Authors Jonathan A. Poritz
License CC-BY-SA-4.0
The Legal Technology of Open:
Sharing with Creative Commons Licenses
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
9 August 2019, Colorado Learning and Teaching with Technology 2019
This work is released under a Creative Commons Attribution-ShareAlike 4.0 International License..
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 1 / 30
Activity 1: Where is copyright?
For the next two minutes:
If possible, make a brand-new, copyrightable work – an original work
which could be copyrighted (in the United States) if you so chose. You
may use anything you have access to in this room: paper and pen/pencil;
laptop; phone with its audio and/or video recording capacities;
pipe-cleaners and modeling clay you may have in your back pocket....
If it is not possible to create a copyrightable work under these
circumstances, write a few sentences, record a video, or otherwise fix in
some tangible medium your own original words describing why you cannot
do so.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 2 / 30
Discussion 1: Copyright is everywhere (in academia)
“...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 copyrightable1 .
“works of
Not ideas2 ; 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?
1
...probably ... but IAmNotALawyer and nothing in this presentation constitutes legal advice!
2
which, however, may be patentable
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 3 / 30
Activity 2: How to get that “©”
For the next minute:
If possible, get, or at least, start the process of getting a legal copyright on
the work you just made. This may involve:
• adding some text to your work [then: do that], or
• going to a government website [use your phone or laptop: get the
URL to share with the class], or
• filling something out and mailing it [along with something else,
perhaps? make a packing list!] somewhere [get the form, or a link to
it, and the address, to share with the class], or
• something else?
If you must pay a fee as part of this process, wait at the place where
you have to enter in your credit card number, and we’ll all share that
in the discussion to follow.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 4 / 30
Discussion 2: The “©” is automatic!
Under the Berne Convention – originally signed in 1886; today it has 177
signatories and is overseen by the World Intellectual Property Organization
[WIPO]3 – copyright is “frictionless”, in that it springs into existence the
minute the work is fixed.
Of course, this only matters if your 4
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).
For this reason, for academics not to know something about copyright
would be like a doctor who knows nothing of liability law....
3
Cory Doctorow says that WIPO “bears the same relationship to bad copyright law that Mordor has to evil in Middle Earth”
4
“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.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 5 / 30
Activity 3: What is copyright good for?
In the next minute, write down four things:
1. something you can do with a work whose copyright you own
2. something you can do with a work whose copyright you do not own
3. something you cannot do with a work whose copyright you own
4. something you cannot do with a work whose copyright you do not
own
Bonus round: What do time and space have to do with it?
Do any of your answers above change if you and the other party
involved – the copyright owner or person performing the dis/allowed
action – are separated in time and/or space? If so, by how much or
by what kind of border or line?
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 6 / 30
Discussion 3: 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 other parties to do so, for payment.
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.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 7 / 30
Activity 4: Is copyright all-powerful?
Do you know of any limitations to copyright? Based on situation, time,
location, use...?
Two activities to explore that:
Think of (and write down) something a user could do with a copyrighted
work that the copyright owner might not like, but could prevent. (Your
examples may differ depending upon the kind of work being used and the
legal jurisdiction....)
Why did earlier slides talk about “copyright owners?” Is there any
difference between copyright owner and author/artist/creator ?
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 8 / 30
Discussion 4: 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.”5
5
The rules are more complicated for works-for-hire, and any work created before 1978.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 9 / 30
Discussion 4 (cont): A useful limitation to copyright.
“.. the Fair use 6 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
6
a closely related concept in Commonwealth countries is called fair dealing there.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 10 / 30
Activity 5: Why all this copyright power?
Why would anyone set up a legal system which puts this kind of exclusive
control in the hands of copyright owners?
Take three minutes to brainstorm with folks around you to come up
with some reasons why such a system might make sense.
You might classify your reasons as to whether they are utilitarian
[centered on the consequences – often economic – of actions] or
deontological [based on rules, often coming from an abstract notion of
the moral sanctity of the act of artistic creation].
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 11 / 30
Discussion 5: The Founders had an answer
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 liberalism7 by 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
their ownership of the intellectual property in their respective Writings and
Discoveries.
7
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.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 12 / 30
Discussion 5 (cont): But the Founders were not academics
The [neo]liberal view of how to motivate creative activity is, I assert,
manifestly in tension with the longstanding8 values of the academic world,
in which world David Wiley’s 5Rs of Open, that anyone should be able to
Retain, Reuse, Revise, Remix, and Redistribute freely and without
seeking the creator’s permission, seem fundamental and self-evident.
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.
8
Don’t mention Pythagoras vs Euclid in this context unless you want to witness an unhinged mathematical rant.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 13 / 30
1st 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
9
9
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.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 14 / 30
Activity 6: The sine qua non of a scholarly IP system
Someone shout out the most fundamental required part of an
intellectual property system designed for use, re-use, remix, etc.
There are actually two sides to this:
producers of scholarly work: What do scholars most want to happen
with their work?
users of scholarly work: What do we insist of downstream users of
scholarly work? [This should be easy: we tell it to our students all the time,
use software systems to detect its violation, and discipline students when such
violations are detected.]
Take a minute to think through and write down some details of
this: Who would have to do what, when, including which components,
and in what format, to make this work?
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 15 / 30
Discussion 6: 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.)
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 16 / 30
Activity 7: Utilitarian and moral rights CC adjectives
Take three minutes to think and/or collaborate on what optional
adjectives you might add to CC licenses [like “BY”] so users could
choose to retain some of the power of copyright.
As you do this, think about the why all that copyright power we discussed
in Activity 5, and try to take a maximalist stance for both the utilitarian
[probably via economics] and the moral rights perspectives.
When you think of the copyright power you might want to offer optionally
to preserve in CC licensing, make up a two-letter CC adjective which can
be added to license (after the basic “CC-BY”). Write down as much detail
about how that power would play out for both the creator and a user of
the licensed work.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 17 / 30
Discussion 7: 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
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 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.]
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 18 / 30
Activity 8: Maximalist on the power itself
Take three minutes to think and/or collaborate on the following:
Suppose the power of copyright goes to your head, and you want to use it
in a maximalist way ... but to do the good of one of the other CC license
adjectives. Think of an adjective which could work in conjunction with
those others to make the good last longer.
You may chose to use viral open-source software licenses, like the GNU
Public License [GPL] used in the GNU-Linux operating system, as
inspiration here.
Once again, make a two-letter CC adjective code for this idea and describe
how it works for creator and user in as much detail as possible.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 19 / 30
Discussion 8: 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.
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.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 20 / 30
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 .
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 21 / 30
Activity 9: Remixing CC Licensed Works
Say you want to make a remix10 of an existing work which has a CC
license or is in the public domain [maybe you’re adapting an OER!].
Fill out the following chart with a X/X if you may/mayn’t use the
specified adapter’s license on your remix, given the original work’s license.
11
10
in the CC world, the nouns remix, adaptation, and derivative work all refer to the same thing
11
adapted from “Adapter’s license chart” by Creative Commons, which was released under a CC-BY 4.0 license.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 22 / 30
Discussion 9: Check Your Work
CC did this work for us, see their FAQ.
12
Here
means that is a permitted adapter’s license [i.e., it’s our “X”]
means it is technically permitted, but highly discouraged
means that is a forbidden adapter’s license [i.e., it’s our “X ”]
12
“Adapter’s license chart” by Creative Commons was released under a CC-BY 4.0 license.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 23 / 30
Activity 10: 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.
13
13
adapted from “Adapter’s license chart” by Creative Commons, which was released under a CC-BY 4.0 license.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 24 / 30
Discussion 10: 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 chart in the CC FAQ.]
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 25 / 30
Connection to OER
Remembering David Wiley’s 5R’s for OER, 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.]
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 26 / 30
Activity 11: What can YOU do NOW with CC licenses?
Take three minutes to think and/or collaborate on the following:
In order immediately to foster open education at your institution with the
help of Creative Commons licensing:
What can you do?
What can you help your colleagues do?
What can you help your students do?
Write a list of at least five specific actions you can take right away!
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 27 / 30
Discussion 11: Some ideas for action
• Educate yourself.
• Educate your students.
• Educate your colleagues.
• Use CC licenses on all of your work.
• Use appropriate attribution.
• Encourage policies favoring CC licensed materials.
• Share CC licensed material in editable form.
• Be aware of digital redlining when using CC.
• etc.
• etc.
• etc.
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 28 / 30
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 fantastic14 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
14
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!
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 29 / 30
Questions, Comments, and Contact Info
Questions? Comments?
Email (feel free!): jonathan@poritz.net ; Tweety-bird: @poritzj .
Get these slides at poritz.net/j/share/LToOCOLTT2019.pdf and all files
for remixing15 at poritz.net/j/share/LToOCOLTT2019/ .
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]
15
subject to CC-BY-SA
Poritz https://poritz.net/jonathan Legal Technology of Open COLTT, 9 August 2019 30 / 30