November Office Hours: License to…? (Audio Transcript)

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Audio Transcript

Speakers:

  • Robin DeRosa
  • Maha Bali
  • Amanda Larson
  • Cable Green
  • Jennryn Wetzler
  • Karen Lauritsen
  • Zoe Wake Hyde

Zoe: Hi, everyone, it’s such a joy to see so many people joining us for this conversation. It’s one we’re really excited about. I’ll hand over to Karen in a moment to introduce our wonderful speakers. But I’ll start with one practical point, because we have quite a few people on the call, I have to say this a couple of times, but those who just joined us, if people could please leave their video off for the moment, so that we can make sure that it’s stable for the speakers.

And then, if we get really patchy, if you let us know in the chat, then we might look at turning off cameras for the speakers as well. But we’re hopeful that it’ll hold. So, I think there are forever conversations to have about licensing, there’s no end to them. This one in particular was really sparked by an exchange that happened on Twitter a while ago. But these are kinds of things that we see around the place all the time.

And so, when we approach these Office Hours sessions, what we’re trying to do is give space for some of those conversations that people are having and hoping to have. And someone’s trying to call in and have one of those conversations right now, maybe (laughs). So, we wanted to give some space to it, to pick it up in a different context, and really invite an amazing group of people who we’re really excited to have been able to get in the same place as the same time, ’cause they’re all very in demand.

And so, we’re hoping to have as I say, a conversation about licensing, about what role it plays in our ecosystem and then, see where it goes, as well out of in response to the perspectives that our guests are bringing. So, again, thank you. We’re really pleased to be here and doing this. And so, now, I’ll hand over to Karen to introduce our guests.

Karen: Great. Thank you, Zoe. My name is Karen Lauritsen, I’m with the Open Textbook Network and we are delighted to partner with Rebus on Office Hours and any other things we can come up with. So, as Zoe said, we’re really excited about this conversation today. We had a robust RSVP and so, we expect many people to join us. And we’re really happy to have four featured guests, each bringing their own perspective and role to this conversation around licenses.

So, we’re going to start hearing from Robin DeRosa, professor and director of interdisciplinary studies at Plymouth State University. Then, we’ll hear from Maha Bali, associate professor of practice, center for teaching and learning at American University in Cairo. Next, we’ll hear from Amanda Larson, open education librarian at Penn State University. And finally, we’ll hear from Cable Green, director of open education at Creative Commons.

If you’re new to Office Hours, our format is to hear briefly from our guests, from three to five minutes to give an orientation to their perspective and experience. And then, we really like to open it up to you and your questions and have a conversation as much as we can. Sometimes, when it’s really big, it’s a lot to juggle the conversations, so be patient with us. If we miss a comment in chat, and it seems like we’re moving on, please raise your hand again, just let us know.

And we’ll facilitate as much as we can. So, without further ado, I will hand things over to Robin.

Robin: Hello. Some waves. So, this is my favorite thing about working in open, is that you model your befuddlement on Twitter, and then before you know it, there’s a webinar, (laughs) in which you are starring with all of your befuddlement, so I think putting me at the front, to open this is really less about me telling you what I think than more explaining the source of my confusion about this.

And I’ve been working in open for a pretty long time, so my confusion is not actually about the terms of the licenses, per se. So, I feel pretty adept enough at figuring out what license goes with what artefact in order to let that artefact do what I want it to do in the world. The question that I started getting interested in was really about what license goes with the ecosystem that I’m most excited about teaching and learning inside of?

And is that a different license than might go on any particular one artefact that I’ve designed? So, I’m influenced in this question by things like the care framework, which maybe somebody can drop into the chat the link for that, if people haven’t seen it. But this is a framework basically for the kinds of ethos I think that we might hope to permeate open in order to produce a certain kind of ecosystem and a certain set of behaviors.

So, the care framework talks about the four pillars that surround open being about contribution, attribution, release, and then empowerment. And it’s that last one that I become most interested in, that’s where they talk about inclusivity and diversity. And how to get new and non-traditional voices into open. And I’ve been affected by folks like Tara Robertson in this work, some of the work that she did about, I think one of the things I remember was about “On Our Backs”, the lesbian porn work.

And the awesomeness of having that whole collection digitized and made public. But also, when that artefact first existed in whatever it was, probably like the 70s or something, people did not anticipate where that sharing might go. And we see this a lot with work that people are doing around indigenous communities and open. The question of whose knowledge it is to share and what the politics of sharing are might mean that open, fully open all the time, right?

My go to CC BY is maybe not always the best way to steward the ethos of inclusivity and empowerment in that care model. So, there was that, and then, the other piece that was really affecting me was the model of the commons, from people like David Bollier and Jim Luke who have talked about when the commons has been dismissed because some of the older research about the tragedy of the commons, which is really kind of about when things are open.

What happens if really aggressive and powerful people are able to exploit what’s open in order to do things that aren’t in that sharing model? And I see that happening, honestly, in open. And I worry about the co-opting of open, by really powerful, especially for-profit corporate entities. And I feel like I’m less interested in the sharing of a particular artefact than I am in if we wanted to build a system that truly worked for the public good, what is the public good?

And what kind of licensing do we need to do? So, I was actually asking a question about should I switch to NC? And by the time I finished this Twitter conversation, not only did I realize I was way more confused than when I started, but also, that I was leaning much more towards SA then NC. The main reason so far, I’ve stuck with CC BY is simply because I feel like when I get into SA territory, it gets a little harder for the remixing, which is really how I tend to participate most in open.

So, I have some concerns about the practical on the ground work that happens with SA. But in terms of the ethos of open, I think that’s where I’m leaning right now, but that was the conversation I wanted to open is what’s the ecosystem? And what’s the long vision for what we’re trying to build with open beyond any particular one artefact? And I think that’s what I got.

Karen: Thanks, Robin. Maha, I’ll turn things over to you.

Maha: Sure, thanks. And thanks for this Robin, ’cause I think when I was part of that Twitter exchange, I didn’t really get the part about the ecosystem as much as I got it now, when you said it now. I’m going to try to be very brief about mine, and hopefully we’ll have a discussion about this later. First thing, I just want to say is I think one of the most important things to think about what Catherine Cronin talks about in terms of open educational practice in general, being contextual cultural, continually negotiated.

And so, whenever I talk about a license, which is important, but not the key thing about why we’re open. We’re open and we use the license to fit our purpose. And yeah, the reason there are several licenses is that different licenses fit certain purposes. I think what happens is there happens some kind of license shaming in the open ed community sometimes. It’s like CC BY is the best thing, and why are you not doing that?

So, I think one of the first things that came to mind is we’re working with Rebus to create a textbook on sight reading for guitar. And the condition to get Pressbooks for free is that the book has to be CC BY. But the book is about sight reading for guitar, it’s got musical pieces by composers. And it’s not okay with them that someone takes those pieces of music and commercializes them.

So, what we eventually negotiated with Rebus was that those pieces would be CC BY NC. I can’t remember if we decided on no derivatives also, because maybe musicians don’t want that, ’cause it’s a different ecosystem (laughs) outside of what we’re trying to do as educators. They don’t owe us that. And their work can be commercialized, it can actually bring in a lot of profit in ways that sometimes our work isn’t.

And so, I thought that was a really good combination, is a work does not all have to have one license. Yes, it might confuse people, but that’s not the point. The point is we’re thinking about empowerment and exploitation. We want every person to feel like they’re getting what they deserve and what their rights are within that project. The other thing I think about is for example something like no derivatives, which not considered an OER.

And that’s fine not to consider it an OER, it’s like we decide what OER means. We decide what a planet is and that Pluto is or isn’t a planet. We decide, we construct these things. And I think some things would never be kept open if we didn’t allow people to say no derivatives, but you can access it. So, I think for example about my PhD thesis, I would not be comfortable with someone publishing a part of it without my permission.

It doesn’t mean I wouldn’t ever give my permission. But it means that I would need to know who that person is and for what purpose they were going to use it. And I would not be comfortable with someone taking a chapter out of it, putting it into a book, whether it’s commercial or not, without me knowing the context. I also publish a lot of stuff in different spaces.

And sometimes it gets republished, sometimes with and sometimes without my permission. But I am very sensitive about the images that they use as featured images for my articles. And even when I was an editor and a columnist for Hybrid Pedagogy, which is my favorite journal, I always asked them to check in with me about the image. They wouldn’t let me choose it, but they’d give me a choice among three or four of them.

‘Cause there are certain images like for cultural reasons I wouldn’t accept as images for my work. And so, that’s how a derivative can be taken out of—(silence). That part has been changed. One of the reasons people talk about the importance of allowing derivatives and commercial use and so on, often relates to allowing other people to translate your work. And a lot of educational work, yes, you want it to be open, you want other people to use it, you don’t want them to get back to you.

You want them to just translate it and use it and do whatever they want with it. But we forget that translation is also sometimes an act of violence. And that there is particular content that is sensitive and that could be translated incorrectly, and political problems happen because of poor translation or problematic translation. And it’s not a straightforward thing. So, sometimes you don’t want someone to translate it without your permission, without getting back to you, without you knowing that this is happening.

It’s not that you would never allow. It’s that you want someone to get back to you, yes, it’s an extra step. It decreases the openness of something but might be still in the spirit of what you’re trying to do more than that aspect of it. The last thing I want to talk about is cultural. I have a friend in Sudan, who once created her own science teaching textbook for her cousins and friends.

And when she found that it was helpful, she went to the government in Sudan, in the Ministry of Education, and told them, “I want to help you guys, I’ve got this textbook.” And do you know what she found? She found that someone else had sold it to the government. And now, she’s the person who created this, who wanted to give more of it for free, but they didn’t even want to talk to her, because they already had it. But that person who gave them that, a photocopy of it, couldn’t create more of it.

But what happened is there was a problem of attribution and copyright, you know, it’s a plagiarism and copyright violation. And all those violations. And the thing is when you’re in a culture where this kind of thing happens a lot, asking people to put stuff CC BY is like so far away from where they’re at. They’re not worried to just share something with their neighbor, lest the neighbor take it over and do something with it.

So, I think taking account of those things as well, is also really important. Like where you’re at, what kind of culture you have, what would someone do with something that’s given a very open license, when actually you’re in a culture where anything that’s put anywhere can be taken and anything can be done with it. So, those are my thoughts.

Karen: Thank you. I’m going to hand it over to Amanda now.

Amanda: Hi, so I spent a lot of time thinking about all of this. A large portion of my role as the open education librarian here is to help faculty think through what license is appropriate for whatever it is that their output is. And so, we talk not just about CC licenses but also about open software licenses, and then, the tribal licenses from local contexts. All of that is in the parameter of what I am thinking about when I’m talking to faculty about licensing materials.

And it’s really easy to be an open advocate and get on your high horse about CC BY being the best, and I started in that place. And have since moved into there’s a license for every context. And I really try to advise faculty to pick the license that they are comfortable with, for the material that they are generating. And if that takes multiple meetings and chatting about what they want to do with their work, what they want other people to do with the work.

And I’m fine with that, I’ve also advised people not to license their work openly, depending on how they answer questions about how they want it to be used. It might be better for them to have just like retain their copyright and have people come to them and talk to them about the materials that they want to share. Would I like them to make it open? Most times, yes. But that might not be what’s best for their context.

And I spend a lot of time walking them through the CC license chooser and showing them the differences between licenses and what that means. And a lot of times we do a lot of back and forth about what license might be best. And I’ve also been doing a lot of thinking about vendors who are deciding to scoop up OER and put it inside proprietary systems and whether we should be advocating for an SA or an NC license.

Because if we go back to the thought about the commons, basically what they’re doing is enclosing our content within their system and adding a market value to it. And then, saying that they’ve added value, and then we have to question whether they are adding value that’s worth paying money for. And I’m in an interesting institution where OER is defined as not just open things, but also affordable things.

So, I have to also keep tabs of what’s happening in the inclusive access space and making sure that’s not going wildly awry here. And that is a very complicated ethical issue that I face daily. But so far, we have been able to say that affordable is a certain thing, and most inclusive access do not meet those criteria. But I would like for us to get back to the point where we are defining open as open content, and affordable things as educational content.

And so, that’s where I’m at, advocating within my institution now, is like can we go back and redefine how we’ve defined this? And I think that has a lot to do with also, the licensing component. I was reading the chat. And yeah, so I think that’s the best part of my work, though is working with faculty to talk about how they want to use their work and helping them figure out the best choice for them.

Every license has a purpose, and it’s important not to ignore those purposes, in the favor of one overall best license. I think it’s important to remember that these are nuanced situations. I think that’s about all from my context.

Karen: Thanks, Amanda. And to wrap up our featured guest comments, I will hand it over to Cable.

Cable: Hi, everybody, can you hear me okay? Good, okay. Well, thank you for inviting me, I really appreciate it. I think everybody knows Creative Commons is a global non-profit. And we’re in the business of helping everybody around the world share knowledge and creativity with these licenses that everybody’s been talking about. These simple, legal permissions really with the purpose of building a more equitable, accessible, and innovative world.

We certainly work with the open education community but also with open access, open data, open science, we work in the glam sector with arts and culture, and even more. We work with the open source software community on their documentation. So, we have a very broad purview. Most people know Creative Commons for our broad suite of open copyright licenses, and certainly, that’s an important part of what we do.

We also have programs, so Jennryn’s on the line, she runs the CC certificate program. We’ve got a whole open education program. We’ve got a copyright reform program, where we’re trying not to create new licenses, but actually to go right at copyright and try to make it work better for educators and scientists around the world. We try and do things like expanding existing freedoms and permissions in things like fair use and fair dealing rights.

And we try to blunt expansion of copyright terms that keep things out of the public domain. So, we have a broad look on the work that we do. For this particular conversation, I think the reason I got invited in was that most of the OER that’s in the world is either in the public domain, or it’s CC licensed. We’re very proud of that, we like to say we put the open in OER. And so, Jennryn and I spend a lot of our time in the open ed space.

The standard definition that most people use for OER is important for the licensing discussion. And I’m just going to drop in the one that we use into the chat. So, Creative Commons uses basically the UNESCO definition, which comes from the Hewlett definition, so they’re all kind of the same. They basically say for something to be OER it has to have two characteristics. One is that it must be freely available, or available at no cost.

And second, that you have to be able to modify it somehow, to meet local needs. And so, that definition that I just shared is the one that we use and it’s basically the one that UNESCO and Hewlett use as well. So, what that means in terms of licensing is that we have six licenses, as everybody knows, we have two no derivatives licenses. And I want to say I completely agree with what people have said about there’s a license for different purposes and for different people.

And we are 100% supportive of that. And we regularly recommend ND licenses when the situation warrants it, or when that’s the wish of the copyright holder, or the author. That being said, the two ND licenses are broadly recognized as not being OER compliant, because you can’t revise or remix an ND license work and then share that revision out with the public, which violates half of the OER definitions that are out there.

Then, the last thing I’ll say is that even though we certainly do defend all the licenses in court, in fact, we’re defending the non-commercial license in court in the United States right now. There’s a big court case on that, and we’re in there fighting to defend for people to use NC and for NC to be interpreted in a way that we believe that we’ve written the licenses. And we strongly support any license choice that people have.

All that said, we do as an organization regularly advocate for CC BY in one particular circumstance, and that is on publicly funded resources. So, when we’re talking with a foundation, but mostly governments, when we’re talking about publicly funded resources, usually what the funders, as we’re asking them what their goals are, they’re trying to maximize the impact, the positive impact that their public investment has.

So, they’re asking themselves about stewardship of public monies questions, they’re trying to maximize downstream revision and remix opportunities for the public. And I’ll share this link in one more time, when Robin started talking, she was talking about SA and thinking about the different remix opportunities. There’s a link to the CC remix chart on our FAQ and one of the things, a big thing that governments think about is how can the work that I’m funding with public money be used by the most people for the most purposes?

And usually, where they come out in that discussion is to offer it either as a work in the public domain, which is always what we advocate for first. But where copyright needs to sit with the grantee for whatever reason, and there are several reasons, that we recommend the least restrictive license that they’re able to tolerate in their policy. And if we can get CC BY, great.

If we can’t, we usually go to BY SA or BY NC and then, we go down the line from there. But we do push governments pretty hard to put works out under the fewest restrictions possible, because fewer restrictions tends to equal greater opportunities for revision and remix, just at a very tactical level. Thank you.

Karen: Thanks, Cable. And thanks again to our four guests. So, as Cable was talking, the chat exploded with the conversation that I think really tries to get at the challenge of this conversation around as Robin called them artefacts or the stuff. And this ecosystem that we’re considering and the larger system dynamics as Jim mentioned in the chat. And how do we think about building a world that we want, when we have a very flexible environment with lots of different licenses?

And we want to have, as Maha mentioned, two-hour consultations with faculty about exactly what they’re trying to do with that particular artefact. I certainly do not have the answer, but I think it’s one of the challenges that’s in this conversation with us. So, we have half an hour left together, and so I wonder if that’s where we would like to start, or if there are other notes that were made in the chat that someone would like to pick up and run with together? So, I leave it to the group to direct us here.

Robin: I might just say one quick thing, which is my academic training is in literature, so this will not surprise you when you hear what I say. But I am also interested in the licenses working on two levels. One is this technical and legal level and the other is this symbolic and rhetorical level, which is always the level that’s the level that interests me. I could care less really, about, just personally, I care about other people’s legal situations. I don’t care about my own.

So, when I think more rhetorically and symbolically about licenses, I actually come up sometimes with different answers than I would come up with in a legal scenario, for the same context. And one problem I have sometimes working in open is just finding the symbolics to communicate the complexity of this kind of way of doing education. And so, I have found actually the Creative Commons licenses to be the most helpful way of talking with faculty in particular about my vision.

About like the flag, that kind of helps people understand what we might be trying to achieve in a broader sense. And I think that sometimes inflects the licenses that I choose, because I think about them more as rhetorical tools, rather than legal tools. And it might be worth talking with people, when you’re choosing licenses about that dimension, like what do you think the purpose of licensing is?

There’s a lot of people who work in various contexts who are actually not that concerned about the legal trail of their stuff. What they’re really concerned with is what teaching and learning looks like after they openly license something. So, anyway, thought I’d throw that out.

Karen: Thanks, I wonder Amanda, do you have some thoughts on that, based on your variety of conversations with faculty?

Amanda: So, I actually start them with the why, why do you want to license it openly? And here, it’s still been largely about affordability, about it being able to make something affordable and open, especially at the Commonwealth campuses. And so, we just started our second round of our OER grant program, and we had some buy in this time from University Park, which is the flagship campus here.

And they’re way more interested in the rhetoric behind it. They want to make it free because information wants to be free. And I’m like, “Well, I don’t know about all of that, necessarily.” But I still always try to start that conversation with the why. What’s your motivation for doing it when it’s really easy just to make copyrighted stuff and not do that? But I think a lot of them are coming from a perspective of they do want to get back to the idea that education is a public good.

And they want to make their materials available to not only help their students, but also to share them back out with their colleagues. Because that’s something that has died a little bit, here, in higher ed. And that makes me feel a little misty and get all happy inside that that’s where they’re coming from. But also, it makes me think really hard about the license that I either recommend or that we come around to. I don’t know if that helps, but that’s what I got.

Karen: It does. This is a conversation, we’re probably not solving all of the problems in this conversation. (Laughs) So, hearing different perspectives is great, and I think like you, I tend to get misty when thinking about the public good and moving public education back to what we imagine it. But then, as one of our guests mentioned, I don’t remember who, how are we defining the public good? Public good is different in different contexts.

And here we are again, almost back at the starting point, it sometimes feels. So, again, there’s a lot happening in the chat. I encourage anyone to turn on your microphone and surface something in the chat, if you would like to get it going in voice. Or we can sit here quietly and type in the chat (laughs).

Robin: I saw that good question about resource sites. I don’t have one, with my students we actually just use that Creative Commons, choose a license, radio button site. And the more I talk about it, the more I realize as someone in the chat said earlier, we really need a different— I mean, that’s a great site for technically producing your license. But I’m usually just filling in the back story verbally to them, as we’re walking through that.

And it would be cool to have an interactive site popping out, Tara Robertson moments. Things like that, so that you could read a fuller accounting. Does anybody have, even if you’re not presenting, if you have something in the chat, put a link, it would be awesome.

Karen: Thanks, Robin. I agree. There’s probably a lot of resources out there, in the community from people in this call that they can share, including conversation starters with faculty. Questions to ask when sitting down and considering all the competing priorities and selecting a license. As Apurva said, you’re also welcome to drop questions in the chat and we can read them out for you.

Do we want to talk about the CC BY expectation? Or this pressure that a few people have mentioned around licensing CC BY in open education? Feelings?

Maha: So, in general if it was just a matter of rhetorical people preferring something over the other, I wouldn’t care too much. I think the problem is funders requiring it, means something. It means that if you have a very good reason [inaudible 0:31:41] OER and the definition of OER includes NC and SA. I understand why it doesn’t include no derivatives, but if it includes NC and SA, I don’t understand, I’ve heard this so often.

I’ve never sought funding for OER in a big way. But that I think is an important conversation. And publicly funded is different than other kinds of funding. And I think it is really important to think of people who are marginal or contexts where the culture is different, where maybe CC BY is not necessary. Okay, Cable, you go.

Cable: No, whenever you’re done, I was just putting my hand up for being next. Go ahead.

Maha: I was done, if you have an answer to that. Just a very quick question to Robin, also, when she says ecosystem, I was thinking ecosystem has the little components in it, anyway. And for me I don’t understand why I need a universal license for the entire ecosystem, as long as you can have little things for the little different things in between.

Robin: I want to talk about Robin Sitten too in the chat, here because that’s pretty interesting. But I think I don’t need a license for the entire ecosystem, but I really enjoy the marking of an ecosystem. And I’m trying to figure out how do you take something like a care framework or commitment to the commons and sign up for it? Like where? And so, I’ve been using the licenses that way for myself.

And partly as a way of now at this point, I’m working with a lot of institutions who are interested in making institutional commitments to open. And that’s really hard, because you have to encapsulate that in some way. And so, a lot of times I’ve been drawing on licensing as a way of talking about one way that we can represent what it looks like to commit to these ideals.

And that may be problematic, I know some people I really trust in open, when I start going this direction they’re always like, “Stop talking about licensing, then. Just stop talking about licensing, ’cause that’s not what you’re talking about.” So, and I get that, too. But I might just go back for a second, in the chat a little ways to Robin Sitten, my buddy, hi, Robin.

She says, “I’m really interested in the ethics of revising an open resource” and talks about Maha touching on this.

She’s interested in how much modification on an open resource is acceptable before it truly changes, like a game of telephone. And I think what she’s getting at there is what are the ethics of that? And in what context are there some real ethical challenges? In some cases that might be exactly what you want to happen, in other cases that might be more challenging. I don’t know if anybody wants to? Maha, if you want to speak to that? It’s a good question.

Karen: It is a great question, Robin. I’m sorry to insert myself here. But Cable has to go, and I know he wanted to make a comment about the funder question with open licenses. So, Cable, before you have to dash, do you want to pop in again about that?

Cable: Sure, thanks. And I can stay until I’m called (laughs), so if you lose my video, then Jennryn’s here and can answer questions as well. So, apologies if I have to jump out. Yeah, well, first Maha makes a really important point, right? These are not black and white issues, these are nuanced, and these should be nuanced issues. And part of the ways that Creative Commons tries to support the nuances is by having a full license suite.

Another thing we do specifically with vendors around the nuanced, and I’m going to share a resource in the chat, is that particularly with foundations there’s always nuance. Because they are working with grantees all over the world, in a whole variety of different contexts. And so, Hewlett’s a good example, where their default license requirement is CC BY. But all Hewlett program officers have permission and the full backing of their general counsel’s office to negotiate different CC licenses, when need be.

So, I’ll give you an example, well, I probably shouldn’t list the name of the grantee. I’m working with one of the Hewlett grantees right now, that doesn’t want to use CC BY. And they have some really good reasons. And so, the Hewlett foundation brought me in, they asked the grantee to list what their reasons were. And the grantee did that, and I read them, and I said, “Hey, I think the grantee’s got a really good case here, CC BY doesn’t work well.”

And the grantee wanted a mix of BY NC, BY SA on some stuff, and some BY NC SA on other things. And they had really thought about it, and they had good rationale and so Hewlett came back to me and said, “What do you think?” And I said, “Hey, I think you should let the grantee do what they want to do.” And so, the resource that I shared is a toolkit that we work with the Hewlett foundation to actually train their staff about these nuanced conversations.

Now, this grantee that I just worked with really, I thought was very thoughtful and had good reasons, and so got the licensing that they want. It’s also true that a lot of grantees will go to foundations and say, “Hey, I’m trying to sell what I’m getting the grant for, and so I want to put NC on everything. And I don’t want to do CC BY.” And a lot of times foundations will push back on that. And we tend to stay out of those conversations, to the extent that we get involved, we simply say, “Here’s how NC works, and here’s how it doesn’t work.

(Laughs) And here’s how it might protect your business interests, and here’s where it really doesn’t, where people can give away NC content as a loss later.” And so, we try to stay very factual, as a third party describer of the licenses, but we work with foundations. Now, governments are a bit different, governments don’t like nuance. Governments prefer a lot of black and white, they’re writing a policy, they want to do it once.

It’s not going to get looked at again for five or 10 years. And they also just don’t have the capacity to negotiate with grantees. So, for example, the US Department of Education, when they give out block grants, they’re giving out usually $4 billion or $5 billion at a time. And they have a CC BY requirement on that stuff, now. They don’t want to negotiate with a thousand different grantees about what license they want. They just don’t have the staffing for it.

And they also have strategic interests, it’s very interesting in governments, one agency or department in the government will give out grants and they want that to be reused and remixed by other agencies and departments. Sometimes within country, sometimes across countries. We’ve worked regionally with sets of governments before that want to have cooperation.

So, for example, Nepal and Bangladesh right now are talking with each other at ministerial levels of education and they want to, to the extent possible, use the least restrictive possible license that both parties will agree to, to make remix and revision easier across boundaries and regionally. So, it’s all very complicated, we try to encourage flexibility everywhere where flexibility can happen, as long as it meets the strategic goals of the funder and the needs of the grantees.

Karen: Thanks Cable. If you could maybe say a little bit more about the NC clause? Both Naomi and Diane in the chat just wanted to hear a little bit more about objections to NC conversations around it. Amada, you may also have some thoughts on how you talk to faculty around NC and just that definition generally.

Cable: Sure, so NC to be totally honest frustrates people because Creative Commons in the license is very vague about NC. So, we version the licenses, I think everybody knows. We’re on version four right now, for the international licenses. And then, we have the IGO ports for the International Government Organizations that if there’s a dispute they don’t go to court, they go to arbitration in The Hague, which is why we have to have a special license for IGOs.

Nevertheless, every time licenses get versioned, it’s an international conversation of the open community that everybody gets to chime in and say what they want. When we versioned to four, I’d say a third of the global community said, “Hey, you need to get specific about NC, say what it is, say what it isn’t.” The other two thirds of the community said, “No, we actually like the vagueness, because as communities of practice, we have as communities decided what the norms are.”

So, for example, many people in the open education community came forward and said, “Look, we actually like the vagueness of NC, because we take NC licensed work, we walk them into our college bookstore, we print them at cost. No profit, but we print them at cost, and we’re able to sell them at cost. And even though that’s a commercial transaction as a community, we’ve decided that non-profit means non-commercial.”

Now, would that actually hold up in a court of law? Nobody knows, it hasn’t gone to court, yet. But the community has made that choice, and so in that case, the community said, “Look, we like the vagueness.” Now, other people feel differently about NC. A lot of people misunderstand NC, so when people ask me what license should I choose? And they get down to a few and I say, “You should know how NC works in the community, and how it doesn’t.” So, a lot of people that say, “I hate the idea of a commercial entity using my work.”

Oftentimes, what they don’t understand is that a commercial entity could take an NC work and give it away for free, as a loss later. And so, I talk with big publishers all the time, just to find out what they’re doing with OER. And I always ask them, ” Why don’t you use anybody else’s OER?” Because for the most part, they don’t. There are some platforms which have brought OER in, but the big textbook publishers haven’t done a lot of appropriating of OER. And I ask them, “Is it NC?”

And they say, “Nah, if we wanted to use NC, we would give it away and we’d sell our textbook on the side. We give the NC away as a loss later.” Is it SA? Are you afraid of the viral nature of SA? Well, not really, we do that, we give it away on the side. And we’d sell something over here. What they’re really afraid of is attribution, because they don’t want to lose eyeballs.

They don’t want to send people out and they certainly don’t want to charge for something that Robin DeRosa created when they have to give an attribution statement and a link back to Robin. And now, they’re going to have upset customers, because they’ve paid Pearson and they could have gotten free from Robin. And Robin’s is the master copy, anyway, which has more credibility.

And so, the other confusion with NC that we see often, is people say, “Oh well, I work at either a private primary or secondary school that charges tuition, or a university or college that charges tuition. And because we charge tuition, that’s commercial, you can’t get into my class without paying tuition. And therefore, I can’t use NC licensed OER.” Which is not true at all, you just can’t sell access to the OER, so that confusion space it’s a little tricky.

And then, of course, I mentioned the court case in the US right now, which is a big deal, it’s in the ninth circuit court. This is a case where there was public money, there was the open policy, the open license requirement got screwed up, if we’re honest by the public governments. The copyright went to the commercial vendors that did the work. And then, the commercial vendors decided to put a BY NC SA license on the work.

Okay, fine, it’s still OER. And then, the school districts in the United States which were using this work in mass. 85% of the school districts in the United States are using this OER, it’s an incredible success story in terms of adoption. And then, the publisher, the copyright owner of the work, sued the printers, in this case FedEx and Office Depot, both of them, they’re two different lawsuits.

Because they said that was a violation of a non-commercial license, which we said it wasn’t, and the judges so far have said it wasn’t. But my point of telling this story is that in this case, NC caused a tremendous amount of friction in the ecosystem. To the extent that just anecdotal evidence that we have is that there are probably six or seven US states which have not adopted this OER.

And were about to, but because there was a lawsuit and they don’t want to get wrapped up in any court case. And their lawyers have said, “Stay away from it.” That’s been unfortunate. And so, this is a unique case, that NC has caused some difficulties, but nevertheless it’s real.

Maha: But can I just say that I think part of the problem is that NC is a vague license? Even when I talk to you or to David Wiley or someone. NC does have a lot of meanings. And someone in the chat, I think Diane Hamilton was saying, the distinction between non-profit and non-commercial. When we were discussing our textbook with Rebus, we were like, “Can’t we clarify what we mean, when we say NC?”

Because people mean different things. And we’re not allowed within those licenses to do a sub-license. I don’t mind if you use it for educational use, even if it’s a commercial educational use. But I do mind if you sell it, but I don’t mind. If we have this number of licenses, it’s confusing for people who are not us, anyway. Maybe a lot of people in this room understand the licenses relatively okay.

But if we’re going to then allow that nuance, maybe it’s nitpicking, and yeah, licenses are not the main thing. But if people are going to understand them differently, why not allow people to clarify what they want to do with the work?

Cable: Yeah, it’s a really interesting point. And people actually do, so they kind of started well, so there’s I always tell people there’s the legal answer, and there’s the community answer (laughs). So, in this particular case, the legal answer is you can’t adjust the terms of a CC license and still have it be a CC license. So, even though our licenses are all dedicated to the public domain, so anybody could take them and write new licenses if they want to.

What you can’t do is call them a CC license if you change them, because that’s under trademark and we protect our trademark. We do that so that the licenses work everywhere, and they’re recognizable and everybody knows that they work the way that they’re supposed to. So, I lost my train of thought. Maha ask me again.

Maha: I think it’s clear, you’re saying you can’t legally put a different license, but you could I think Jennryn’s also saying the same thing, you could write out something else.

Cable: Yeah, so what people…

Maha: Call this. [inaudible 0:46:39] Writing about it. That even though I’m saying that, I actually allow you to do this? Or the opposite? Yeah, I guess are the legal ones more restrictive? Promise not to sue them.

Cable: So, let’s take attribution as an example. Attribution, the license legally says that the user of the work can provide attribution in “a reasonable way”. So, reasonable says there’s lots of ways I could do it. Now, there are a lot of authors, or copyright holders that say, “Hey, here’s exactly how I would like to receive attribution.” So, Open Stax does that, for example. Open Up Resources says, “On every page of our work, we want to see this attribution statement.”

Is that legally required by the license? Absolutely not. Has the community accepted that additional condition? Yes, they have. And people say, “Hey, you gave a gift to the commons, we want to respect your ask.” NC is another example, so Robin was talking about the symbolic nature of the licenses. When people want to signal to the community that they really don’t want people to get anywhere near their work with anything that smells commercial at all, NC is a great way to do that.

Even though legally NC may not protect in the ways that they think it will, it’s certainly a signal to send to the community. Share Like same thing, so people think Share Like is more viral than it is. So, what I mean by that is a lot of people believe that if I take your Share Like work and I revise it, or remix it, that I have to not only license my work SA, which I would. But that I have to share it back publicly, or even that I have to share it back with the original author.

None of those are requirements in the license, I don’t have to share it back publicly, if I don’t want to. And I certainly don’t have to contact the copyright holder. Is there that community expectation that people do that? Yeah, there kind of is, especially when people ask. So, I think Robin opened with a really important point, which is what’s the world and what’s the ecosystem that we’d all like to build?

And let’s start with those values and principles, and I think that there’s a whole lot of licenses which we can use that get us to those principles. And Maha, to your point, it’s not one license, it’s a mix of licenses. And just personally, I’m very comfortable with what the OER open ed ecosystem has done over the past 15 years, which is to say, “Look, these four CC licenses and public domain really work for open education.

So, let’s all be flexible and yeah, there’s going to be reasons to pick one license over the other. But these four licenses plus public domain work really well.”

Karen: All right. Great conversation. So, we have about five minutes left. Diane asked how often we hold Office Hours? And the answer is monthly, we can certainly get you on a list, so you’re notified for the following topics. I think we’re taking December off. Do I remember that right, Zoe? So, 2019 Office Hours. Anyone want to continue this NC part, or do we want to bounce back to Robin’s comments several minutes ago, exploring the ethics of remixing and revising? Or where are we at here?

Robin: I can say one thing to the second question, to go back to Robin Sitton’s thing. I still find the question that I get asked all the time, a really interesting one my students ask me it all the time, which is like, “Well, what if I make this thing, and then somebody uses it to do the opposite of what I was trying to do with it? Like they use my work, especially politically to make the opposite argument, or in some way do an intervention that I completely find abhorrent.”

I don’t have the answer to that, but I know it’s one of the things that most interests new people when they’re in the situation of choosing a license. It’s why people drift towards ND, I think. And I think for me, being in open because of my political investments, that actually becomes a pretty interesting question. So, my on the ground answer is usually that’s part of open, is that it’s not a conflict free zone, and it’s tricky and troubling.

And the commons is not always pretty in order to be functional. So, I get that, but I also am very sensitive to that question. So, I don’t know if people have things to say about it, but I just to put it out there that it’s unresolved and interesting to me.

Karen: Yeah, it’s a great question to put out there. I’ll also point out Cable’s comment in the chat that all Creative Commons licenses have two protections, which include the copyright holder can require the attribution statement be removed. There are cases of this in the Open Textbook Library for example. And second, under no circumstances can the user of the work say the copyright holder endorses this new revised version of the work.

Of course, those two things may be true, but sometimes when someone’s skimming something or they see it quickly or it’s online, they may not take the care that we would all hope would be there. Jim is saying, “Robin’s raising a great point, especially as we’re moving into new territory with video and audio stuff that can mimic original, but entirely fake and opposite comments. Like fake Obama speaking videos, based off videos of him.”

Yeah, these are complex times, so much is possible with technology, that makes this especially murky. And these same topics are popping up in the news as well. So, there are frequently asked questions to that point it looks on the Creative Commons website. I think that with three minutes left, we should probably start wrapping up, unless somebody would like to pick up this thread, or have any last comments?

Zoe: I just want to say that the conversation ongoing in the chat as well has been really fantastic, and so we’re going to try to capture some of this to draw it out, ’cause it’s been two events happening that have been really, really wonderful. So, thank you to everyone, to our guests and to those of you who’ve been chiming in in the chat, it’s been a really wonderful conversation, thoroughly enjoyed it, thank you.

Karen: Absolutely, and we definitely pay attention to the community’s questions and interaction when we hold Office Hours, so we can continue elements of this conversation. Have a second part, somewhat based on your interest and demand and what you’re dealing with in your professional lives. That’s what we’re here to do together is talk through these sticky things and find best practices, if there are any.

So, thank you all for joining us, featured guests and community members alike. It’s really great to hear your questions and your perspectives and dig into some of these issues. I’d like to thank Rebus for partnering again with the OTN on these conversations. And if you have other topics that you would really like to see explored in 2019, you’re invited to put those in the chat, or contact one of us.

Let us know what you’re dealing with, that you would love to hear how others in the community are dealing with. We can do that. So, we are at the hour, and I think it’s time to thank everyone again, and say our farewells. So, farewell.

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