There is a growing consensus among those who work in open education – including organizations like BC Campus, Creative Commons, the Hewlett Foundation, Lumen Learning, OpenStax, the Open Textbook Network, Rebus, and others – that the Creative Commons Attribution (BY) License is our preferred license. We each use this license with the OER that we create and advocate for others to do the same. The BY license best reflects our values of eliminating friction, maximizing interoperability, and promoting unanticipated and innovative uses of OER.
Since the first release of the Creative Commons licenses, newcomers to the field have been attracted to licenses containing the non-commercial (NC) condition. This is particularly true for faculty, who tend to immediately imagine scenarios in which unscrupulous others copy and sell their work, making millions and denying faculty their just financial rewards. Consequently, those of us who have been working in the field long enough to understand the myriad problems with NC frequently find ourselves talking with newcomers about why, over a decade later, most of us old-timers (including foundations, non-profits, university consortia, and even for-profits) have a strong preference for releasing our own work under the BY license and strongly encourage others to do so.
The question of how to have this conversation with faculty was recently asked on a listserv and I wrote a rather lengthy response. After some prompting by members of the list, I’m sharing an expanded version here.
Why You Should Choose the CC BY License
About NC: No one knows what the NC license condition means, including Creative Commons. The license language is so vague that the only way to determine definitively whether a use is commercial or not is to go to court and have a judge decide.
For would-be users of NC content, this means never knowing what you can and can’t do. Example – I want to use some NC-licensed content in my course, but students can only attend my course if they pay tuition. Is that a commercial use? Some people think it is. Who knows?
For would-be authors of NC-licensed content, the only way to resolve the confusion arising from someone using your content in a way that you think is commercial but they think is non-commercial is to lawyer up and send a cease and desist letter. Do you really want to spend your free time (ha!) policing the way reusers of your material interpret the NC language? Do you really want to spend your extra money (haha!) paying lawyers to write and send cease and desist letters?
The primary thing you gain by choosing a license that includes the NC condition is legal grounds to go after people whose interpretations of “non-commercial” you disagree with. If you’re not interested in policing and enforcing your specific interpretation, the NC condition doesn’t get you much. A secondary theoretical benefit of choosing an NC license is the possibility that someone will see what you’ve created and decide they want to pay you for a license to use the material commercially. I say this is a theoretical benefit because in 18 years of working in open content I’m unaware of any instance of this occurring (though I would be interested to learn of any you know of – please leave a note in the comments below).
About BY: The BY license condition gives you most of what you want from NC without the ambiguity. While it is theoretically possible for someone to repackage and sell your BY licensed content, every copy that they sell must include an Attribution statement that tells potential buyers where they can get the same material for free. OpenStax, which uses a CC BY license, has some nice model language for this:
“If you redistribute part of this textbook, then you must retain in every digital format page view (including but not limited to EPUB, PDF, and HTML) and on every physical printed page the following attribution: ‘Download for free at http://cnx.org/contents/[email protected].'”
Because you can specify exactly how you want to be attributed, as OpenStax has done here, there’s no ambiguity.
Why would someone go to all the cost and effort involved in selling copies of your CC BY licensed material (e.g., paying for ads to drive traffic to the site where they’re selling it) when every copy will include instructions on where people can get the same material for free instead? Theoretically, it is possible that this would happen but there is very little incentive for the would-be seller to do so. And why would someone buy a copy of your materials when they can get them from you for free? Theoretically, it is possible that this would happen, but again, there is very little incentive for the would-be buyer to do so.
The CC BY language gives you practical protection from newcomers’ concern that some interloper is going to make a million dollars from their work (even if it does not offer protection against all theoretical possibilities). And it does this without the ambiguity and other issues associated with the NC clause. This is why you don’t see Pearson, McGraw, or other major publishers reselling copies of CC BY textbooks. Let’s look at a specific example.
In 2001 Richard Baraniuk released his open textbook Signals and Systems. Richard is an extremely well-credentialled author, with highly prestigious Young Investigator Awards from both the National Science Foundation and the Office of Naval Research, numerous recognitions from the IEEE, and a named professorship at Rice University. Signals and Systems was published 15 years ago and has been licensed CC BY as long as that license has existed. STEM discipline? Check. High-profile author? Check. Prestigious university? Check. Major publishers attempting to commercialize his book? Zero.
With regard to the overall choice: The choice really comes down to which trade-off you want to make. Do you want to risk people who you’d like to use your materials not using them due to worries caused by the ambiguities of NC, in exchange for giving yourself legal grounds to go after people whose interpretation of non-commercial you disagree with? Or do you want to risk the possibility of someone trying to commercialize your materials, in exchange for ensuring that all the people you’d like to use your materials feel safe doing so? The latter seems like a much higher impact choice. And after a decade of watching the theoretical threat posed by publishers fail to materialize, it’s the choice many of us have made.
The only counterexample I can offer to this line of argument, and it’s not a direct one, is the CC BY simulations created by PhET. As I understand it, at least one major publisher includes PhET simulations in their offerings. The publisher doesn’t sell the simulations as a product – I don’t think they could sell the simulations this way for the reasons I’ve described above. But they do include the simulations as a “free extra” to make their textbooks or courseware more attractive than those offered by other publishers. (This thoroughly confuses me, though, because any publisher could add these CC BY licensed simulations as free extras – no publisher can actually gain a competitive advantage by including them…) If the faculty you’re talking to are creating smaller, relatively independent pieces like a simulation demonstrating a specific principle (something that a publisher could theoretically include in a larger offering) you should talk with faculty about this possibility – that a publisher might Redistribute, though not exactly sell, their content.
On the one hand, the faculty member you speak to may feel like this possibility represents a lost opportunity to make some money. However, this “lost opportunity” assumes that, had they used an NC license instead, the publisher would have paid for a commercial license from them to use their materials. Given how publishers’ earnings have looked the last few quarters, it’s believable that they would consider adding some OER to their offerings as a free extra, but it’s difficult to imagine them paying for OER that will increase their costs and further hurt their bottom lines. This supposed “lost opportunity” was probably never really an actual opportunity.
But there’s another way to look at this possibility. Personally, for the OER that I create, I want every learner in the world to use them – regardless of which major resource (commercial or open textbook) their faculty have decided to adopt. If publishers decide to throw my OER in as free extras with their textbooks or courseware, that just decreases the amount of search engine optimization and other work I have to do to make sure people know about the OER I’ve created. It’s free advertising for my OER. After all, I released these materials as OER specifically because I was hoping they would get used as far and wide as possible – if publishers want to help me accomplish my goals, fine by me.
Perhaps more interestingly, a publisher choosing to add some of my OER to one of their offerings is also giving free advertising for the idea of OER, because they have to attribute my work in the manner I specify (see the right sidebar of my blog). If a publisher chose to include my materials with their textbook or courseware, it would send an important signal to faculty that actively undercuts publishers’ main message about OER. Publishers can’t both (1) claim that OER are low quality and (2) claim to increase the usefulness of their offerings by including OER with them. By including my OER in their offering, they not only give me free advertising but simultaneously further legitimize OER, making it easier for OER advocates like me to persuade faculty that OER can effectively support student learning.
How do you talk with faculty about license choices? Do you advocate for CC BY or a different license? What lines of argument do you use? What specific examples (i.e., not thought experiments) do you use to support your arguments? I’d love to learn more about how you have these conversations – please leave a note in the comments.
No CC license obviates the need for litigation when faced with those who are willing to infringe. There is no ROI to protect so few will muster a response to such exploitation. Open source will only persist to the extent that its advocates are willing to fight for it and jettisoning NC is but a signal that they will not raise a finger.
All copyright regimes – including traditional All Rights Reserved – require litigation of those who are willing to infringe, so I don’t see this as a unique critique of open content or open source. The main problem with NC, as I have stated above, is the ambiguity of not knowing if a user’s use will lead to litigation, or if an author’s attempts at litigation will be successful.
I agree that open content and open source will persist only to the extent that their advocates are willing to fight for them. But I think the nature of that fight is one of rejecting traditional economic views and fighting for a more commons-based collaborative production of educational resources. It’s a fight against the view that all creative works should be commercialized and thus all creative works should be automatically copyrighted, requiring formal open copyright licenses before they can be shared across the community. It’s a fight against the extractive market forces that we are taught to accept as laws of nature. It’s a fight to share in the creation and sustaining of an alternative, and better, way.
I mostly agree, although it’s worth noting that copyright is a creation of the state, and not market forces. In a real free market there wouldn’t even be copyright.
In a real free market you would have to defend your own private property by yourself, without support of army or police.
You could insure against it, or join a cooperative, or some other such thing, but none of those really have anything to do with what either David or I were saying.
It was the phrase “real free market” that tweaked me.
Thanks for clarifying the implications of NC. My concern as a newcomer to this process is not that someone would make money from my own work but that students somewhere might be made to pay for it when I have worked to create a free version. I suppose if someone were willing to ignore the BY requirements, they’d also ignore the NC, and as you say, I’m not going to lawyer up to litigate. If there isn’t away to protect free access, that limits the theoretical political activism I saw myself doing as an OER author. However, one must be practical I suppose.
Someone willing to ignore the BY and NC requirements of the CC licenses will also ignore an All Rights Reserved copyright statement on your website. The only way to defend yourself against genuinely bad actors is to take some form of legal action, but this is true for all copyrighted material (including copyrighted material published under an open license). The existence of bad actors isn’t an argument against using the CC licenses – it’s an argument against publishing generally. By which I mean to say that the only way to truly *insure* that your copyrighted material isn’t used without your permission is to not publish it in the first place. 🙂 But as you say, we need to take a practical approach.
A practically effective way to protect free access is to provide free access under open licenses and strongly encourage others to exercise their rights under those licenses. Encourage others to make and redistribute copies of your OER far and wide. Make it easier for people to find the free copies of your work than it is for them to find a copy that someone might try to sell them.
My experience has been that, taken as a group, students are an extremely resourceful lot. If there’s a open version available, and it’s relatively easy to find online, the word will get around.
I think you’re missing an important category of actor who would happily re-enclose CC-BY licensed material, but whose in-house lawyers would shut down any attempt to ignore NC or All Rights Reserved statements: major commercial publishers. Since they’re a major threat to OER, and typically very cautious about copyright permissions & liability, the NC terms seem to serve a real purpose.
Even though there is nothing from a license perspective that stops major commercial publishers from reselling CC BY licensed materials, there do appear to be market forces and other pressures that prevent them from doing so. Again, see the example of Rich’s textbook and the other books published by OpenStax not being resold.
I’ve asked publishers the question “why don’t you just use CC BY material to shorten your development cycle?” and the answer is always “because we can’t get exclusive rights.” Any advertising they did for the work would inevitably end up driving some people to the free version and possibly even driving people to versions of the same OER adapted by other major publishers. No one wants to be the sucker who spends time and money on marketing just to have competitors free riding on those efforts. Not when you could spend those same dollars marketing materials that you are the exclusive provider of, guaranteeing that no one else will benefit from your marketing spend. At least, that’s how publishers have explained their reluctance to me.
Very helpful …
You critique the NC terms for being confusing, and describe BY requirements as a countermeasure for selling content…but according to the license terms, CC-BY does not actually require anyone to use your preferred attribution text. The terms require “appropriate credit….in a reasonable manner”–but say nothing about verbatim text. Your chosen license would allow me to reuse the text on this page, and just name you, provide a link, and note the CC-BY-4.0 license.
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In my own OER advocacy, as a librarian, I encourage authors to use the license that best suits their interests and values. For me, that’s at the heart of the #Open movement–not requiring people to do something they really don’t want to do, but empowering people to create and share in a way that aligns with their own goals and values.
Plus, this is an easier, safer-seeming entry point to #OER; once an author sees the benefits of limited sharing, more open sharing is an easier sell. And even CC-BY-NC-ND licensed work is still moving the Overton window for conversations about educational resources and is still benefiting a lot of people around the world.
Matt, I fully support the idea of empowering people to create and share in a way that aligns with their own goals and values. It has been my experience that people appreciate it when you share some of the lessons learned by the community over the years, and that in a brief conversation you can often demonstrate to people that they can share in ways that support their goals and values without using the NC condition. But as you say, if something more restrictive is their only path into the community, we should be supportive of that.
The “appropriate credit….in a reasonable manner” language you reference is from the “human readable summary” of the license and not the license itself. As the licensor you do have some ability to control the way the attribution is provided – see the “retain the following if it is supplied by the Licensor” language in Section 3.a.1 of the license (https://creativecommons.org/licenses/by/4.0/legalcode). Admittedly, there is a narrower and a broader way to read this language. I guess you can never *completely* eliminate ambiguity… 🙂
How do you feel about the “No Derivatives” clause? I’m somewhat concerned about the possibility that someone will mess up my materials by making incorrect additions. I’m also concerned about the possibility that someone will publish solutions for exercises that I’ve published.
The No Derivatives clause prohibits people from making improvements to your materials, prevents them from making cultural or pedagogical changes that will help materials better address the needs of local learners, and precludes them from translating materials into other languages needed by their learners. But, as you say, it also prevents others from “messing up” your materials. Keep in mind that people won’t be editing your copy of the materials, they’ll be editing their own copy based on their understanding of what their students need.
It’s not clear to me whether solutions to exercises qualify as derivative works for the purposes of copyright (and therefore the license).
__Thanks to Clint Lalonde for pointing out, Pearson is making its Learning Design Principles (LDPs) publicly available under a [CC BY SA] creative commons license to “broaden the conversation” on the learning principles that should form the basis for educational products. [-] “We’re excited to share our Learning Design Principles as a way to open up a broader conversation about what principles should serve as the foundation of education products.” [-] “We believe products that start with learning design can deliver better outcomes for students. That’s what we’re out to prove at Pearson.” _ http://www.thebookseller.com/news/pearson-shares-learning-design-under-creative-commons-license-448226
Personally, I think that every argument for CC-BY is at least as good an argument for CC0, which is what we use if possible. But more open is better than less open, and the move as a whole from various NC and SA silos of content to a standardisation on CC-BY is only a quibble away from what we do.
My response. http://halfanhour.blogspot.ca/2016/12/wileys-misguided-advocacy.html