Why Not CC By?

This has been the primary question asked by people providing feedback on the OEL draft. Below I provide a four point response.

First, the OEL is not meant to be “the license” that replaces all other licenses. It is meant to push the edge of the current licensing continuum out further for people who want to be more open than popular licenses allow. Current licenses listed from most restrictive to least restrictive would be: CC By-NC-ND, CC By-NC-SA, CC-By-ND, CC By-NC, CC By-SA, GFDL, CC By, (OEL goes here). The OEL is meant to push the right side of this list further out for the people who see problems with existing licenses, want a license that imposes no restrictions, and is internationally viable. I’ve already written at length about why the Public Domain is impossible to put at the end of this list. If CC By is as open as you’re comfortable being, then the answer to the question “Why not CC By?” is “Just use CC By.”

Second, there is a major mechanical problem with the way CC By is used by people. The Attribution requirement of all CC licenses, including CC By, states “You must attribute the work in the manner specified by the author or licensor.” Now, I ask you – have you ever seen a page with a CC license that specifies how the work should be attributed? USU OCW and all other eduCommons using schools include citation instructions at the bottom of every page (example), as does Connexions (example), but these are literally the only sites I am aware of that do. So for those 40 million resources in the world that use a CC license, I would estimate that 99.some percent of them make it impossible for you to comply with their own license, because they do not provide you with citation instructions as their own license requires them to. A more devious / damning – and completely plausible – way of looking at these 39 million some resources is: (1) the license says I have to attribute as specified by the author, (2) the author doesn’t specify, so (3) I don’t have to attribute. (I contacted CC about this problem a year ago and suggested a series of easy to use Attribution plugins (a default and several other standard citation forms) to fix this problem, but there was no follow-up from the student at the Berkman Center I was referred to, and the idea is still just floating out there. This could be fixed rather easily if anyone really thought it was a problem.)

Third, in the preface to the draft I described a family of scenarios in which the requirement for Attribution is effectively a form of discrimination against people and groups of people. Many readers responded by saying something along the lines of “people who can’t get along with others just need to get over it.” This seems like an extraordinarily naive response. For example, let’s consider the realm of Chinese language open educational resources, which are much more scarce than English OERs. Imagine that the National Taiwan University were to release some open content with an Attribution requirement, specified as follows:

This material was originally create by the National Taiwan University, located in the legitimate and independent Republic of China.

With this attribution requirement, we can imagine it being impossible for Chinese state-run universities to use these materials because of the requirement to refer to the ROC as legitimate and independent. There are an almost infinite number of perfectly plausible examples like this, in which political and other messages could be embedded in Attribution requirements, in which the requirement would effectively discriminate against a person or group of persons. There are a number of other examples in which simple cross-group hatred would turn the attribution requirement into an instrument of discrimination. One of my good friends (he knows who he is) will remind me that these examples are all hypothetical today. But that doesn’t mean that we shouldn’t begin architecting contingencies today.

Fourth and finally, in the context of open education we don’t need an attribution requirement embedded in the license. We have a citation culture. We also have anti-plagiarism policies embedded in our institutions and an anti-plagiarism ethic spread throughout academia generally. And yes, plagiarism is grounds for civil law suits when it comes down to it. Think of Bacon, Shakespeare, Twain, and others whose writings are in the public domain. Do we fail to cite them appropriately since there is no legal requirement for us to do so? Do we plagiarize them because they’re dead and there are no heirs left to chase us down? No. Attribution is a social norm in the academy (as well as a matter of policy), and we can depend on this social norm and existing policies to encourage proper citation. We don’t need to create a legal Trojan Horse by which we can force political and other statements onto people as a matter of “attribution.”

So, while I am arguing that there are a number of very real problems with the Attribution requirement itself and the way it is used incorrectly by the overwhelming majority of its adopters, I am not arguing that we should do away with it. We need to realize that no license will be perfect (the OEL included), and that there is a great value in having easy to use open content licenses that cover a spectrum of restrictions (from many to none).

Comments on this entry are closed.

  • This post goes a long way to explain the genesis of the OEL. However, significant questions linger.

    First, the OEL is not meant to be “the licenseâ€? that replaces all other licenses…: CC By-NC-ND, CC By-NC-SA, CC-By-ND, CC By-NC, CC By-SA, GFDL, CC By, (OEL goes here)… Public Domain is impossible to put at the end of this list.

    The U.S.-centric nature of Creative Commons has long been a problem, and this is most clearly evidenced by its attitude toward public domain. So I accept the idea that there needs to be a license to the right of the list.

    But why is it called the Open Educational License? Why not just call it the ‘Open License’. Or ‘CC-Open’ Or some such thing that does not tell readers that educational content is Open for Business?

    Second, there is a major mechanical problem with the way CC By is used by people. The Attribution requirement of all CC licenses, including CC By, states “You must attribute the work in the manner specified by the author or licensor.�

    This problem is generated by an equivocation on the word ‘specified’.

    I ‘specify’ my attribution on every page of my site. At the bottom where I say ‘Copyright 2007 Stephen Downes’. The attribution to me would be as I have specified it, ‘Stephen Downes’.

    But of course you are interpreting the word ‘specified’ to mean ‘citation instructions’. What good grounds are there for this interpretation? Especially given that 99 percent of CC-By resources do not provide ‘instructions’.

    This problem is the sort that doesn’t exist until a lawyer finds it. It is a case of using the letter of the license to act against the spirit of the license. This is far too common in the world of law and licenses. It is certainly not a problem specific to CC-By.

    Third, in the preface to the draft I described a family of scenarios in which the requirement for Attribution is effectively a form of discrimination against people and groups of people.

    Of course, as you say, “political and other messages could be embedded in Attribution requirements.” I would even go so far as to suggest that political and other messages might be embedded in the content itself! But I digress.

    If the requirement of posting content is to post a message contrary to your own interests, then don’t post it. It seems farfetched to expect that the creation of another license will change the intent – and the tactics – of organizations intending to put political messages into their licenses.

    Fourth and finally, in the context of open education we don’t need an attribution requirement embedded in the license. We have a citation culture… Attribution is a social norm in the academy (as well as a matter of policy), and we can depend on this social norm and existing policies to encourage proper citation.

    That’s a noble sentiment but demonstrably false.

    The sentiment requires the isolation of an academic culture from the wider, more commercial, culture that surrounds it. But in the internet era, these cultures are thoroughly mixed. Academic content is considered fair game by people poised to copy – with or without attribution – for commercial profit in exclusive markets.

    Moreover, if attribution is the norm in the academy, then posting a requirement that use of my work be attributed is, in fact, the norm. It should not change any academic use of my work.

    And again I iterate that the only people harmed by CC-NC-By are commercial exploiters who seek to cordon off the market foracademic content as their own and to systematically loot it for their own benefit and at the expense of people who most need free – and noncommercial – content.

  • but the Taiwan/China attribution example is a bit contrived – if the NTU decided to use such an obviously political message in something as benign as a copyright attribution message, imagine the political overtones embedded in the actual content. It’s unlikely that such “propaganda” would be used by Chinese state-run institutions anyway. A more open license doesn’t change the nature of the content.

    And I also disagree with Stephen about the NC clause. From personal experience, I have had dozens of photographs used by “commercial exploiters” – small-time book publishers, tour guide producers, game creators, magazine publishers, etc… None of which would have been possible without my explicit avoidance of the NC clause. All of which are more than welcome uses of my content – that’s why it’s out there in the first place. NC is too restrictive. Sure, it’s conceivable that Some Evil Corporation might take my works and do stuff with them. It’s more likely that a bunch of small groups that fall in the grey zone of “commercial entity” will be able to do cool stuff with it.

  • The responses of Stephen and D’Arcy represent the fact that different licenses suit different people which is why it is nice to have a variety of licenses available to content creators. In my case CC-By fits, but thanks to your insights I will be sure to make the attribution specification clear.

  • Good job Dave,

    From this post and the comments I can see this:

    Your license IS needed, and beyond educational sectors – so the suggestion from SD is OL instead of OEL.

    If CC added a field in their publishing web service, then this would fix the most significant problem you point out with CC BY.

    Personally I don’t consider the political and cultural issues you identify with CC BY as significant either.

    It would be great if you can find a way into CC.org and progress your suggestion that was neglected by them and add a new field for specified attribution. At the same time as fixing CC BY you could fix the PD regional limitations by introducing OL instead of OEL. I think dropping the education specific is a good suggestion.

    I do think it would be worth trying to work with CC.org as clearly it is well established.

    Good job Dave, and many thanks.

  • Pingback: Wide Open Education » Debate on open licenses…()

  • Okay, you’ve convinced me. I think this shows promise as a complement to public domain dedication. I agree that you should eliminate the “education” reference though. It has much wider potential application than that.

  • I tend to agree with Stephen and D’Arcy. However, the NTU example as contrived as it might be, highlights an important aspect of this conversation: citations and attributions are political. The act of citing and attributing is a political act that either (and both) subverts and supports whatever hegemonic forces are active in the academy (as a starting point), and in the wider discursive environment. By requiring NC, for example, I am not necessarily precluding commercial uses, merely commercial uses without an additional conversation. That speaks to my particular economic views. By adding SA, I am making a specific political statement about my views and approaches to normative behaviours with respect to knowledge.

    Part of the underlying theory and philosophy of adult education, which is the primary discourse in which I currently reside, speaks to making the political explicit through the processes of education and collaborative knowledge construction. A critical conversation about the selection of one’s license in the context of one’s courseware contributes to this explication, I think.

  • Re: 1: With the public domain, can someone explain why a public domain dedication is invalid in jurisdictions outside the U.S.? I presume there are statutes or common law that state an author cannot add his/her work to the public domain. (If so, I would recommend to those jurisdictions to change those laws, and justify why an individual should not be able to waive his/her copyright if s/he wishes.) But leaving aside the legal meaning of “public domain”, what does it mean practically? It means any user is free to do anything s/he likes with the work, with no restrictions or responsibilities. If an author does not enforce his/her copyright, and indicates to readers that “You are free to do anything you like with this, I won’t stop you, no royalties required, permission is granted” — how is that invalid? Is the concern that the license would be revocable? If so, are CC licenses revocable in those jurisdictions (I know the license says it’s not, but that part of the contract might not be valid.)

    Now, what I’ve just described is effectively the OEL described here. You might say it’s the BSD of content licenses: do what you want, no requirements. But in fact, the BSD license has 2 conditions the OEL doesn’t:

    1. You must include the copyright notice in uses of the work. This lets downstream users know what rights they have.

    2. You cannot imply the endorsement of the author of whatever your later use is.

    I didn’t notice either condition in the draft OEL; neither did I see any discussion in the post. Were they purposefully excluded, or unintentionally? If purposeful, why; if unintentional, what’s your reaction? (FWIW, both provisions also appear in the standard CC licenses.)

    Let me echo the comment that there’s nothing education-specific about this draft license. It’s a more-permissive option than CC by, equivalent in practice to the public domain (if it doesn’t include the BSD requirements); with the BSD requirements, it’s less permissive than the public domain, but more so than CC by.

    Re: 2: I think this clause actually lets you accomplish what you want. Let me suggest that users of CC by can waive the requirement to attribution. Since the author gets to specify how to be attributed, the author can say, “I waive the right to attribution.” This would achieve the same effect as OEL license + BSD clauses.

    Re: 3: This presumes that the attribution requirement only benefits the author, and only hinders the re-user. I don’t think that’s a full view of the situation. I think the attribution requirement actually benefits downstream users. For instance, it helps contexualize the work: You know who wrote it. That’s worth a lot. It also protects a downstream user against accidental plagiarism: you want to be able to cite the real author. Additionally, often it’s useful to know who authored a work, because the reader wants to go see what else they’ve done. Maybe the author has produced other works that would be of use to the user. I see this restriction as benefiting the user in ways as significant as it benefits the author. The BSD restrictions are similarly valuable to the user, not just the author.

    Re: 4: As another commented, this assumes academics will be the only users of this license. This won’t be the case — especially if it’s a general purpose, rather than education-specific, license. Even if it was just education, there’s no reason why a user outside academia couldn’t appropriate this content for whatever purpose: a book, a magazine, whatever. Maybe this use, without attribution, is desirable; maybe not. But it will happen. To suggest it won’t, I think, is incorrect.

    A general comment on the OEL: Any re-use of content under this license with content under another license would cause the resulting work to be licensed under the other license. Even mixing with a CC by work would mean the derivative has to be licensed CC by. I think this is notable, and nobody seems to have mentioned this previously, at least explicitly. If the OEL used the BSD requirements,

    w/r/t my reaction of the proposal: Stephen hit most of my response from this and the earlier post.

    I’d add, though, a suggestion to use a clearer, if less catchy, name for the “4 R’s” — the current names make the reader to try to figure out what the author means. Something like “Use and Reuse”, “Modification”, “Combination”, and “Redistribution” seems a lot more useful at face value.

    I’ll reserve judgment on whether such a license is desirable. I do have concerns about license proliferation, particularly since I think so few people would want to license their content this way (few enough that they can be accommodated to use Attribution + waiver as described above). After all, CC added the attribution requirement to each license in 2.0 because close to 100% of license users picked a license that included at least attribution. (There is a confounding variable here: To choose a license without attribution, other than the public domain dedication, you’d have to choose a license with NC, ND, or SA as restrictions. Perhaps users chose attribution because it was the most permissive of the options available, other than the PD dedication. Or perhaps users strongly value attribution.) I also have concerns that attribution and the BSD clauses include important protections for users, not just authors. But I’m not convinced one way or another.

    I’d be curious what CC itself would think about it. I don’t think they would reject out of hand adding such a license (particularly if it includes the BSD requirements — if not, it’s functionally PD, and they might just tell you to use the PD dedication or ‘roll your own’ as I suggested above).

    One comment, the content of this license seems in line with what some people are looking for in a database “license”. I use “license” in scare quotes because it’s unclear exactly what, if any, right exists to license in jurisdictions without database protection, i.e. pretty much everywhere outside the E.U. There is, of course, your general EULA / terms of service policy / non-negotiated contract (e.g. click-through), about which there are some questions of validity. But even given that no right really exists outside the E.U., and general terms of use contracts are on questionable ground, there still might be some value in a clear and standardized way to let users know what rights they have and what responsibilities, if any. I would suggest that for databases, use, modification, and combination not come with any responsibilities, i.e. there are no restrictions on those activities. Verbatim redistribution in entirety should come with the BSD restrictions, and arguably attribution. Verbatim redistribution of portions, or redistribution of modified or combined works, I’m not sure about. But I think this provides a useful framework for thinking about databases, where the traditional metaphors of remix, etc. don’t work as well, and where you can’t start with an assumption of the rights of copyright. A lot more discussion is needed in this area, I think.

  • I’m waiting on my earlier comment to appear, but a quick note:

    w/r/t the attribution procedures in the CC licenses, if you view the legal code, you’ll see the procedure is more defined than “attribute in the manner specified by the creator”. In particular, it enlightens your concern about “the author didn’t say how to attribute, so I don’t have to attribute”:

    …You must … keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing:

    (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or
    (ii) if the Original Author and/or Licensor designate another party or parties (e.g. a sponsor institute, publishing entity, journal) for attribution (“Attribution Parties”) in Licensor’s copyright notice, terms of service or by other reasonable means, the name of such party or parties;

    the title of the Work if supplied;

    to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work;

    and, consistent with Section 3(b) in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., “French translation of the Work by Original Author,” or “Screenplay based on original Work by Original Author”).

    The credit required by this Section 4(b) may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear, if a credit for all contributing authors of the Derivative Work or Collective Work appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors.

    The catch will be in the term “if supplied”. If a page has an author’s name somewhere on it, has the name been “supplied” — or does it have to be part of the copyright notice itself? I don’t know, but anyway, that’s the actual language.