Three weeks ago we reported that Diego Gómez, the former Colombian student who’s been prosecuted for sharing a research paper online, had been acquitted of criminal charges.
But within days of the ruling, the author’s lawyer appealed the decision, meaning that even after several years of unnecessary (and expensive) criminal proceedings, Diego’s case continues to the appellate court—the Tribunal of Bogotá. The prosecution of Gómez is an egregious example of copyright overreach where rights holders can unfairly leverage the law so that even a minor violation leads to major negative repercussions for both the individual involved, and society as a whole. Students shouldn’t be subject to lengthy and stressful lawsuits for sharing knowledge.
Diego needs our help. Fundación Karisma, the Colombian digital rights organisation that’s been supporting Diego since the beginning, is launching an Indiegogo crowdfunding campaign to pay for the ongoing legal expenses. The campaign—titled Compartir no es delito: Sharing Is Not A Crime—is now live and aims to raise $40,000.
The U.S. Department of Education’s new open licensing rule has gone into effect. Starting in FY 2018, education resources created with Department of Education discretionary competitive grants ($4.2 billion in FY 2016) must be openly licensed and shared with the public. Creative Commons (CC) congratulates the U.S. Department of Education for ensuring the public has access to the education resources it funds.
This announcement comes after years of work by Department of Education staff, multiple civil society organizations, and individual open education leaders.
CC’s involvement began in October 2015, when we joined the Department in calling for a new rule to require publicly funded education resources be openly licensed by default. A few months later, CC and other open education leaders submitted comments supporting the proposed rule. When the implementation of the rule was delayed, a coalition of open education organizations submitted additional comments in support of implementing the change.
This new Department of Education open licensing rule follows the example set by the Department of Labor agency-wide CC BY open licensing policy, the Department of State’s open licensing playbook for federal agencies, and multiple other open education licensing policies from around the world. While the rule does not specify the use of a CC license by name, it provides guidance on what attributes the open license needs to contain (see below).
Grantees must openly license to the public any grant deliverable that is created wholly or in part with Department competitive grant funds.
Grantees must grant to the public a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable license to access, reproduce, prepare derivative works, publicly perform, publicly display, and distribute the copyrightable work provided that attribution is given to the copyright holder.
The open license also must contain a symbol or device that readily communicates to users the permissions granted concerning the use of the copyrightable work; machine-readable code for digital resources; readily accessed legal terms; and the statement of attribution.
Grantees may select any open licenses that comply with the requirements of this section, including, at the grantee’s discretion, a license that limits use to noncommercial purposes.
A grantee that is awarded competitive grant funds must have a plan to disseminate the openly licensed copyrightable works created with grant funds.
The rule does not apply to:
funding for general operating expenses;
support to individuals (e.g., scholarships, fellowships);
grant deliverables that are jointly funded by the Department and another Federal agency if the other Federal agency does not require open licensing;
copyrightable works not created with Department grant funds;
peer-reviewed scholarly publications funded by the Department;
grantees under the Ready To Learn Television Program; or
a grantee that has received an exception from the Secretary of Education.
We celebrate this step forward and look forward to helping the Department implement this commitment to openness!
The new book Open: The Philosophy and Practices that are Revolutionizing Education and Science, edited by Rajiv Jhangiani and Robert Biswas-Diener, features the work of open advocates around the world, including Cable Green, Director of Open Education at Creative Commons. This excerpt from his chapter, “Open Licensing and Open Education Licensing Policy,” provides a summary of open licensing for education, as well as delves into the philosophical and technical underpinnings of his work in “open.”
Read and download the entire book via Ubiquity Press and follow Cable on Twitter @cgreen.
Open Licensing
Long before the internet was conceived, copyright law regulated the very activities the internet, cheap disc space and cloud computing make essentially free (copying, storing, and distributing). Consequently, the internet was born at a severe disadvantage, as preexisting copyright laws discouraged the public from realizing the full potential of the network.
Since the invention of the internet, copyright law has been ‘strengthened’ to further restrict the public’s legal rights to copy and share on the internet. For example, in 2012 the US Supreme Court on upheld the US Congress’s right to extend copyright protection to millions of books, films, and musical compositions by foreign artists that once were free for public use. Lawrence Golan, a University of Denver music professor and conductor who challenged the law on behalf of fellow conductors, academics and film historians said ‘they could no long afford to play such works as Sergei Prokofiev’s “Peter and the Wolf,” which once was in the public domain but received copyright protection that significantly increased its cost.’
While existing laws, old business models, and education content procurement practices make it difficult for teachers and learners to leverage the full power of the internet to access high-quality, affordable learning materials, OER can be freely retained (keep a copy), reused (use as is), revised (adapt, adjust, modify), remixed (mashup different content to create something new), and redistributed (share copies with others) without breaking copyright law. OER allow the full technical power of the internet to be brought to bear on education. OER allow exactly what the internet enables: free sharing of educational resources with the world.
What makes this legal sharing possible? Open licenses. The importance of open licensing in OER is simple. The key distinguishing characteristic of OER is its intellectual property license and the legal permissions the license grants the public to use, modify, and share it. If an educational resource is not clearly marked as being in the public domain or having an open license, it is not an OER. Some educators think sharing their digital resources online, for free, makes their content OER — it does not. Though it is OER if they go the extra step and add an open license to their work.
The most common way to openly license copyrighted education materials — making them OER − is to add a Creative Commons license to the educational resource. CC licenses are standardized, free-to-use, open copyright licenses that have already been applied to more than 1.2 billion copyrighted works across 9 million websites.
Collectively, CC licensed works constitute a class of educational works that are explicitly meant to be legally shared and reused with few restrictions. David Bollier writes:
‘Like free software, the CC licenses paradoxically rely upon copyright law to legally protect the commons. The licenses use the rights of ownership granted by copyright law not to exclude others, but to invite them to share. The licenses recognize authors’ interests in owning and controlling their work — but they also recognize that new creativity owes many social and intergenerational debts. Creativity is not something that emanates solely from the mind of the “romantic author,” as copyright mythology has it; it also derives from artistic communities and previous generations of authors and artists. The CC licenses provide a legal means to allow works to circulate so that people can create something new. Share, reuse, and remix, legally, as Creative Commons puts it.’
While custom copyright licenses can be developed to facilitate the development and use of OER, it may be easier to apply free-to-use, global standardized licenses developed specifically for that purpose, such as those developed by Creative Commons.
Fig. 1: Annual Growth of CC licensed works.
Open Education Licensing Policy
This section explores how public policymakers can leverage open licensing policies, and by extension OER, as a solution to high textbook costs, out-of-date educational resources and disappearing access to expensive, DRM protected e-books. Education policy is about solving education problems for the public. If one of the roles of government is to ensure all of its citizens have access to effective, high-quality educational resources, then governments ought to employ current, proven legal, technical, and policy tools to ensure the most efficient and impactful use of public education funding.
Open education policies are laws, rules, and courses of action that facilitate the creation, use or improvement of OER. While this chapter only deals with open education licensing policies, there has also been significant open education resource-based (allocate resources directly to support OER), inducement (call for or incentivize actions to support OER), and framework (create pathways or remove barriers for action to support OER) open education policy work.
Open education licensing policies insert open licensing requirements into existing funding systems (e.g., grants, contracts, or other agreements) that create educational resources, thereby making the content OER, and shifting the default on publicly funded educational resources from ‘closed’ to ‘open.’ This is a particularly strong education policy argument: if the public pays for education resources, the public should have the right to access and use those resources at no additional cost and with the full spectrum of legal rights necessary to engage in 5R activities.
My friend David Wiley likes to say ‘if you buy one, you should get one.’ David, like most of us, believes that when you buy something, you should actually get the thing you paid for. Provincial/state and national governments frequently fund the development of education and research resources through grants funded with taxpayer dollars. In other words, when a government gives a grant to a university to produce a water security degree program, you and I have already paid for it. Unfortunately, it is almost always the case that these publicly funded educational resources are commercialized in such a way that access is restricted to those who are willing to pay for them a second time. Why should we be required to pay a second time for the thing we’ve already paid for?
Governments and other funding entities that wish to maximize the impacts of their education investments are moving toward open education licensing policies. National, provincial/state governments, and education systems all play a critical role in setting policies that drive education investments and have an interest in ensuring that public funding of education makes a meaningful, cost-effective contribution to socioeconomic development. Given this role, these policy-making entities are ideally positioned to require recipients of public funding to produce educational resources under an open license.
Let us be specific. Governments, foundations, and education systems/institutions can and should implement open education licensing policies by requiring open licenses on the educational resources produced with their funding. Strong open licensing policies make open licensing mandatory and apply a clear definition for open license, ideally using the Creative Commons Attribution (CC BY) license that grants full reuse rights provided the original author is attributed. The good news is open education policies are happening! In June 2012, UNESCO convened a World OER Congress and released a 2012 Paris OER Declaration, which included a call for governments to ‘encourage the open licensing of educational materials produced with public funds.’ UNESCO will be convening a second World OER Congress in Slovenia in 2017 to establish a ‘normative instrument on OER.’ OECD recently released its 2015 report: ‘Open Educational Resources: A Catalyst for Innovation’ provides policy options to governments such as: ‘Regulate that all publicly funded materials should be OER by default. Alternatively, the regulation could state that new educational resources should be based on existing OER, where possible (“reuse first” principle).’
As governments and foundations move to require the products of their grants and/or contracts be openly licensed, the implementation stage of these policies critical; open licensing policies should have systems in place to ensure that grantees comply with the policy, properly apply an open license to their work, and share an editable, accessible version of the OER in a public OER repository.
A good example of an open education licensing policy done well is the US Department of Labor’s 2010 Trade Adjustment Assistance Community College and Career Training Grant Program (TAACCCT) which committed US$2 billion in federal grant funding over four years to ‘expand and improve their ability to deliver education and career training programs’ (p.1). The intellectual property section of the grant program description requires that all educational materials created with grant funding be licensed under the Creative Commons Attribution (CC BY) license, and the Department required its grantees to deposit editable copies of the CC BY OER into skillscommons.org — a public open education repository.
A number of other nations, provinces and states have also adopted or announced open education policies relating to the creation, review, remix and/or adoption of OER. The Open Policy Registry lists over 130 national, state, province, and institutional policies relating to OER, including policies like a national open licensing framework and a policy explicitly permitting public school teachers to share materials they create in the course of their employment under a CC license.
New open policy projects like the Open Policy Network and the Institute for Open Leadership are well positioned to foster the creation, adoption, and implementation of open policies and practices that advance the public good by supporting open policy advocates, organizations, and policy makers, connecting open policy opportunities with assistance, and sharing open policy information. Because the bulk of education and research funding comes from taxpayer dollars, it is essential to create, adopt and implement open education licensing policies. The traditional model of academic research publishing borders on scandalous. Every year, hundreds of billions in research and data are funded by the public through government grants, and then acquired at no cost by publishers who do not compensate a single author or peer reviewer, acquire all copyright rights, and then sell access to the publicly funded research back to the University and Colleges. In the US, the combined value of government, non-profit, and university-funded research in 2013 was over US$158 billion — about a third of all the R&D in the United States that year.
As governments move to require open licensing policies, hundreds of billions of dollars of education and research resources will be freely and legally available to the public that paid for them. Every taxpayer − in every country − has a reasonable expectation of access to educational materials and research products whose creation tax dollars supported.
But one European political party wants to weaponize the worst parts of the copyright plan
This week, Creative Commons and over 60 organisations sent an open letter urging European lawmakers to “put the copyright reform back on the right track”. The letter criticizes the Commission’s lackluster proposal for a Directive on Copyright in the Digital Single Market, and calls on the Parliament and Council to spearhead crucial changes that promote creativity and business opportunities, enable research and education, and protect user rights in the digital market. From the letter:
The lawfulness of everyday activities depends on being able to count on a clear legal framework allowing companies to do business across the EU, individuals to access and use cultural goods, researchers to collaborate across borders using the latest technologies, and creators to be remunerated and contribute to Europe’s rich cultural heritage. This clear legal framework implies that the limitation of intermediaries’ liability must be upheld in EU law.
The letter highlights two aspects of the Commission’s proposal that are wholly detrimental to creativity and access to information in the EU. First, it calls for the removal of the new right that would permit press publishers to extract fees from search engines for incorporating short snippets of—or even linking to—their content (Article 11). This would undermine the intention of authors who wish to share without additional strings attached, including Creative Commons licenses. Second, it urges lawmakers to delete the provision that would require Internet platforms to proactively monitor user uploaded content in order to identify and remove copyright infringing content (Article 13).
The letter was signed by stakeholders representing publishers, journalists, libraries, scientific and research institutions, consumers, digital rights groups, technology businesses, educational institutions and creator representatives.
While these organisations have been advocating for positive changes to support the public interest and fair rules for creators, a faction of the European Parliament is proposing alternative amendments to the Commission’s plan that would not only retain the harmful ancillary copyright and upload filtering mechanisms, but make them much, much worse.
Days after we sent our open letter, we learned that the European People’s Party (EPP) is considering “compromise amendments” that could be introduced in the Committee on the Internal Market and Consumer Protection. The changes would further extend the ancillary copyright to last for 50 years (instead of the originally-planned 20), and would also apply to offline uses (original proposal only covered digital). Perhaps most strikingly, their “compromise” would grant protection to academic publications (specifically left out in the Commission’s plan). This would mean that users of scientific and scholarly journal articles would be forced to ask permission or pay fees for including short snippets of a research paper in another publication. This type of arrangement is completely antithetical to longstanding norms in scientific research and scholarly communications.
Regarding upload filtering, the EPP’s proposed changes would remove the liability protections granted to online platforms if that services does anything above and beyond simply displaying user-uploaded content. This would mean that platforms would be forced to heavily filter content, or acquire licenses to protect themselves against the copyright infringement liability passed on by its users.
The vote in the Internal Market Committee is scheduled for 9 June (next week!). If you’re in the EU, now is the time to act. Tell your MEP to say no to these false compromises. Contact an MEP from your country who sits on the IMCO Committee and tell them you expect them to support MEP Stihler’s compromise amendments on the copyright file. A phone call takes no more than a few minutes and can prove very effective. Internet rights NGO Bits of Freedom has created a handy tool that allows you to call MEPs for free.
CC’s community consists of hundreds of individuals and organisations doing awesome stuff worldwide – from spreading the word about licensing to offering specific advice for creators and users, showcasing all aspects of open culture, and influencing policy makers around to globe to encourage them to adopt more open policies.
When we set up the Awesome Fund last year, we wanted to provide microfunding for this wide variety of activities. In the end, we received almost 40 applications – you can find the full overview of all projects we funded on our Wiki. Some projects haven’t finished yet, so this page will be regularly updated. On social media, look for #CCisAwesome for updates on ongoing projects.
CC Francocar workshop
The projects were diverse and exciting, with a number of teams using the funds to strengthen their own team or connect with others. Some highlights:
Having now left my position as Regional Coordinator for Europe, it is with great pride and joy I look back on the Awesome Fund projects. The amount and quality of applications, and the brilliant display of creativity and dedication that they showcase have been truly inspiring. The Creative Commons community is alive and kicking – and ready for the next phase with the ongoing network reform process.
Support Diego by donating today!
