No, Stephen…

Stephen Downes posits that, “ultimately, the effect of Creative Commons licenses is to *preserve* copyright.” This argument is just silly, and is equivalent to saying that “ultimately, the effect of band-aids is that people will keep having boo-boos.”

Creative Commons licenses are band-aids placed on a severely over-reaching and broken copyright system. Of course we would prefer copyright reform, so that we no longer needed CC licenses. But to suggest that CC licenses preserve copyright is to suggest that the first step in reforming copyright and enabling global sharing is to stop using CC licenses. That’s just plain wrong, but seems to be what Stephen is suggesting.

Since the alternative of Creative Commons exists, there is much less pressure toward shorter copyright terms, and much less pressure for exceptions to copyright, particularly those involving fair dealing.

Really? Really? This sounds like pure conjecture. I would love to see even a single statement from a person in position of influence over national intellectual property policy along these lines. I doubt one exists, but am always happy to be proved wrong.

Even if every IP policymaker in the world used this excuse to continuing to lengthen copyright terms in their jurisdiction, CC is the best tool we have to fight these ridiculous policies. Should we stop using them and, consequently stop sharing, until IP reform becomes a reality? I’m certainly not willing to do that.

The real problem with IP law, and the very first thing we should nullify in my opinion, is the Berne Convention.

2 thoughts on “No, Stephen…”

  1. Hi David,
    I’ve had similar discussions on twitter recently and am a bit surprised at some of the caution, even antipathy towards CC. I think even your band-aid metaphor underplays the significance of CC. What I think is key is that it is a permissive licence – it states what is allowed, rather than a restrictive one. This is a fundamental shift I would argue. Maybe it sacrifices some finesse and subtlety for simplicity but it has had a truly liberating effect, in the way that simply saying ‘let’s not have any licences’ wouldn’t do. I often wonder what critics of CC (and particularly the non-commercial flavor) would say if their flickr photos were used in a successful multi-million dollar Coke campaign. CC is the answer to the question always asked of open access ‘but what about intellectual property?’. Without it OA would fall at this first hurdle.

  2. Sorry, but this has turned into an extraordinarily long comment! I am trying to develop my critical thinking in this area and this is where I am:

    I am critical of Creative Commons and the idea of permissive licenses but would not outright dismiss them (is there anyone that rejects them totally?) I think that Copyleft is an excellent method of subverting the limits of private property and the traditional rights of the producer. CC0/Public Domain licenses are also a convenient way to renounce private property altogether but, as Martin points out, have to be used carefully and strategically.

    I have less interest in the other variations of CC and other ‘open source’ licences, but recognise that they can be put to good use and, in my opinion, detrimental use.

    Detrimental use, in my view, because they can provide advantages to and empower the defenders of private property. They liberalise the movement of things and lubricate the cybernetic machine of capitalism. The liberal flow of things is not intrinsically a public good and subtly reinforces the centrality of commodities in the way we relate to one-another. I understand that the OER movement has not set itself up as an ‘anti-capitalist’ movement, but it has strong tendencies towards anti-property and I for one, am interested in Open Education for its revolutionary potential.

    Providing a critique of permissive licenses allows people to make a more informed choice about whether to use one.

    We should be campaigning to ensure that the producers of teaching and learning materials retain the right to choose what to do with their own property. Some universities waive copyright for ‘scholarly works’ and ‘return’ it to their employees, while others don’t. In the first instance, we should be advocating the retention by the teacher/academic/employee, of copyright over their work. The idea that an institution should introduce a mandate that all teaching and learning materials should be a particular CC license is not progressive in terms of the ownership of private property or the autonomy of the teacher. By retaining copyright ownership over their work, teachers can then decide whether they want to license their work and how they do so. It is not unreasonable for a teacher to want to use the non-permissive nature of copyright to resist the mechanised exchange of their work and to force a way for producers and consumers to make contact with one another. To talk, to negotiate, to gift something on a personal level rather than engage in mass distribution for mass consumption.

    Broadly speaking, the OER movement thinks that academics should make all their teaching and learning materials available under permissive licenses so that they flow through the networks more easily and more widely, between producers and consumers. Proponents provide passionate and often compelling arguments about why this should be the case and advocate the idea in their institutions through the development of ‘sustainable’ business cases.

    But for me, this is not progressive enough nor sustainable. As we can see with MIT, for example, it is not enough to make OERs for 2000 courses available for re-use. The value of this effort quickly diminishes as the mass of OER/OCW on the Internet increases. Ironically, but not surprisingly, OCW was of greatest value to MIT when OERs in general were scarce! Now there are more producers in the market (and it *is* a liberalised market), the value to MIT of OERs has been reduced, which they admit to and David has written about elsewhere on this blog. This is an indication of what will happen at every institution which embarks on broad OER projects that require institutional support (infrastructure, staff, training, reward and recognition schemes, new technologies to support the creation of OER, etc.)

    On this institutional scale, there is an expense to this effort which must be met. In MIT’s case, it was largely met through philanthropic donations. Now those donations have run out because, I assume, OERs are becoming more widespread and the value proposition for the continued funding by the donors has been reduced.

    Anyway, back to permissive licenses… there are several variations and we should stop lumping them all together as ‘Open Source licenses’ or ‘Creative Commons licenses’, for a start. I am guilty of doing this, too. If OER aims to be a progressive movement, I would argue that there are only two progressive licenses: Copyleft/Share-alike and in some cases, Public Domain.

    The CC-BY and BY-ND licenses allow our work to be monetised by a third-party. This is not progressive but rather reinforces the present state of things. Unfortunately, this is the creation of surplus value our of labour (exploitation) all the time we live in a capitalist society, where our mental and physical labour is forced to assume a price.

    The Non-Commercial licenses are blunt instruments and simply confusing. Commercial is defined as ‘commercial advantage or private monetary compensation’. This means that a teacher at a private university cannot re-use the OER because it is contributing to their employer’s commercial advantage and private monetary compensation. However, this is not well understood by people and the cause of much debate, as far as I can tell. It also restricts the use of such OER by private not-for-profit organisations, where there is a private monetary compensation made but for all we know, the organisation may direct that compensation into causes which the producer of the OER would in principle support. Better to use the Copyleft license and affect/infect progressive change that way than dance around the debatable concepts of commercial and non-commercial.

    I don’t need to explain the benefits of Copyleft/Share-alike licenses. Richard Stallman has devoted his life to it. However, I would underline the uncontroversial point that Copyleft is an expedient means of subverting capitalist forms of exchange *and* production. Copyleft helps us challenge (but ultimately not destroy) established methods of creating value out of private property and, arguably, has contributed towards thinking beyond the capitalist organising principle of private property and waged-labour (i.e. ‘peer-production’, ‘hacker play’). I hope we get to the point where we don’t need Copyleft at all because the organising principle is one that no longer reduces us to the value of our labour/teaching/knowledge. I also hope that even before that, we can stop reinforcing the meritocratic system of attribution and the comodification of ‘reputation’ that copyright and the permissive licenses all contribute to.

    Beware, that if goods circulate freely, something else will determine the creation of value under capitalism and the crisis will remain the same.

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