16.3: Open Licences for Non-Software Material

The success of open licence software led to an interest in using open licences for non-software material and especially for educational and scientific material. The list of individual and institutional signatories to the Cape Town Open Education Declaration of 2007 (www.cape towndeclaration.org/) shows how much support there is for open licence educational resources (OERs).

Early Open Licences

Open licences for non-software material came some time after open licences for software. The earliest such non-software open licence may have been the Open Content Licence that David Wiley of Open Content published in July 1998. The following year, in June 1999, the Open Content Project published the Open Publication Licence.

GNU FDL

In March 2000 the Free Software Foundation released version 1 of the GNU Free Documentation Licence (the FDL). The FDL was meant for software developers writing manuals and documenting their work but it can be used for other forms of material. Wikipedia, for example, uses the FDL. A revised version, FDL version 1.2, appeared in November 2002 and the Free Software Foundation is working on version 2. The FDL, like the GPL, allows for commercial publishing. If, however, the GNU website list of 30 or so commercially published FDL books is complete (gnu.paradoxical.co.uk /doc/other-free-books.html), FDL material is not yet as attractive to commercial publishers as the GPL software is to commercial software developers.

Creative Commons Licences

Open licences for non-software material began to attract serious attention in 2001 when Lawrence Lessig and others started Creative Commons (CC). The CC licences are now the most important open licences for non-software material.

CC rights

The CC licences are based on the CC analysis of copyright rights. This distinguishes between four rights of a copyright holder. The CC website lists and explains these rights:

“Attribution. You let others copy, distribute, display, and perform your copyrighted work—and derivative works based upon it—but only if they give credit the way you request.”

“Noncommercial. You let others copy, distribute, display, and perform your work—and derivative works based upon it—but for noncommercial purposes only.”

“No Derivative Works. You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.”

“Share Alike. You allow others to distribute derivative works only under a license identical to the license that governs your work.”

All the CC licences include what CC calls the “Baseline Rights”. These are the rights to copy, distribute, display, perform publicly or by digital performance and to change the format of material.

CC licences

In theory the four CC rights, used singly or combined, allow for eleven different possible licences. In practice CC offers only six licences. These licences allow copyright holders to grant users different combinations of the CC rights. This flexibility makes the CC licences more attractive to authors than the all-or-nothing open licences that are usual for software. As the CC website says:

Creative Commons defines the spectrum of possibilities between full copyright—all rights reserved— and the public domain—no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work—a “some rights reserved” copyright.

The CC website has a diagram that shows the spectrum from copyright to public domain with CC licences occupying the space between these two:

Figure \(\PageIndex{1}\)

CC also takes into account that copyright law differs from country to country. As well as a generic or unported version of each licence CC aims at providing a version, in the appropriate language, adapted to the law of each country where the CC licences are used. This means there is no one CC licence in the way there is one GNU GPL. With CC licences it is always necessary to specify which national version of the CC licence is being used, and, in some cases, the language version of the licence.

In addition to the CC licences, CC provides a form for an author to place a work in the public domain. This is only legally possible in some countries. CC also has a procedure for recreating the original US copyright term of 14 years.

CC uses symbols and abbreviations to represent the four rights of a copyright holder and combines these symbols and abbreviations to represent the different licences. The names, abbreviations, and symbols of the six CC licences give some idea of the complexity of the CC licence system:

• Attribution Non-commercial No Derivatives (by-nc-nd)
• Attribution Non-commercial Share Alike (by-nc-sa)
• Attribution Non-commercial (by-nc)
• Attribution No Derivatives (by-nd)
• Attribution Share Alike (by-sa)
• Attribution (by)

CC licence generator

The text of the CC licences and their different language versions is on the CC website. The CC website does not, however, expect users to study every licence before choosing one. Instead, there is a licence generator that suggests the appropriate CC licence based on the answers to following three questions:

• Will an author allow commercial use of the work?
• Will an author allow users to modify the work? (Included under this question is the possibility of allowing users to modify the work if they share alike.)
• In which jurisdiction does an author want to license the work?

The questions are a convenient starting point for commenting on the six CC licences.

Jurisdiction

It is useful to start with the third question on the jurisdiction of the licence. If a work will be used mainly in one country an author should select that country. If an author is publishing a work internationally or if there is no licence for the country in which the author is publishing, the author should answer ‘unported’. The unported version of a licence is a generic, international licence. The following discussion of the other questions will refer to the unported versions of the licences.

Restriction on commercial use

The first question the licence generator asks is: “Allow commercial use of your work?” If the copyright holder does not want to allow commercial use of the work the licence generator suggests a non-commercial (NC) licence. What this means is that a copyright holder who finds individuals or institutions making commercial use of the work can take legal steps to stop them doing this. But what does non-commercial mean? Section 4b of the unported CC Attribution-Non-Commercial 3.0 licence says:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

One view of what this means, often forcefully expressed in workshops and discussion groups, is that noncommercial means that no money should change hands. This is not, however, the usual meaning of noncommercial. It is not a commercial transaction, for example, to refund someone for buying me a loaf of bread or even to pay that person’s travelling expenses. It only becomes commercial if that person wants to make a profit out of providing this service. It follows that someone who distributes an NC work should be able to charge to recover expenses incurred in distributing the work. These expenses, typically, would include copy charges, salaries and overhead expenses. The only restriction is that anyone doing this does not intend to make a profit out of distributing the work. This is the view of the Draft Guidelines that CC published to try to clarify the meaning of non-commercial. (“Proposed best practice guidelines to clarify the meaning of ‘noncommercial’ in the Creative Commons licenses” available at wiki.creativecommons.org/DiscussionDraftNon Commercial_Guidelines)

There is still some uncertainty, however, about what “primarily intended for or directed toward commercial advantage or private monetary compensation” in section 4b means. It could be argued that even if a project does make a profit, the use is still non-commercial if the project was not primarily intended to make a profit. According to this view, an organization that is run for profit may use NC material and may recover its expenses for distributing NC material provided the project using the NC licensed material does not aim at making a profit.

This raises questions such as whether private schools run for profit or public broadcasters that accept advertising revenue may use NC-licensed material for teaching or informing their viewers? (See Mikael Pawlo, “What is the meaning of non-commercial” in Danièle Boucier & Mélanie Dulong de Rosnay, International Commons at the Digital Age: La création en partage 2004 Romillat, Paris 69 at 78–82. Available at fr.creativecommons.org/iCommonsAtTheDigitalAg e.pdf) Another question is whether a business whose profits support a non profit body such as a university may use NC material. The Draft Guidelines appear to prohibit using NC material in these ways. Section C(2) of the Draft Guidelines, for example, says that it is not non-commercial if money changes hands to, for example, a for-profit copy shop. Section A(1)(b) insists that an educational institution or library using NC material must be nonprofit. And section B appears to classify as commercial any use of NC material in connection with advertising.

What the Draft Guidelines say, however, does not settle the matter. The Draft Guidelines are not part of the NC licence. As section 8e of the NC licence says: “This License constitutes the entire agreement between the parties with respect to the Work licensed here.” And a notice at the end of the licence says “Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work.” The Draft Guidelines themselves do not claim to be an authoritative. CC published them to “elicit feedback about whether these guidelines accurate reflect the community's (including both licensors and licencees) understanding of the term”. This means that what the Draft Guidelines say should be treated with respect but any dispute between a copyright holder and a user can only be settled on the basis of what the licence says. This raises the question whether any ambiguities in the wording of the licence should be interpreted strictly, to limit the use of NC material, or generously, to allow the widest use of a work.

CC plans to return to the question of the meaning of non-commercial. It would be helpful to know what authors who use the NC licence really want to achieve. They do not want royalties for their work but they do, presumably, want the work to be made widely available. If these authors object to associating their work with commerce in any way, the Draft Guidelines should be followed. If, on the other hand, these authors want only to avoid commercial interests taking over and restricting access to their work, the authors may be prepared to allow their work to be used by organizations or individuals working for their own profit provided they do not limit further distribution of the CC work. And this could be achieved by using a SA ShareAlike licence.

As with all the CC licences, it is always possible for a commercial user to approach the author of a work directly and ask for permission to use CC licensed work in a way the CC licence does not cover.

Modifications allowed

Once a user has decided whether to allow commercial use, the licence generator’s second question is: “Allow modifications of your work?” There are three possible answers to this question: “Yes”, “No”, and “Yes as long as others share alike”.

Particularly where the licensed material is educational material, users are likely to want to modify it by adding examples and other material, by translating it into another language or adapting it in some other way. The licence generator will suggest that those who want to allow users to modify their material use either a simple attribution (BY) licence or an attribution non-commercial (BY-NC) licence. Which it suggests will depend on the answer to the first question: “Allow commercial use of your work?”

The simple attribution licence, not combined with a NC restriction, allows a user to do anything with the material except claim copyright in it or authorship of it. A user may modify the material or leave it as it is and market the modified or original material commercially and keep any profit.

No modifications

If the answer to the licence generator’s second question “Allow modifications of your work?” is “no”, the licence generator will suggest an ND (no derivate works) licence. The human readable summary of version 3 of the unported Attribution-No-Derivs licence says: “You may not alter, transform, or build upon this work.”. The legal code prefers to speak of not adapting a work. Section 1a defines adaptation as:

a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered an Adaptation for the purpose of this License.

This means that a ND licence allows users to use, reuse and distribute a work but not adapt it.

There are situations where an ND restriction is necessary. If a work is a report or set of standards, it makes sense to insist that it is only used in its original form. Changes to a work of this sort destroy its value. Even valid corrections can be harmful because they give readers a false impression of the accuracy of the original report.

The ND restriction is also necessary if an author wants to distribute a work for comment while reserving the right to publish the final version of the work.

Some educators dislike the ND restriction and say it makes it difficult for them to use material most effectively. But the ND licence does allow for an ND work to be used in a collection. (Some versions of the ND licence call this a collective work.) Section 1b of the legal code defines a collection as:

a collection of literary or artistic works, such as encyclopedias and anthologies, or performances, phonograms or broadcasts, or other works or subject matter other than works listed in Section 1(f) below, which, by reason of the selection and arrangement of their contents, constitute intellectual creations, in which the Work is included in its entirety in unmodified form along with one or more other contributions, each constituting separate and independent works in themselves, which together are assembled into a collective whole. A work that constitutes a Collection will not be considered an Adaptation (as defined above) for the purposes of this License.

This means that provided the ND work is reproduced whole and unmodified it can be published in a collection with a commentary or other relevant material. It is not clear whether it would be permissible to use hyperlinks to take a user directly to parts of an ND work or to connect an ND work to a commentary or other material.

Section 4 of the legal code goes into detail about how an ND work can be incorporated into a collection and how the work must be credited. It is possible to assemble a collective work consisting of materials carrying different licences. A collection may also, if it is sufficiently original, qualify for copyright protection and for its own licence which does not have to be an ND licence. When this happens the collective work’s licence will not change the licences attaching to the components in the collective work.

Share Alike

If the answer to the licence generator’s second question “Allow modifications of your work?” is “Yes, as long as others share alike” the licence generator suggests a share alike (SA) licence. This ensures that modified works based on the licensed material are available to others under the same conditions as the original work. The share alike licence offers authors the possibility of making their work “viral” in a way that is similar to the GPL. Version 3 of the unported of the Attribution-Share-Alike licence says:

You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-Share-Alike 3.0 US); (iv) a Creative Commons Compatible License. The CC’s symbol for share alike is almost exactly but not quite the same as the FSF’s symbol for copyleft.

Attribution

All the CC licences require what CC calls attribution. The human readable summary of version 3 of the unported Attribution licence explains what attribution means:

You 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)

Changing or withdrawing a licence

The CC licences all say the licence is for the duration of copyright and only ends if the person holding the licence breaks the terms of the licence. Section 7b of version 3 of the unported Attribution licence, for example, says:

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

Whether an author can stop those who have not begun using the material, from acquiring rights in terms of the original licence is an awkward question. Section 8a of the licence suggests that an author cannot do this:

Each time You Distribute or Publicly Perform the Work or a Collection, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

There is a problem with this clause in that the identity of the “relevant third party” is unknown until someone begins to use the work. This means that an author is bound to an uncertain person. Not every legal system accepts that this is possible. If an author does withdraw a licence this will not affect the rights of those who had previously begun to use the material.

Concluding comments on CC licences

There was no CC equivalent to the GNU Manifesto although there is now a “Free Content and Expression Definition” that may serve as a manifesto. It seems, however, that what the founders of the CC movement had in mind was a community producing material that it would make available under the CC licences in the same way as there are communities of software developers. making software available under different licences. There two features of the CC licences that might hinder this.

First, the system of CC licences is complex and, as has been shown, the meaning of the licences is not always clear. A pre-publication review of this chapter advised against publishing some of the comments for fear that they might weaken confidence in the CC licences. It seems, however, that long-term confidence in the CC licences will only be possible when difficulties of the sort this chapter raises have been resolved.

Second, and possibly more importantly, authors and educators ‘need to eat’. Those in regular employment and those supported by public or private grants may be happy to use the CC licences. But authors earn their living from their work might be reluctant to use the CC or any other open licence. Commercial publishers, whether they publish traditionally or online, are unlikely to want to pay authors for the rights to publish a work that is already freely available. And it is difficult to see how there could be a commercial use for non-software open-licence material in the way there is for open licence software.

Other Non-Software Open Licences

Some authors draft what are, in effect, their own open licences. This can be done quite simply. So, for example, the copyright notice on the Antiquarian Horological Society’s Website (www.ahsoc.demon.co.uk/) reads:

The material in these pages is copyright. © AHS and Authors. 1996 – 2007. The information may be downloaded for personal use only. The information may be passed on to another party for their private use provided that the source and this copyright information is acknowledged. The material may not be reproduced in quantity, or for commercial purposes.

Open licence drafting, however, is not always a simple matter and not every home-grown licence is free of problems. The United Nations Disaster Management Training Programme, for example, has the following licence on some of its training material:

The first edition of this module was printed in 1991. Utilization and duplication of the material in this module is permissible; however, source attribution to the Disaster Management Training Programme (DMTP) is required.

In this licence it is not clear whether ‘utilization and duplication’ includes making derivative works and using the material commercially for profit.

The African Medical Research Foundation, to take another example, has licensed some of its educational material with CC Attribution-Share Alike licence. The Foundation then goes on to explain that copying, reproducing and adapting the material is “to meet the needs of local health workers or for teaching purposes”. It is not clear if this limits the CC licence. The Foundation also asks, although not as a term of the licence, for feedback on how the material is being used:

This course is distributed under the Creative Commons Attribution-Share Alike 3.0 License. Any part of this unit including the illustrations, may be copied, reproduced or adapted to meet the needs of local health workers or for teaching purposes, provided proper citation is accorded AMREF. If this work is altered, transformed or built upon, the resulting work may be distributed only under a license identical to this one. AMREF would be grateful to learn how you are using this course, and welcomes constructive comments and suggestions.