Open Education License

Draft Text

From http://opencontent.org/blog/archives/355:

Introduction

Purpose of the New License

The purpose of the new license is to create a way for people to license their works in such a way that:

• applying the license is easy for authors and understanding the license is easy for users,

• engaging in any of the four Rs of open content can occur in a completely frictionless manner,

• the license imposes no restrictions on licensees, decreasing the chances of accidental discrimination against persons or groups, and

• remixing is well supported, so that licensed content is legally remixable with any other content to which the remixer has rights, whether (c), CC, GFDL, or differently licensed, decreasing license incompatibility problems.

The Approach

In the context of historical approaches to using copyright law against itself, the new license takes the approach of granting licensees all the rights for which they would need a license under current, applicable law. Credit Where Credit is Due

The language of this license draft borrows heavily from the Creative Commons licenses, which only seems appropriate. Adopters of the new license will also be able to use Creative Commons’ RDF metadata in their documents to describe to Google, Yahoo!, and others what rights are associated with their works.

Finally, Raquel Xalabarder has been extremely helpful in clarifying the international issues around the license. And now, on to the draft.

Text

Open Education License Draft

Draft 0.9, August 8, 2007. This is a draft document and is not yet intended for use.

Disclaimer

The OpenContent Foundation is not a law firm and does not provide legal services. Distribution of this license does not create an attorney-client relationship. The OpenContent Foundation provides this information on an “as-is” basis. The OpenContent Foundation makes no warranties regarding the information provided, and disclaims liability for damages resulting from its use.

License

Licensor hereby grants You a worldwide, royalty-free, non-exclusive license to exercise any and all rights in the Work for which You would require a license under current, applicable law, including (but not limited to) the rights to:

• Reuse the work verbatim, just exactly as you found it

• Rework, alter, or transform the work so that it better meets your needs

• Remix and combine the (verbatim or altered) work with other works to better meet your needs

• Redistribute the verbatim work, the altered work, or the remixed work

Representations, Warranties and Disclaimer

Unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable. Some jurisdictions do not allow the exclusion of implied warranties, so such exclusion may not apply to you.

Limitation on Liability

Except to the extent required by applicable law, in no event will licensor be liable to you on any legal theory for any special, incidental, consequential, punitive or exemplary damages arising out of this license or the use of the work, even if licensor has been advised of the possibility of such damages.

Termination

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work).

Discussion

Why Copyleft approaches are problematic for open content

From the Open Content blog:

"Copyleft is an idea borrowed directly from the world of free or open source software, requiring that derivative works be licensed using the exact same license as the original. This insures that when derivatives are created from a copylefted open content work, those children and grandchildren works remain open content, licensed using exactly the same license as the original.

However, while copyleft strictly requires that all future generations of derivative works be free and open, copyleft significantly hinders the remix activity. For example, conservative estimates say that there are approximately 40 million creative works that are currently licensed using a Creative Commons license. About half of these use the ShareAlike clause (Creative Commons’ copyleft clause). Of those creative works that use SA, about two thirds (~13 million) use By-NC-SA, while the other third (~7 million) uses By-SA. While statistics on GFDL adoption are harder to come by, because Wikipedia and the other Wikimedia projects use the GFDL we can safely estimate at least 7 million works are licensed using the GFDL (which contains its own copyleft clause). Since half of all CC licensed materials are licensed using a copyleft clause and all GFDL licensed materials are licensed using a copyleft clause, this means that over half of the world’s open content is copylefted. And while the CC and GFDL copyleft clauses guarantee that all derivative works will be “open,” they also guarantee that they can never be used in remixes with the majority of other copylefted works. You can’t remix a GFDL work with a By-NC-SA work when the licenses require that the child be licensed exactly as the parent. Each parent had one and only one license - which license would the derivative use? It’s just not possible to legally remix these materials; copyleft prevents this remixing.

While promoting rework at the expense of remix - in other words, taking the copyleft approach - is fine for software, it is problematic for content and extremely problematic for education." (http://opencontent.org/blog/archives/355)

Why it is particularly problematic for Open Education

" As educators, we are always remixing materials for use in our classrooms both in the “real” world and online. Your mileage may vary, but over my last 15 years of teaching I would estimate that my remixing activities outnumber my reworking activities 10:1 or more. If other teachers are like me in this regard, then, copyleft is a huge problem for open education. Like the American football coach who tries to use his successful offensive and defensive strategies with a European football (or soccer) team, the open source advocate who brings the successful idea of copyleft into the world of open content will eventually be disappointed. The primary activity of the open source software developer is reworking; the primary activity of the open educator is remixing. Different activities require different supporting strategies to be successful.

If we are serious about wanting the freedom to legally and frictionlessly remix educational materials, we have one of two choices: either ignore the OpenCourseWares, Wikipedia, and other copylefted open content of the world (i.e., work only with open content that isn’t copylefted), or forcibly constrain ourselves to one subset of the “open” content universe. Do you see the irony?" (http://opencontent.org/blog/archives/355)

Public Domain Dedication is not a viable alternative

"If the appropriate goal for a license is, as it appears, to make open content available without any restrictions, why not simply dedicate the works in question to the public domain? There are a number of problems with a public domain dedication (like that offered by Creative Commons). First, dedicating a work to the public domain is a significantly more involved process than licensing a work. While Creative Commons is rightly famous for how easy their license selection technology and little green buttons make licensing your work with a CC license, the public domain dedication is much more complicated and includes a number of steps, including making a request for Creative Commons to send you an email regarding your intent to place a work in the public domain. This rigamarole is not the fault of Creative Commons; they have simplified as much as possible the process of putting a work in the public domain in the US.

But secondly, and more importantly, it may be impossible under the law in some jurisdictions to place a work in the public domain. For example, in the EU authors have certain rights that cannot be contracted or licensed away, making it impossible for an author to legally relinquish all rights to a work (or put it in the public domain). Creative Commons also recognizes this problem with the statement that their public domain dedication “may not be valid outside of the United States.” Hence, a public domain dedication is not an internationally viable mechanism for open content." (http://opencontent.org/blog/archives/355)