc:
• the Open Attribution Builder from another state (Open Washington)
• my own Copyright Cheat Sheet for University Faculty
• my own Creative Commons Cheat Sheet for University Faculty
15
But I’m biased: I’ve taken the course, become a Master, and now instruct it – sign up and maybe you’ll be in my section!
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Questions, Comments, and Contact Info
Questions? Comments?
Email (feel free!): jonathan@poritz.net ; Tweety-bird: @poritzj .
Get these slides at poritz.net/j/share/I2CCLOEAW2019.pdf and all files
for remixing16 at poritz.net/j/share/I2CCLOEAW2019/ .
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]
Also, tons of useful stuff at the OER site of the Colorado Department of
Higher Education masterplan.highered.colorado.gov/oer-in-colorado/ .
16
subject to CC-BY-SA
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