Recently, I’ve been thinking a lot about license compatibility issues. Specifically, I’ve been wondering how I can communicate to people the difficulty copyleft causes for would-be remixers. Until you get knee-deep in it, you can’t really understand the pain. And how many people ever really get knee-deep in it?

So I wondered… how can I bring that pain to the common man? And in addition to “bringing the pain,” how can I effectively educate them about licensing compatibility issues and instruct them in the art of creating legal remixes?

My first attempt at an answer is OER Remix :: The Game. As I once read in the award statement for the 1st Annual Obfuscated Perl Contest Best of Show award in 1997, OER Remix :: The Game “takes special pains to cause special pain.”

I hope you find an opportunity to play it with a class, in a workshop, or with someone you love this New Year. Keep in mind that the card designs and rule sets are “early alpha” at this point, so your feedback will definitely be used and will be sincerely appreciated.

Happy New Year, everyone!

However, it seems that – deep down – some people don’t really value the public domain. When given the option of placing works in the public domain early (ahead of when their copyright would expire), they will instead say:

The public domain lets people make and commercialize derivative works which aren’t placed back in the public domain. This is bad. Therefore, we should instead be glad of long copyrights and copyleft our works for the full term of copyright instead of placing them in the public domain. We need to protect our works from commercialization by others by keeping them out of the public domain as long as possible.

The copyleft mentality exemplified in the snippet above is already showing up in responses to the Open Education License draft. I never thought I would say this, but: The best thing about copyright expiring may be that copyleft will expire, too. I’m reminded of Lessig’s comments:

We are where we are because most people don’t believe in the public domain. Most people don’t even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.

Because left and right are opposites, it is easy to fall into the trap of thinking that copyleft is the opposite of copyright. It is not. Copyleft is a kind of copyright that prevents people from exercising certain rights with regard to content. The public domain is the opposite of copyright. If you have any question about how valuable the public domain is, please read Pollock’s excellent The Value of the Public Domain.

The critical importance of the public domain is one reason for the new Open Education License draft. Why not simply create a mechanism for putting works in the public domain? Again, quoting Lessig:

We have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn’t like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain. We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there’s no way to be certain about this. But this is our best guess, given the murky state of the law.

The first draft of the OEL granted licensees all the rights they would enjoy if the copyright on a work had expired – it was a license that operationally put a work in the public domain. However, it turned out that this approach would not work in the EU legal context, and so we arrived at a draft that grants licensees all the rights for which they would need a license under current, applicable law. I think this is as close to the public domain as we can come using a simple, internationally viable licensing mechanism.

Others will continue to think that noncommercial and copyleft restrictions are necessary, and I won’t argue with them. Licensing should be a matter of personal choice (another reason I don’t like copyleft). I continue to believe, however, that as people become familiar with the idea of openness many will follow a “path of enlightenment” that begins with something like CC By-NC-ND, advances to BY-NC-SA, evolves to BY-SA, then to By, and eventually arrives at the OEL.

In an attempt to clarify copyright confusion around open educational resources, and to assist open educational projects make better choices in copyright licenses, the Free Cultural Works Definition may be useful:

This document (within a wiki) defines “Free Cultural Works” as works or expressions which can be freely studied, applied, copied and/or modified, by anyone, for any purpose. It also describes certain permissible restrictions that respect or protect these essential freedoms. The definition distinguishes between free works, and free licenses which can be used to legally protect the status of a free work. The definition itself is not a license; it is a tool to determine whether a work or license should be considered “free.”

However, licenses such as Share Alike (SA) and GNU Free Documentation License (FDL) are included in this definition and they both contain restrictions that do not allow someone to freely modify and redistribute a modified work without agreeing to utilise the same or compatible license on the derivative. It is possible to use multiple licenses on a work that is made up of combined documents, but impractical or impossible in the case of modifications and derivatives. The Definition of Free Cultural Works tends to be contradictory and possibly misleading in its acceptance of Share Alike and Free Documentation License restrictions. For example, terminology such as, …free licenses which can be used to legally protect the status of a free work. is misleading because mechanisms within the SA or FDL (commonly referred to as copyleft) do not protect the freedoms of the original work as much as they ensure and promote the re-usability of a derivative work, and so the terminology might be more accurate if it was, …licenses that restrict reuse so as to ensure the same or compatible licenses are assigned to derivative works where the notion of “freedom” is more squarely aimed at the derivative work that is yet to be licensed, and not on the original work that is already free by virtue of its Attribution license without the Share Alike.

Considering the purpose of an open educational resource, it should be enough to say that the license used is one in which attribution to original authors is all that is required in its reuse. This is a practice that should be familiar and comfortable to educational institutions, and it is a license that maintains maximum re-usability and flexibility in an original resource. It makes little sense to apply any further restrictions such as Non Commercial, Share Alike or even FDL to an open educational resource that is intended to be available for remix, modification and redistribution in as wider educational context as possible. Furthermore, for the purposes of this article and to generate interest and discussion, a superficial analysis of statistics in the use of Creative Commons licenses – particularly comparing the growth in use of the Attribution license compared to the Share Alike license shows an increase in the number of Attribution only resources comparable to Share Alike. This might suggest strong motivating factors in the use of free licensing such as Attribution that should be looked at more closely. Perhaps the belief in a cultural commons is growing regardless of detailed copyleft legal mechanisms, and/or perhaps attribution is a stronger currency in the exchange of intellectual property than the various legal mechanisms designed to govern it. It is a research project in its own right, but for this article it is enough to suggest that copyleft legal mechanisms may not be the strongest element in the growth to free cultural works, particularly open educational resources.

It’s good to know I’m not “a voice of one crying in the wilderness.”

Free content, for the Wikieducator community, refers to the liberty to adapt, modify and use content without restrictions.

However, because the free content promoters are also strong promoters of copyleft licenses, there is a clear restriction placed on a person’s liberty to adapt and modify free content – they do not have the right to choose how to license the adapted or modified work.

Thinking more about copyleft generally (and not about this site in particular), it made me wonder – is this mindset a simple “the last thing a fish would ever notice is water” problem? The copyleft crowd are obviously super sharp and very thoughtful… How is it, then, that they can promote copyleft and simultaneously claim that free content has no restrictions placed on it? The CC-By-SA license chosen in this particular case also restricts use unless you’re willing to attribute the authors.

So, when a free content promoter says “you can use, reuse, and remix free content without any restrictions,” what they really mean is, “without any restrictions that we are ideologically opposed to.” They are, of course, perfectly within their rights to choose whatever license they like for their content (unless they’re making a derivative of a copyleft work), so this isn’t a criticism of their choice of license. We just want to be clear that the only case in which there are no restrictions placed on a person’s abilities to use, reuse, and remix is when a work has been placed in the public domain.