Over the last 24 hours there’s been a short Twitter thread about whether or not materials released under a CC license with the NC condition can be used in a college classroom safely.

The standard answer here, is “Of course! Using NC-licensed material in a college classroom is totally safe!” The problem is, that answer is wrong.

There’s only one person whose interpretation of NC matters, and it’s not yours. And it’s not mine. And it’s not Creative Commons. It’s the LICENSOR whose opinion counts. If that person looks at your use of their material and believes it violates the NC condition, then things start to happen.

If the licensor believes your use violates the NC condition, they are the person who will send you an informal letter politely asking you to stop. They’re the person who will direct a lawyer to send you a formal cease and desist letter asking you to stop. They’re the person who will take you to court if you fail to comply with their wishes.

Now, you may be wondering, “would licensors ever actually think my use of their NC-licensed content in a university classroom constitutes a commercial use?” Actually, we have data on that.

Creative Commons conducted a large international study with funding from Andrew W. Mellon Foundation. The final report, titled Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” asks respondents to address this question specifically. Here I reproduce Figure 15 from the report (p. 62).

Figure 15: Ratings of Commercial Use by Creators and Users: Scenarios Related to Uses by Organization

As you can see in the second prompt up from the bottom, both users and creators put “Use for course materials by a tuition-based school” closer to “Definitely a Commercial Use” than they do to “Definitely a NONcommercial Use.” Quoting from the report (p. 63):

The only ratings for use by an organization that are seen as more noncommercial than commercial are specific to a use that suggests no money is exchanged: if a school that does not charge tuition uses a work in its course materials then both creators and users rate the use noncommercial, especially creators, although consensus for both groups is low. By contrast, if a school charges tuition then both groups increase their ratings, and creators do so significantly (from 33.5 to 56.3, as compared to a rise from 44.0 to 57.4 for users). Note that the profit status of the school was not specified in these two uses.

You may protest, “But those data are a decade old! That would never happen today!” But you’d be wrong. Here’s an example from just a few months back:

and

Conclusion

In summary, the answer to the question “Is it ok to use NC-licensed material in my university course?” is not “of course!” The answer is “What’s your level of risk tolerance?” How would you feel if, after going to the time and effort of redesigning your course around those NC-licensed materials, you received a letter from the licensor asking you to remove all those materials from your course? How much time, money, and effort are you (or your institution) willing to spend defending your use of NC-licensed materials in court? Et cetera. True, the odds of any of that happening are pretty low, but…

The most important thing to understand about reusing NC-licensed material is that it doesn’t matter what you or I think NC means. The only person whose opinion matters is the LICENSOR.

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This post is rather long. For the tl;dr, read the final two paragraphs.

Football as played in America is not the same sport as the football they play in the rest of the world. Actually, that is an oversimplification, as a wide range of very different games are called “football” around the world. (See Wikipedia for a list of its most common variations.) While these games share a common name, they are wildly different beyond some superficial similarities (they are all games played by teams of players who, to a greater or lesser degree, kick a ball in order to score points). Quite literally, the “fundamental rules of the game” are different.

The differences in rules between the many kinds of football have naturally led to the evolution of very different strategies for winning the different versions of the game. Can you imagine the result of applying strategies that have proven successful in American football to the game as it is played in Brazil? Or Australia? Think about this way: while they both play at the very highest level of their respective games, there is no world in which Lionel Messi and Tom Brady trade places and either finds any measure of success. It almost breaks my brain just thinking about it.

We have a similar problem in the open educational resources (OER) space. Many people are in the habit of referring to OER as a commons. However, beyond some superficial similarities (groups of people trying to sustain access to usable resources), the worlds of OER and the commons traditional studied by economists are completely different games. Not only are the “fundamental rules of the game” different, they are often quite literally the opposite of each other. The confusion caused by our lightly tossing around the undifferentiated word “commons” leads reasonable people to attempt to draw lessons out of the literature and scholarship of the (traditional) commons and apply those lessons to OER. Without significant adaptation, this is a mistake.

OER are not like the shared resources at the center of traditional commons. As I’ll discuss below, the rules of the game are very different – and so we should refer to this game as a different kind of commons (think “Australian Rules Football”). For the moment, I’ll put off discussing a name for this other commons and focus on the differences between the two. I drew out some of these differences in an earlier post. Let me revisit a few of them here in light of the football analogy.

The Traditional Commons Game

Rule 1: The easiest way to lose the Traditional Commons game is to allow your shared resources to be overused or overconsumed.

Rule 2: The next easiest way to lose the Traditional Commons game is to be dispossessed of your shared resources through enclosure.

If either of these conditions come to pass, everyone loses access to the shared resources and we all lose the game.

In other words, the “Traditional Commons Game” is primarily one in which a group of people come together and act according to shared norms, values, and protocols in order to (1) avoid ruining their shared resources through overuse and overconsumption and (2) ensure that they are not forcibly dispossessed of their shared resources through enclosure.

(While I will use the word “win” below to discuss the goals of commons games, this is just a more convenient shorthand for “not losing.” Commons games are never truly won – the goal of the game is to keep not losing.)

The playbook that has emerged over time for winning the Traditional Commons Game contains plays and strategies that are highly optimized for these rules. People (like Elinor Ostrom) know how to win this game.

A Different Commons Game

Rule 1: Openly licensed resources cannot be overused or overconsumed.

Rule 2: Openly licensed resources are not subject to enclosure.

The two primary ways to lose the Traditional Commons Game aren’t factors in this Different Commons Game. At all. If openly licensed resources can’t be overused or overconsumed and are not subject to enclosure, what are the main rules of the Different Commons Game?

Rule 3: The easiest way to lose the Different Commons Game is for the group to never create (or to under-produce) openly licensed resources.

Rule 4: The next easiest way to lose the Different Commons Game is for the group to never update the openly licensed resources.

If either of these conditions come to pass, there are (or will soon be) no usable resources and we all lose the game.

Can you see that the Different Commons Game is a very different game from the Traditional Commons Game? While they may share some superficial similarities (groups trying to sustain access to usable resources), there is very little reason to believe that the playbook developed to win the Traditional Commons Game will be all that helpful winning the Different Commons Game.

Ostrom’s 8

The best known playbook for winning the Traditional Commons Game is Ostrom’s eight design principles, first laid out in her 1990 book Governing the Commons: The Evolution of Institutions for Collective Action. Here I reproduce Table 3.1 from page 90.


 

Table 3.1. Design principles illustrated by long-enduring CPR institutions

1. Clearly defined boundaries
Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.

2. Congruence between appropriation and provision rules and local conditions
Appropriation rules restricting time, place, technology, and/or quality of resource units are related to local conditions and to provision rules requiring labor, material, and/or money.

3. Collective-choice arrangements
Most individuals affected by the operational rules can participate in modifying the operational rules.

4. Monitoring
Monitors, who actively audit CPR conditions and appropriate behavior, are accountable to the appropriators or are the appropriators.

5. Graduated sanctions
Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.

6. Conflict-resolution mechanisms
Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators of between appropriators and officials.

7. Minimal recognition of rights to organize
The rights of appropriators to devise their own institutions are not challenged by external governmental authorities.

8. Nested enterprises
Appropriate, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.


 

A cursory review of the principles immediately reveals a host of ways they fail to apply directly to the context of our different commons.

The very title makes clear that these principles are exhibited by groups successfully managing common pool resources (CPRs). However, OER are not CPRs. CPRs are subtractable (rivalrous), which makes them susceptible to problems of overuse. OER are public goods – meaning they are non-subtractable – which means they are not susceptible to problems of overuse. In other words, the primary problem this entire set of design principles is meant to solve doesn’t exist in the context of OER. I cannot stress this point enough, and will return to it below.

Principle 1 states that there must be clarity about who is and who is not allowed to withdraw resources from the common pool. This principle fails to apply to OER in multiple ways. First, because of the non-subtractable nature of OER you do not “withdraw” them from the pool – you make a perfect digital copy and leave the original in the pool for others to continue to access (consequently, there can be no overuse). Second, I believe most people in the OER movement have a desire to extend the benefits of education to all humankind, and therefore the idea of drawing boundaries around who is allowed access to OER would be an inversion of the goals of the movement.

We could go on. Suffice it to say that the different rules of the Different Commons Game lead to different strategies for winning. Don’t get me wrong – there are high-level lessons for us to learn from Ostrom’s eight design principles. But we can’t and shouldn’t expect to apply her eight principles as-is in this different commons context and have any more success than we would using the FC Barcelona playbook in the Super Bowl.

This is the reason why the same “patterns of commoning” that emerge in order to sustain traditional commons haven’t emerged in the context of OER. Those patterns have emerged specifically to counter the existential threats of overuse and enclosure, and it makes literally no sense to replicate those patterns of commoning in the context of OER – we don’t need to spend time and energy guarding against threats that don’t exist. Instead, we need to develop a better understanding of our different commons and evolve our own unique playbook for how to win our Different Commons Game.

Why does any of this matter? Who cares which football we’re playing? This whole line of inquiry is all preparation to ask the question, “How do we sustain OER-related work over the long term?” The first step to cracking this incredibly difficult problem is recognizing that we’re not trying to win the Super Bowl, we’re trying to win the World Cup. We’re not fighting cancer, we’re fighting heart disease. We’re not working in a traditional commons, we’re working in a very different commons. The correct diagnosis is generally the first step to finding an effective cure.

Or, as Ostrom wrote,

Models are used inappropriately when applied to the study of problematic situations that do not closely fit the assumptions of the model.

A “Constructed Cultural Commons”

Undoubtedly the best paper I’ve read on this topic – the significant degree to which the commons with OER at its center is different from traditional commons, and the significant degree to which we need to adapt traditional commons scholarship in order to make progress on problems of sustainability in our context – is Constructing Commons in the Cultural Environment by Madison, Frischmann, and Strandburg (2010). In this paper the authors name the kind of commons we are concerned with a “constructed cultural commons.” I believe the name is effective at highlighting some of the key differences between traditional commons and the kind those of us who work with OER are concerned with, so I’ll use it below (and in the future).

This paper makes several of the points I’ve made above much more eloquently (well, certainly at greater length, in more technical detail, and with more footnotes). A sampling:

[I]t is important to identify the particular problem or problems that a given commons is constructed to address. In the natural resource context, this question does not often come to the fore because common-pool resources are defined by the problem of subtractability or rivalrousness (e.g., removing lobsters from the pool results in fewer lobsters for everyone else) and the risk that a common-pool resource will be exhausted by uncoordinated self- interested activity (e.g., unmanaged harvesting may jeopardize the sustainability of the lobster population).

Intellectual commons address different problems, which are defined initially by the fact that, as public goods, intellectual resources are not rivalrously consumed. A copyrighted work or patented invention can be “used” simultaneously by many people while it is part of a commons without diminishing its availability for others….

The various problems that cultural commons institutions solve are not merely, or even primarily, problems of overuse. The problems addressed by cultural commons include the production of intellectual goods to be shared, the overcoming of transaction costs leading to bargaining breakdown among different actors interested in exploiting the intellectual resource, the production of commonly useful platforms for further creativity, and so forth. (p. 691)

Despite considerable variation and nuance, these activities all can be understood to present a simple core problem: as public goods, the “output” from these activities—whether described as information, expression, invention, innovation, research, ideas, or otherwise—is naturally nonrivalrous, meaning that consumption of the resource does not deplete the amount available to other users, and nonexcludable, meaning that knowledge resources are not naturally defined by boundaries that permit exclusion of users. (p. 666)

The “natural” information environment contains an abundance of raw information resources, including inherited and experienced knowledge. Those resources often become information “works” and, therefore, resources in the pool via some cultural construct, such as the default copyright or patent law systems, via some other institution, such as a publishing industry producing books, films, or songs, or via some combination of these and other things, such as cultural practices or norms. Understanding the construction of cultural commons therefore requires understanding the mechanisms by which resources are provisioned to the commons, whether via legal entitlements or otherwise, and the nature of entitlements to use and consume those resources while they are part of that commons. (p. 700)

Most importantly, unlike commons in the natural resource environment, cultural commons …  participants not only share existing resources but also engage in producing those resources. (p. 681)

Constructed cultural commons must be concerned not only with managing and sustaining existing resources but also with providing institutions to encourage the creation of new resources. (p. 687)

It is entirely possible and desirable for a community to produce and / or manage a cluster of cultural goods that is accessible to outsiders. One of the measures of the social benefit of a constructed cultural commons may be the degree to which it disseminates the intellectual goods it produces to a wider audience. (p. 695)

If you’re interested in understanding why our commons isn’t the commons you may have thought it was, this will be one of the best papers you’ve read in a very long time – particularly if you’re interested in reading an adaptation of Ostrom’s Institutional Analysis and Development framework to commons built around non-subtractable resources on which Ostrom herself provided feedback.

In general, if you want a better set of intellectual tools for thinking about how we should be approaching the sustainability of our work with OER, I highly encourage you to read it.

The tl;dr – OER are Public Goods

Perhaps the single most important and useful takeaway message here is that OER are not common pool resources. They’re public goods. Once you truly, deeply grok that difference, the differences between the traditional commons-based approaches and the different approaches that we need to employ start to become self-evident.

The game we’re playing doesn’t use the ball they use in American football. Or the ball they use in football in Brazil. Or the ball they use in Australia. Those balls are all minor variations on a common pool resource. We’re playing a totally different game with a non-subtractable ball. Imagine if every player in the World Cup could make a legal and perfect copy of the game ball and the players could all use these balls at the same time during the match. That’s how different the game that we’re playing is. We need a different playbook tailored to these different rules. To win the “how do we sustain OER over the long-term” game we need to find a collective action solution to a public goods problem – not rely on the traditional commons playbook.

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Maha has written a brief but powerful post about how people’s contributions can go unacknowledged. Even though it paints me in a fairly poor light, I recommend that you read it. Among other things, the post discusses her role in my decision to abandon the phrase “open pedagogy” and adopt the phrase “OER-enabled pedagogy.” And as I will explain below, it is totally and completely accurate to say that Maha played an important role in that decision.

You can see the evolution of my thinking on the topic reflected in my blog posts over the years. While the term “open pedagogy” appeared with some frequency on my blog for a number of years (Google site search link), I believe these posts show the important contours of how my thinking evolved:

  • What is Open Pedagogy (2013), where I first “introduce” (more on that below) and define the term
  • Evolving ‘Open Pedagogy’ (2014) extends the definition discussion by briefly meditating on the ubiquitous, smothering role of copyright in our lives
  • Open Pedagogy: The Important of Getting in the Air (2015) uses the driving an airplane down the road metaphor (which I believe I first heard Richard Culatta use?) to describe a situation in which something is used in a way that far under-appreciates its capacity
  • Notes on Open Pedagogy (2016), a response to some writing by Mary Burgess and Amanda Coolidge. This is where I first try to articulate what would eventually become a five-point justification for why we should care about open pedagogy
  • “Open” Educational Resources vs “Open” Pedagogy: Why Meanings Matter (2016) in which I complain for the nth time about why definitions matter and we should all strive to be more precise
  • Toward Renewable Assignments (2016) in which I offer renewable assignments as the quintessential example of open pedagogy, and make a first attempt at articulating a related research agenda
  • Quick Thoughts on Open Pedagogy (2017) in which I respond to Clint Lalonde and make my first attempts at explicitly connecting open pedagogy with Papert’s constructionism
  • How is Open Pedagogy Different? (2017) in which I go on about definitions again and how “words should mean something.” Here we finally get the five-point justification in its current form. Though it’s hard to remember exact timelines, this post certainly appears to be a response to what I recall as a growing list of different definitions of open pedagogy, as well as some early conversation along the lines of “maybe having a fixed definition is a bad idea.” It looks like it was also around this time that I first learned that the phrase “open pedagogy” had been used before by others (more on this below).
  • When Opens Collide (2017) in which I respond to Mike Caulfield, Robin DeRosa, Maha Bali, Clint Lalonde, Jim Groom, Rajiv Jhangiani, Bronwyn Hegarty (and “others”) with reflections about how the adjective “open” means different things depending on the noun it modifies and the tradition the speaker is coming from (e.g., the open web, open educational resources, etc.)
  • Wandering Through the “Open Pedagogy” Maze (2017) in which I reflect on the Hangout conversation organized by Maha (without crediting Maha as the organizer) in a not at all organized fashion
  • OER-Enabled Pedagogy (2017) in which I reflect on the large collection of writing on open pedagogy and open educational practices curated and collected by Maha, an unconference session at a Hewlett grantees meeting, and long (separate) walks with  John Hilton and Rajiv Jhangiani, and announce that I have given up on the phrase “open pedagogy” and would be adopting “OER-enabled pedagogy”

Maha writes:

Many people mention his new term OER-enabled pedagogy but no one ever mentions the process by which he adopted it (bold in original)

To make this easier for future scholars looking for a (relatively) short description written from my own perspective, here is the tl;dr of the process by which I adopted the term “OER-enabled pedagogy.” (For more detail, reference the blog posts listed above.)

  1. In 2013 I made the incredibly stupid mistake of choosing the phrase “open pedagogy” to describe something without doing a proper literature review first to see if the phrase already had a history and definition.
  2. I eventually learned that the phrase “open pedagogy” already had an existing history and definition, and realized that there would always be confusion in the literature about “which open pedagogy” one was talking about. For someone who cares as much about definitions as I do, this was the beginning of the end.
  3. In early 2017 there was a flurry of writing, tweeting, and talking including all the people named in the review of blog posts above which led me to understand that (1) many people were glad that there were multiple, conflicting definitions of “open pedagogy,” (2) there was no hope of achieving consensus about a definition of “open pedagogy” and (3) there were people who felt strongly that achieving consensus around a definition would both (a) be antithetical to the idea of open and (b) be harmful to the field.
  4. My original intent had been to pick a novel phrase and define it with clarity. After it became clear that was never going to happen with the phrase “open pedagogy,” I decided to abandon on the phrase.
  5. After reflecting on the definition I had been refining for four years, and searching both Google and the literature to make sure I was choosing a truly uninhabited set of words, I chose “OER-enabled pedagogy” to describe “the set of teaching and learning practices only possible or practical when you have permission to engage in the 5R activities.”

Maha was right at the center of much that happened in step 3, as the final blog posts in the list above demonstrate. So when people tell the story of how the term “OER-enabled pedagogy” came to be they should absolutely include Maha in it. Perhaps she, more than anyone, persuaded me that I was on a fool’s errand hoping to build consensus around a definition of “open pedagogy.”

It appears that Maha’s post was prompted by a recent article titled Changing our (Dis)Course: A Distinctive Social Justice Aligned Definition of Open Education by Sarah Lambert. (Hopefully Maha will correct me if I’ve gotten that wrong.) In the article, Lambert provides a one paragraph summary of “Wiley’s adoption of the new term ‘OER-enabled pedagogy'” as a description of a single event in a larger timeline. She writes:

Wiley adopts a new term as a response to the way OEP had broadened the field towards constructivist online learning. “OEP enabled pedagogy” reifies the technologically deterministic account of technical re-use as central to change. An alternate view would be that organisational culture and investment in people wrapped around OER technical systems are the cause of the change.  Such “people power” seems to be present in the actual collaborative work Wiley and his projects engage in but is absent from the cited and discussed blog posting texts.

So yes, to Maha’s point, she (and many others) are definitely omitted from the discussion here about how the term came to be.

But there are two points I want to make in response to this paragraph. First, “constructivist online learning” had nothing to do with my adoption of the new term. As I hope to have clarified above, I adopted a new term because “open pedagogy” means twenty different and conflicting things. (And I haven’t mentioned yet that those twenty things overlap with fifteen of the things meant by “open educational practices.”) I adopted a new term because I wanted to create clarity around a specific thing I was specifically interested in talking about, thinking about, and researching about.

Finally, Lambert makes what is unfortunately becoming a common mistake in the way OER-enabled pedagogy is characterized: “‘OEP [sic] enabled pedagogy’ reifies the technologically deterministic account of technical re-use as central to change.” (Nate Angell has made similar comments in the past, as have others.) OER-enabled pedagogy does nothing of the sort. It foregrounds the critical role of rights (or, as Stallman would say, freedoms) in enabling us to engage in a new family of pedagogical practices. Without “permission to engage in the 5R activities” these pedagogical practices would be illegal. OER-enabled pedagogy invites us to stop and ask the question, “given these newly granted rights (that I received when I adopted OER instead of traditionally copyrighted materials), what creative and imaginative and awesome things am I free to do now that I wasn’t free to do before?” That’s not techno-determinism. That’s encouraging people to deeply understand their rights, pause to ponder the full implications of their rights, and then exercise their rights powerfully in the support of student learning.

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