The murky issue of licensing

Over on the excellent new-look Cloudworks, there’s a debate going on about what to do about licensing of content on the site.  There’s two questions: one is what license to choose, and the other is what to do about the stuff that’s already on the site (!).  The latter I’m going to discuss over on that article, since it really only applies to Cloudworks, but what license is the Right One is a big and more general question.

This is far from a settled issue in the educational community. There’s reasonable consensus that Creative Commons licences are Good, rather than more restrictive ones, but as you probably already know, there are multiple versions of Creative Commons licenses.   The details are set out nicely on the Creative Commons Licenses page.  As someone releasing material, there are basically four conditions you can choose to apply:

  • Attribution (BY – must give credit)
  • Share Alike (SA – can make derivative works but only if licensed under a similar licence)
  • Non-Commercial (NC – only if not for commercial purposes)
  • No Derivatives (ND – can only distribute verbatim copies, no derivative works)

You can combine (some of) these to create six distinct licences:

  • Attribution (CC:BY)
  • Attribution Share Alike (CC:BY-SA),
  • Attribution No Derivatives  (CC:BY-ND),
  • Attribution Non-Commercial (CC:BY-NC),
  • Attribution Non-Commercial Share Alike (CC:BY-NC-SA)
  • Attribution Non-Commercial No-Derivatives (CC:BY-NC-ND)

There’s also a newish licence called CC0, which is intended as a way of unambiguously releasing a work into the public domain, free of any restraint.

So – assuming your aim is to promote the widest possible access to the material – what license should you choose?

There is a big, ongoing and fundamental argument going on in the Open Educational Resources (OER) and wider online educational community about this, with Stephen Downes and David Wiley perhaps the most articulate/notable exponents of two different positions.  To caricature horribly (and my apologies to both), Stephen Downes’ position is that the most effective licence is CC:BY-NC-SA, and David Wiley’s is that simple CC:BY is better (or even CC0).  This is overlaid (or perhaps underpinned) by a difference of approach, between a strong principled approach, and a pragmatic one.  (If you’re at all interested, I really do recommend digging in to their ongoing conversation about this.  A good starting place might be this post by Stephen Downes, and this one by David Wiley, mostly on NC – or these lists of the responses of one to the other.  If you’re going to Open Ed in Vancouver, they’re planning to debate each other face-to-face, which should be very illuminating.  A recent contribution to the ongoing debate is that Wikipedia has recently moved to CC:BY-SA.)

The argument for minimal licensing (CC:BY or less) is in essence that the other conditions create un-necessary barriers to reuse and distribution.  So, for instance, insisting on Non-Commercial would stop a company distributing printed copies of the work for profit, which might make it more available than it would otherwise be.  The arguments for more restrictive licensing include a fear that commercial interests will crowd out the free sources, using their greater marketing leverage, and that requiring Share-Alike keeps the ‘open-ness’ attached to the work.

There are obvious parallels with the Free/Open Source Software debate: there, the ideologically-pure line (what you might call the Richard Stallman view) has not been anything like as widely-adopted as the more flexible one (what you might call the Linux view).  Being widely-used, of course, does not mean that the approach is right.

For educational resources, my own current personal view is that CC:BY is the licence of choice, where possible.

It’s the least restrictive license and is the lowest barrier to sharing. All the other CC licenses create speedbumps (or worse) to people who want to use or remix  material.

We know that re-use is not widespread default practice in the educational community, and adding in extra barriers seems entirely the wrong tack to me.  If you’re wanting to use something, the extra conditions create headaches that make it  – for most practical purposes – at least look like it’s easier and quicker to just re-create your own stuff.  It’s hard enough persuading colleagues that it’s a good idea to re-use material where possible rather than re-creating it, never mind if they also need a long course in Intellectual Property Rights to understand what they can and can’t do with it.  Each of the qualifications to a simple CC:BY adds extra questions that the potential reuser needs to think through.

We can dismiss ‘No-derivatives’ fairly easily: it’s an explicit barrier to remixing or editing.   As a potential user, you have to think about things like how much you’re allowed to quote/reuse as fair use/comment.  And if you are prepared to simply copy it verbatim, what constitutes verbatim?  What if you change the font?  Or print it out from an online version?  Put a page number, heading or links to other parts of your course at the top or bottom?  Can you fix a glaring and misleading typo?

‘Non-commercial’ is also full of tricky questions.  Most universities are not commercial for these purposes … except not all university activities are covered.  What about using it on a website with ads on it?  Like, say, your personal academic blog that’s hosted for free in exchange for unobtrusive text adverts?   What about a little ‘hosted for free by Company X’ at the bottom?  A credit-bearing course where all the students are funded by the State is clearly not commercial in this sense … but what about one where (in the UK context) they’re all full fee-paying foreign students?  Or a CPD-type course where there’s no degree-level credit and the learners all pay fees?

‘Share-alike’ means you have to worry about whether the system you’re wanting to use the material on allows you to use a CC licence or not.  Does, say, your institutional VLE have a blanket licence that isn’t CC-SA compatible?  And what if you want to, say, produce a print version with a publisher who (as most do) demands a fairly draconian licence?

For any given set of circumstances, there are ‘correct’ answers to most of these questions.  (And they’re certainly not all ‘No you can’t use it’ in many situations that obtain in universities.)  But you need to be pretty savvy about IP law to know what they are.  And even then, a lot of it hasn’t been tested in the UK courts yet, so you can’t be certain. Worse, what you want to do with the stuff when you’re reusing it may change in future – you might start off making a free online course, but then it might take off and you want to produce a book … but you can’t because some of the stuff you used had NC attached.  Or you might want to transfer your free non-assessed online course to a more formal for-credit version in your University on the institutional VLE … but you can’t because some of the material had SA attached.

You can be a lot more confident about future flexibility if you stick to CC:BY material, and there’s a lot less to worry about whether you’re doing it right.  So my view is that if you want to release material to be re-used as widely as possible, CC:BY makes your potential audience’s life much easier.

Complete public domain release would – on this argument – be even better, except that as an academic, I see attribution as crucial and fundamental, so I can’t let go of that!

I’m not overwhelmingly ideologically committed to this position: it’s very much a pragmatic view of what is most likely to get the best outcome.  I certainly don’t dismiss the counter-arguments about the dangers of commercial, closed pressures: they are real.  But I think on the balance of probabilities that the ease-of-reuse argument outweighs those, and CC:BY is usually the licence of choice.


Author: dougclow

Academic in the Institute of Educational Technology, the Open University, UK. Interested in technology-enhanced learning and learning analytics.

6 thoughts on “The murky issue of licensing”

  1. I think your comparison to the Free/Open source software debate is a bit off: it’s actually more the Stallman/GPL model (you retain copyright, attribution must be given and any changes you make must be given back to the community) and the BSD model (take all our stuff, change it as much as you like, keep it to yourself, just make sure that somewhere – like in the small print at the end of an appendix no-one will ever read, you give us an attribution). To me the former makes more sense, as then errors/enhancements can be picked up by other people whilst retaining the need to customise material for your own requirements

    1. Yes, you’re dead right that GPL vs BSD is the clearer direct parallel for CC:BY vs CC:BY-NC-SA. But Stallman is very hardline and principled about Linux distributions that also include not-(entirely-)free stuff, including proprietary drivers. My view is that without those extra drivers, free software would be much less widely used and (not unrelatedly) much less good because fewer people would be contributed. Of course, Stallman’s retort would be that the stuff that’s available so widely isn’t (fully) free software, and that packaging non-free stuff with Free stuff blurs the distinction that users must learn.

      And it’s that pragmatic/principled split that I think is the philosophical difference between the CC:BY camp and the CC:BY-SA-NC.

      1. Interesting article.

        There’s also another point: everyone (even Stallman) will use a much more permissive license for something they wish to become a standard or used for inter-operability, either the BSD license or the LGPL. These do allow commercial use, but even Stallman considers making glibc LGPL rather than GPL necessary.

        No single license works, even for one person, all of the time.

      1. Yeah. Educators think “o noez big corporation can exploit me!” But that stops someone in a small country running copies off as well. Also, something that’s technically a nonprofit can sodomise your own nonprofit business just as much as a big corporation could.

        (Though in practice, the small country thing tends to be in places that consider copyright a minor nuisance best ignored if they even think about it.)

        “Wikipedia uses CC by-sa and doesn’t accept -nc, and we’re doing OK” is a good argument, we’ve found.

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