ShareAlike, the Public Domain, and Privileging

There have been a number of comments on my recent post about license compatibility problems. I want to address two specific, related comments…

Stephen said:

The fundamental dilemma, in my view, is that some uses of a work essentially destroy the openness of the work.

And then Bill said:

The idea of copyleft/SA is not to restrict those who would remix in good faith, but to prevent profit-taking landgrabbers from removing things from the commons.

First, let’s be clear that there is nothing anyone can do to remove a public domain work from the commons. Period. Even though Penguin Classics prints and sells copies of The Adventures of Huckleberry Finn, it will always be part of the public domain, and will continue to be available from places like Project Gutenberg. There is nothing that Penguin, Disney, or anyone else can do to move Huck Finn or any other verbatim public domain resource out of the commons.

Second, let’s also be clear that derivative works of public domain resources can be fully copyrighted, can be placed in the public domain, or can be licensed GFDL, CC, or any other license. Disney movies (which are fully copyrighted) based on stories (in the public domain) are an example. So, while there is nothing anyone can do to move a work out of the public domain, derivative works based on the public domain can certainly be copyrighted.

By contrast, ShareAlike (or copyleft) keeps derivative works in the commons by mandating which license they must be licensed with. This was the topic of my previous post.

So the discussion of copyleft approaches versus public domain approaches comes down to a simple question: do we choose to privilege people, or do we chose to privilege content? In the copyleft model, we privilege content (we guarantee it stays in the commons) at the cost of author freedom (to choose which license to use). In the public domain model, we privilege authors (we guarantee their freedom to choose which license to use) at the risk that some derivative works may leave the commons (be copyrighted).

So should we privilege people or content? For me, this is a very simple question. Content is simply a means to the end of supporting people’s learning. Content is never the end in itself. The idea that we might privilege content over people is frightening to me. As educators, people should always be the first, most important focus of everything we do.

More importantly, in the context of current realities where most of the open educational resources in the world are being produced by the so-called “developed world,” the copyleft requirement is even more sinister. With copyleft we once again find the “developed world” mandating solutions for the “developing world” (‘if you adapt our open educational resources for use in your country, you are required to license them the way we tell you to.’)

So… a few days ago I outlined the problems with copyleft / share-alike around license incompatibility in which GFDL and CC materials cannot be remixed, and most CC materials cannot be remixed with each other. Today I have argued that copyleft privileges content above people – and is especially problematic in the way it imposes “developed world” solutions on “developing world” users without flexibility or sensitivity to local needs.

Perhaps it is time for us to seriously discuss whether or not copyleft is good for the open education community?

Comments on this entry are closed.

  • http://www.chrislott.org/ Chris L

    There is a significant difference between “essentially” destroying the openness of a work and legally doing so. I’m sure Stephen is aware that you can’t remove something from the public domain. Intuitively and philosophically I think I agree with Stephen about this, but for the life of me I can’t come up with a good working example.

  • http://www.downes.ca Stephen Downes

    > There is a significant difference between “essentially� destroying the openness of a work and legally doing so.

    In my talk in Utah in 2004 I listed a whole series of examples describing how this is done. Commercial content providers have all sorts of ways of blocking access to free content when a commercial version of that same content is available.

    One simple example, to make the point. David writes, “The Adventures of Huckleberry Finn… will always be part of the public domain, and will continue to be available from places like Project Gutenberg.”

    Quite so. But with advertising dominating the Google listings, the commercial versions of Huck Finn will be all you find in the search. Should you find the URL, with net neutrality now history, the free copy of Huck Finn will take ages to download, if it’s accessible at all, while the ebook will take a couple of seconds. If you decide to copy it, you will have to break DRM in order to do so, since we now have trusted computing built into the computer chip – except, of course, it is against the DMCA to break DRM. Finally, our ISP, in order to comply with copyright enforcement legislation, will arbitrarily remove all ‘book’ files from users accounts (while Vista will remove them from their computers) just as some ISPs now remove MP3s.

    Things can be in the ‘public domain’ but still be inaccessible.

  • http://www.wikieducator.org Wayne Mackintosh

    Hi David,

    I’ve been wanting to leave a reply to your original post – but have been snowed under these past few days ..:-(

    It’s great to see this debate widening in educational circles!

    The distinction between respecting the freedoms of the content or freedoms of people (future users of free content) is an important distinction. However, its not clear cut –

    The folk that create copyleft resources are also people and our democratic values should respect the people who feel that its important to entrench the viral nature of the copyleft movement.

    Not a value judgement from my side – because at a personal level I have a preference for licensing alternatives that do not impose restrictions like SA. That said, attribution is also a restriction.

    While PD in terms of the freedom doctrine would be an attractive choice, there are two interesting problems. First, PD is not a license – but a declaration and secondly the PD is treated differently in various legal jurisdictions. So its not an ideal world.

    As an avid freedom advocate, I’ve learned to accept that there are both liberals and conservatives on the free content side of the fence. I don’t think this is a bad thing – as long as the choice of license meets the requirements of the free cultural works definition. In this way we provide opportunities for respecting the freedom of people . Both the creators and future users of content — depending on whether you’re a liberal or conservative.

    When setting up WikiEducator – the CC-BY-SA license decision was pragmatic rather than ideological. We made a call that it would be easier to “sell” CC-BY-SA to a conservative education community when compared to other options with fewer restrictions. When we took this decision – the majority of OER projects in higher education were using non-free content licenses!.

    As a democratic community there are healthy discussions in the community to consider dual-licensing – not a trivial issue but we are doing our best to find ways to respect the views of both the liberals and conservatives.

    Chat to you soon.
    Wayne

  • Seth

    Stephen says:

    “But with advertising dominating the Google listings, the commercial versions of Huck Finn will be all you find in the search. Should you find the URL, with net neutrality now history, the free copy of Huck Finn will take ages to download, if it’s accessible at all, while the ebook will take a couple of seconds. If you decide to copy it, you will have to break DRM in order to do so, since we now have trusted computing built into the computer chip – except, of course, it is against the DMCA to break DRM. Finally, our ISP, in order to comply with copyright enforcement legislation, will arbitrarily remove all ‘book’ files from users accounts (while Vista will remove them from their computers) just as some ISPs now remove MP3s.”

    The above is a good argument for net neutrality and reasonable (or no DRM), but not for SA. Licensing is too blunt of an instrument to be used to prevent all copyright woes. A successful copyleft license must be supported by a network of laws that are conducive to open content, rather than having the license do all the heavy lifting. Most don’t want to hear that, they would rather believe that a carefully crafted license page on their website will solve copyright problems.

    Also, David, in the previous post you alluded to possible changes to your USU OCW courses. I’m curious what implications this has for code produced. Because GPL requires a SA clause(that’s a simplification) does that make it less than ideal compared to, say, a BSD license?

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  • http://www.chrislott.org/ Chris L

    I’ll have to go listen to the 2004 talk, if it is available, to comment further. I’m not sure that the level of copyright is the right level to address the issue of the commercial availability drowning out the free distributions… it’s vexing if only because I think the problem of net neutrality is a much bigger issue with the potential to address the problem of free content along with some other grievous ills.

  • http://www.chrislott.org/ Chris L

    Seth writes: “they would rather believe that a carefully crafted license page on their website will solve copyright problems”

    A license may not solve “all” issues, but it seems like it does solve a significant number of problems including those which Stephen points to. I agree that there is a larger issue here regarding network traffic, commerce, and social networks that should not be obscured. But let’s look at this in the light of specifics. Given Stephen’s example, if the SA clause had been around and used for Huckleberry Finn, would any of the problems he cites remain?

  • http://michaelbernstein.com Michael R. Bernstein

    “So, while there is nothing anyone can do to move a work out of the public domain, derivative works based on the public domain can certainly be copyrighted.”

    Pick up just about any commercially available copy of a public-domain book and check to see if it has a copyright notice. Odds are that it does, despite there being no difference in the supposedly ‘copyrighted’ content, beyond merely mechanical transformations such as typography and layout.

    Works do not have to be ‘moved out of the public domain’ to diminish the commons if they can be ‘fenced off’ to achieve the same ends. Similar stories can be told regarding visual and audible media, though the details are more involved. Note the difficulties that the Gutenberg project has had at times in locating enencumbered (ie. pre 1923) copies of books to digitize.

    copyleft licenses combat this via a ‘triumph of the commons’ effect by ensuring that no part of the commons can be fenced off.

  • http://www2.uiah.fi/~tleinone/ Teemu

    But isn’t “share alike” (copyleft) also protecting the rights of the original author? If Penguin is interested in to do something with my piece of work, which I already have published online under copyleft license, they are free to contact me and make a business proposal for me. I am free to license my work for them under some other license. Right?

    From the perspective of those people who are only now entering to the global media market the “share alike” is definitely a better choice than giving your pieces away in public domain.

    I think jazz-rock-pop is a good example. In West all “rhythms” in “rhythm music” are traditionally considered to be “public domain”. To make sure that the creators of the beats will never get a penny we Europeans decided that in the case of music you get copyright only to the melody. We are so clever.

    This is why I never propose people to give their work away under public domain, but rather to license it under copyleft license. Copyleft makes it possible for other people to cultivate your piece and same time protects your rights to the original piece. Make me an offer.

  • http://www2.uiah.fi/~tleinone/ Teemu

    Sorry for spamming, but can’t help to continue the following:

    David wrote: In the copyleft model, we privilege content (we guarantee it stays in the commons) at the cost of author freedom (to choose which license to use). In the public domain model, we privilege authors (we guarantee their freedom to choose which license to use) at the risk that some derivative works may leave the commons (be copyrighted).

    The real questions here should be in which case we privilege the “learner”?

    So should we privilege (1) content, (2) current authors, or the (3) future authors (learners)?

    When we privilege content the way you see it happening with the copyleft model, we also privilege learners – the future authors.

    David wrote: “Content is simply a means to the end of supporting people’s learning. Content is never the end in itself. The idea that we might privilege content over people is frightening to me. As educators, people should always be the first, most important focus of everything we do.”

    In learning content should be the means but even more the end. We should educate future authors and not consumers of content. So when you privilege content the way “copyleft” does it, you also privilege people – not necessary that much the current authors but the future authors, you students.

  • http://tarmo.fi Tarmo Toikkanen

    While we wait for copyright law to change (just wait for it), we need licenses to ensure that freedoms are granted and preserved. It would be great to have a license saying “This work is covered by license X, giving you these rights (…) and allowing you to publish derived works using *any* free licenses (list available here) of your choosing.” However, this would not fully solve the issue that those derived works would then continue to evolve under a license that will not allow reuse under other licenses. It’s a bit of a legal cul-de-sac, with no way out. Except when copyright law is upgraded to the information age and the licenses become less critical. Maybe.

  • Philipp Schmidt

    David says:

    >> So the discussion of copyleft approaches versus public domain approaches comes down to a simple question: do we choose to privilege people, or do we chose to privilege content? >Perhaps it is time for us to seriously discuss whether or not copyleft is good for the open education community?

  • http://bokaap.net Philipp Schmidt

    Ooops .. formatting problems. Second try:

    David says:

    “So the discussion of copyleft approaches versus public domain approaches comes down to a simple question: do we choose to privilege people, or do we chose to privilege content?”

    The distinction is not between people or content, but between individuals and society. The Share Alike option privileges society – it is a mechanism that is designed to make more content available to more people now, and in the future.

    This extends to the developing world, where the concept of shared ownership is nothing new (or western, or imposed) at all.

    What is imposing developed world standards on developing countries is the Non Commercial clause. We do not have the infrastructure needed to distribute free and open electronic content to everyone, which means printing and selling copies might be the only option. The NC option prevents this.

    “Perhaps it is time for us to seriously discuss whether or not copyleft is good for the open education community?”

    I hope we will rather focus on explaining that the NC option creates more problems than it solves. On this note, I think it is fantastic that WikiEducator has chosen a BY-SA license and hope that others will follow this example.