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).