Any original creative work automatically qualifies for copyright, allowing the owner to control various forms of use. Commonly, resources are published as being "© All rights reserved", however the owner may grant users permissions to reuse content through an explicit licence. Open licences are those that give the end user permission for significant levels of reuse, redistribution and modification with minimal restrictions. The most well-known type of open licences are those provided by Creative Commons1. It is a common misunderstanding to think that someone chooses a Creative Commons licence "instead of" copyright, or that in using an open licence they are "giving away" the copyright. Licensing does not change the ownership. Licensing is about the owner granting permissions to other users.
Teachers have copied, modified and redistributed digital resources for as long as there have been digital resources. This was often without permission, but was low risk as the product was only shared with learners. With the growth of Virtual Learning Environments (VLEs) / Learning Management Systems (LMSs) in the early 2000s, and their use for distance and online learning outwith the institution, teachers' materials became more widely visible. This increased the risk associated with using copied material, and started to raise awareness of the copyright issues around reuse of digital content. The use of resources released under open licences legalises the teachers' natural practice of copying and adapting resources to meet their needs. Attribution to the owner of the resource is a requirement of all commonly used open licences, so technical approaches to managing attribution are important in facilitating the legal and ethical use of OERs.
The approach the Programme took to licensing evolved as the Programme support teams learnt from the experience of the projects. In Phase One, the Programme allowed the use of any Creative Commons licence even though some projects would have preferred the Programme to mandate a particular licence. In Phase Two, in response to the problems surfacing around restrictions on commercial use and having learned lessons from the Phase One, the Programme recommended that resources should be released under the most liberal licence that requires only attribution.
The Programme approach could be characterised as follows:
The lessons that have emerged from the Programme provide valuable insight into how awareness of licences and licensing practices can develop.
Creative Commons licences are not unique in facilitating the activities that teachers engage in when using and reusing resources, however they do have some benefits over alternatives. The single most persuasive benefit is that since their use in landmark initiatives such as the MIT OpenCourseWare2 they have become a de facto global standard for open educational resources. The global use of a small set licences brings the following advantages:
The widespread adoption of Creative Commons licences also provides assurance that they provide a sound legal and technical solution that can be easily implemented.
Other licences for OER
Although the steer from the UK OER Programme, both to projects and to Jorum, was to use Creative Commons, JISC remained very open to the emergence and adoption of new licences.
At the time the Programme started there was an additional licence available that had been developed by JISC Collections, JISC's national content negotiation body. It was designed as a bridging licence between publisher contracts and Creative Commons and was not actively promoted. Legally it was as sound and as liberal as Creative Commons, but it was not so widely known and recognised.
Towards the end of the programme, the Open Government Licence (OGL) gained currency with developers for data sharing, but this licence hasn't yet had a significant impact on the OER domain.
Software produced by projects was subject the JISC Software Outputs Policy3 which requires that it is released under an open source licence. These licences permit similar uses as Creative Commons licences but they also include provision for legal issues other than copyright that may be important for software reuse.
The OER IPR Team produced a useful briefing paper on different types of open licences.4
The different Creative Commons licences combine restrictions on the use that can be made of a resource. In some quarters, these restrictions are considered problematic by those involved in promoting OERs. When referring to Creative Commons licences, each of these restrictions is commonly referred to by a two-letter acronym.
BY (Attribution): the user must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). This is a requirement of nearly all the Creative Commons licences. This condition aligns well with academic practices regarding citation.
SA (Share Alike): if the user alters, transforms, or builds upon the work, they may distribute the resulting work only under the same or similar licence to the original. Given the ambiguities of the Share Alike clause, this licence can inhibit reuse and adaptation. CC SA licensed content can be difficult to adapt and re-use as effectively it can only be remixed with other content carrying the same licence. The OER IPR Team's Creative Commons Licence Compatibility Wizard5 provides guidance on different licence types.
NC (Noncommercial): the user may not use the work for commercial purposes. This is hugely problematic in the education domain due to different and changing perceptions of what may be regarded as commercial activity, whether it relates to the business model of the provider or the use of the content. Discussion of these issues can be endless and political, and no easy answers emerged during the three years of the Programme.
ND (No Derivative Works): the user may not alter, transform, or build upon the work. This restriction inhibits adaptation and therefore frequently regarded as unsuitable for OER, however some projects argued with just cause that allowing unchecked modification could be problematic, particularly where the resource dealt with medical or other potentially harmful issues.
Most Creative Commons licences are combinations of these four restrictions, for example CC:BY-SA represents a licence that requires derivative works to be attributed and shared under the same licence. The exception is CC Zero which waives all the author's rights, including attribution. This option is increasingly popular for data and for the free culture movement. There is also a Creative Commons Public Domain mark by which resource publishers can express that the content is not copyright. This is not a licence as such, but an expression of the IPR status of the work that negates the need for a licence. Over the course of the programme the Creative Commons Public Domain mark was not used by any of the UK OER projects.
It was well known before the Programme began that the ownership and copyright of content produced by academics was at best unclear and and at worst misunderstood. Different institutional cultures take different approaches to intellectual property rights, particularly in relation to teaching and learning resources. For a definitive answer to who owns educational content in any specific institution, it is necessary to refer to institutional policies and guidelines, terms and conditions of staff contracts, handbooks and codes of practice. It is to be hoped that institutional IPR clauses will become articulated more clearly, driven in part by increasing awareness of the open access and open educational resource movements. In the meantime however, the situation is complex.
The advice given by the UK OER Programme, stressed that projects should address how authors, owners and contributors were attributed, both as part of the production process and at the point of release. Attribution is a non trivial problem as the author (the person or persons who creates the work), the owner (sometimes the employer of the author), and the contributor (sometimes the person who deposits the content to a repository) are usually distinct separate entities. Allocating unique identifiers to people and institutions is one obvious solution to aiding attribution and citation, but the governance of such a service is complex.
Attribution is important to both the contributors and users of OER for a variety of reasons including:
The importance of attribution for OER users is in:
Provenance and citation are important aspect of all academic and scholarly practices; the ability of Creative Commons licences to support these practices is of particular importance to OER developers and users.
An interesting parallel can be drawn with the importance of attribution to photographers; indeed photographers have helped drive this debate with the Creative Commons community. This was nicely illustrated by the contribution of the Phonar6 project at Coventry University.
By contrast, the critical problem facing the domain of open data, is not how to manage attribution, but how to deal with attribution stacking. This is when the sheer volume of aggregated content makes effective attribution unfeasible. As a result, open data advocates are inclined to argue loudly against the BY clause in Creative Commons licences and in favour of CC0, however in the OER domain the drivers are stronger to maintain attribution.
Even though most Creative Commons licences include the "BY" clause17 many resources that use these licences are still not attributed effectively. There is a lack of comprehensive data on the ways in which licences are applied, however anecdotal evidence suggests that although it is very common to find a logo that includes information about the owner of a resource, and it is much rarer to find a logo accompanied by a name and an identifier.
Consider the combinations in figure 11.
Thomas, A., (2012), Human Readable and Clickable Licences
Although there is widespread recognition of the importance of open licences for open educational resources, there is little appetite for strict enforcement of licences and considerable resistance to digital rights management (DRM). However it is not just the protection of copyright and intellectual property rights that is undermined by lack of effective attribution, the reuse of content also suffers, and the crucial link back to the author, from which other benefits can arise, is broken. Putting DRM to one side, and focussing instead on enabling a healthy ecosystem of use and re-use is the way forward for licensing of open educational resoruces, but there is still considerable room for improvement.
As described in the chapter on Resource Description, once an OER is released into the wild, it is best if it carries some of its metadata with it. This is critical for licensing information and metadata because, without the attribution information, the licensing and attribution conditions cannot be complied with.
Embedded Licences are licences that are part of the resource itself and that travel with the resource. Portability is important as, due to the nature of the web, copyright owners cannot assume that the user will view the resource in the same place or context that it was published.
Machine readable Licences are licences that can be read automatically by machines. The diverse range of formats used for OERs, as well as the range of capabilities of authoring, dissemination and view/play platforms, results in a plethora of technical combinations that need to be considered when implementing machine readable licences. The potential for better technical solutions is clear, and JISC has tried to nurture new solutions. See the Future directions section, below, for details of the Creative Commons Licence chooser, which is a good step in this direction.
Xpert Media Attribution7 at the University of Nottingham was funded by JISC prior to the UK OER Programme. This is a hosted web service that provides image, audio and video search via the flickr and Jorum APIs, and uses the rights metadata to stamp the copyright information onto the bottom of the image. With OER Rapid Innovation funding, the service is now developing a stand-alone image attribution stamper8.
Image with licence and attribution added by Xpert
In parallel with the UK OER Programme, UK developer Pat Lockley, also contributed to the OpenAttribute project9. One aspect of this project is the development of browser plug-ins to display the information from RDF embedded licences in the browser. This is a good solution for html resources, but relies on the user having installed the plug-in for their browser.
With a small JISC CETIS OER Mini Project grant, a team at MIT developed CaPRéT Copy and Paste Attribution10 which builds on OpenAttribute to provide attribution and tracking functionality for content that is copied and pasted online resources.
Text copied from CaPRéT enabled blog. It should be noted that the text appended to that which was copied is not always welcome.
In the early phases of the Programme, projects focused on raising awareness of the importance of licensing, supported by materials from the OER IPR Support Project including a risk management calculator11
It is still the case that institutional library staff, those traditionally tasked with the stewardship of IP, are likely to be the most risk-averse. IP and enterprise offices tend to be more concerned with protecting IP in patents rather than exploiting IP through open content approaches. However institutional libraries and professional library staff have started to engage much more with open licences in recent years and are now have the potential to play and important role in making open educational resources more credible.
OER has partial roots in hacker culture, where there is a higher tolerance of risk than in many institutional settings. Within the context of the Programme it would have been acceptable for individuals to waive their rights entirely, but perhaps unsurprisingly, none of the projects took this approach.
Early on there were high expectations of how technology could facilitate the clearance of rights, with some project staff even suggesting that JISC could provide a central clearing house for "orphan works" (works within copyright but where the ownership is unknown). Most commonly though, the focus was on seeking rights from known owners to reuse content under CC licences. This might be content currently held in authenticated environments like VLEs, or content available on the web with all rights reserved, or content provided by negotiated publisher deals.
In Phase Three, the PublishOER12 team built on their previous OER projects to tackle the question of rights seeking head on. It is notable that this is one of the most experienced teams in the programme and one of the few to explore different approaches and technologies for embedding of third party rights in a systematic way.
Probably the most commonly-held misunderstanding regarding licensing is that the licence must be assigned by or to the repository. This is not the case with Creative Commons licences however the perception persists largely because repositories frequently act as the point of distribution, and the notion of deposit is tightly coupled with the notion of licensing. However, it is unhelpful to envisage licensing in this way because once content has been created it is the rights associated with the content that determine the licence, rather than the rights associated with the repository.
To take a step back, there is a fundamental question of how far open licences are essential for facilitating the creation and use of OER. As Amber Thomas explored in "Rethinking the O in OER"13 and "The OER Turn" 14, there are questions to unpick: if content is simply read, played, watched or linked to, does it require the contributor to have made it available under an open licence?
"I find myself asking what the “Open” in Open Content means. Well, it definitely means free (not paid). And it means easily linkable, which means not authenticated (not closed). However what about near-ubiquitous controlled access through gmail or facebook? Sometimes the format matters, sometimes the licensing matters. Maybe this matters a lot for content to cross language boundaries, maybe it matters a lot for accessibility. In which case do we need to articulate the costs and benefits of open content for those use cases? We don’t want to kill open practice dead by focusing too strictly on definitions of openness any more than we want to kill open content by diluting the promise to users seeking editable re-licensable content. What questions should be asking about open content?"14
Regardless of degrees of openness or the type of open licence used, if open educational resources are to be used more widely in education they need to be citeable. Consequently, the importance of provenance means that attribution is a key aspect of any educational resource use.
The CC Licence Chooser15 released in summer 2012 has improved users ability to select appropriate licences and generate snippets of HTML referring to the licence deed and including all the information required for attribution encoded as RDFa.
Creative Commons Licence Chooser
It is also likely that that new open licences will emerge. Creative Commons 4 is under development at the time of writing but it is not clear whether that will simplify or extend the licences currently available.
The potential for dedicated remixing applications and platforms to make legal remixing of content easier is a real technical opportunity, and one being explored by SupOERGlue16. However, due to the sheer volume of content available and the diversity of contributors and users, it is not enough for a platform to simply exist; it needs to have traction, to be used, and for other actors in the ecosystem to provide content and licensing data in machine and human readable formats.
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