OpenFiction [Blog]

Free or Open?

Posted in Uncategorized by scarsonmsm on May 4, 2006

Backtracking a bit to some of the discussion on the UNESCO IIEP-OER forum. The excerpts below are an exchange between me and Derek Keats at the University of the Western Cape. Derek has done some really impressive work in getting a wide-ranging and very thoughtful IP policy put through at UWC, and feels very strongly (as is clear below) that OER should be free and open (in particular should not have non-commercial restrictions associated with it).

In a perfect world, I suppose I agree, but I don’t find it to be a very practical position. Why not? Well, taking tOFP for example, I am not bent out of shape if instructors at universities make use of the material, and the school makes some money in the process, but I do think the material is such that a group like could pretty much take it off the shelf and use it to make money. is a nasty bunch who brought a harassing lawsuit against some old classmates of mine at Emerson, and I’ll be damned if I’m going to allow for the possibility of my work being associated with them. The NC restriction gives me some control over this. Anyway, I think the discussion is helpful in understanding the relevant issues:


SC: Many educators would choose not to share materials without the NC protections. At present, MIT OCW contains materials from nearly 1400 MIT classes from 75% of MITs tenure track faculty. This level of participation would not have been possible with out the NC clause attached.

DK: Is there evidence to suggest that MIT’s faculty could not have been ‘educated’ by a concerted effort on the part of those who understood the implications of this restriction? Is there evidence to suggest that they would be unwilling to change if provided with a reasoned argument?

In my University, we have a policy that was accepted unanimously by senate and council that stipulates Attribution ShareAlike, and provides guidelines for when other licenses are appropriate. After much discussion within the university, there has been no objection to this license.

Of course, its a brand new venture, so I cannot say yet whether they buy into it by publishing their content, but then I don’t have large grants for them either.

I would further argue that the education world is not necessarily well served by the vast quantity of rather drab content that makes up most of MIT open courseware. It might actually have been a better decision (for the education world) to have supported a smaller volume of high quality content with good pedagogical value. On the other hand, I realise that we are a mere few steps into a journey that has yet a long way to go. There is certainly a need to research these questions properly, because right now it is speculation, and what I express above is merely my opinion.

SC: The license used for MIT OCW was not chosen hastily–we actually developed our license in parallel with the development of the CC BY-SA-NC license (and in fact have just recently completed a convergence of the two licenses and begun using the CC logo on our site). The practical question is, would it be better if MIT OCW had used a more open license but only been able to publish materials from a quarter of the faculty?

DK: If you got the good ones, yes! But the long term benefit remains to be seen, so I am answering only for today.

SC: If, in a wider context, the lack of protection afforded by the NC restriction means that a much smaller number of individuals and institutions participate in open sharing, then the *absence* of the NC may actually “limit the flow and impact of OER.”

DK: It will in the long run, because it will inhibit the formation derivative works. Can you name one successful computer programme that you are not allowed to use commercially? Where do you think Wikipedia would be today if they adopted a NC restriction?

SC: The NC license does not eliminate the possibility of commercial use, it simply means that to make commercial use of the materials, you must ask.

DK: Which is fine when there is someone to ask. But it adds a hurdle to jump over. When there is only one person to ask it is easy, but as the works grow, the number of times you have to ask and the need to keep track of permissions creates a barrier that should not exist for publicly funded education materials.

SC: This means getting a separate permission from the author (in our case, the MIT faculty member who still owns the material). Asking is greatly simplified by the BY requirement, especially in cases of institutional publications like ours, where it is relatively easy to contact authors. Many MIT professors are not disinclined to allow commercial use of their materials, but most want to have some control of the commercials uses with which their work is associated (and generally this concern is more about the appropriateness of the associations, rather than an interest in profit).

DK: But this misses the main point completely. It is NOT that I want to make commercial use, but I do not want to preclude MY derivative works from being used commercially. So what do I ask permission for? To be allowed that some hypothetical person at some unspecified time in the future might want to make commercial use of MIT or other NC materials for some unspecified purpose.

You see, you are on the wrong side of the license compatibility gap.

SC: If you accept the premise that more people share openly with the NC protection than without, an argument could be made that the NC license actually increases commercial use by advertising the existence of more materials. We typically get two or three requests a month for commercial uses of MIT OCW content, many of which are forwarded to the faculty member and some of which are approved under an agreement separate from the regular MIT OCW CC license structure. I have no doubt that some of these commercial uses never would have occurred without the OCW site.

DK: That is largely a consequence of it being MIT, and the hype surrounding it. But my point is I don’t care about commercial use, I simply don’t want to make educational materials funded with public funds sit on two sides of a license incompatibility gap that leads to wastage as people duplicate work already done on the other side of the gap.

SC: License incompatibility issues will arise, of course, but again, where they do it simply means that you must go back and ask the author for permission to create a derivative under a different license.

DK: Which is based on the naive assumption that you have a small number of authors. But how do you keep track of all that with a small budget in a developing country where the materials are claimed to be targeted?

SC: As I noted before the attribution requirements of our CC license make this relatively simple, and the fact of the initial open publication indicates the author is inclined to open sharing and likely to at least seriously consider the request. I realize this adds some level of friction in the flow, especially for those working toward automated interoperable learning systems.

DK: There you hit the nail on the head. We have MIT open courseware imported into our LOR, but it is incompatible with our own content, so we still don’t know whether we can use it or not. As a result, we will most probably not make it available to our staff even though it is technically very easy to do so.

SC: On the other hand, such communications may act to strengthen ties among educators around the world, generating awareness of others working in related fields and sparking new connections and communications.

DK: There are better ways to strenghen ties then having to face the annoyance of asking permission to cross the compatibility gap every time. You are making the assumption that we would want to ask permission for commercial use, but what I would need to ask for is permission to allow others to make commercial use at some unspecified time in the futuer for some unknown purpose. I rather just do it over.

SC: Their are good ethical arguments for and against the NC restriction, but I do think the question of whether the NC restriction is more or less effective at promoting the goals of OER sharing is at minimum an open one, and might be a good topic for the research agenda.

DK: Certainly, the evidence so far from software suggests that will be an impediment to community building, and the logic of the arguments also suggest this. There are two approaches to content creation, I call them “communal farming” and “mana from heaven”. MIT’s approach follows the ‘mana from heaven’ approach. I am more interested in the role that public funds can play in stimulating the ‘communal farming’ approach.

I discussed this on my blog at so I won’t repeat it here.

But you are right, it could do with some research. Meanwhile, I will not plant any NC content in my communal farm 🙂

SC: There’s no doubt that multiple licenses will complicate the development of derivatives from OER, but there are still very good reasons for their use. There will be a compatibility gap such as Derek describes, and at least with the early figures I’ve seen, something like 70-80% of the educational materials openly published at present use the NC restriction. It’s a matter of philosophy whether you want to go withe the most widely used license, convert the 75% to conform with the 25%, or live with the gap.

DK: ..or the alternative, which is to educate people regarding legitimate reasons for choosing a particular license.

SC: I do think it’s worth making explicit at this point that the whole discussion privileges one type of OER (re)use, which may turn out to be a small piece of the puzzle. Our evaluation work has shown that about half our use is from self learners, 30% from students at other universities, and 16% from educators. Of that educator use, only about half relies on the creation of derivative works. This means
that the incompatibility issues Derek raises are a potential issue in less that 10% of our use.

DK Right now today, but are we not interested in building community? Thats a bit like saying that because >99% of cars currently burn fossil fuel, we should not worry about alternative energy. Not quite, but what I am saying is that we need to change this situation, not accept bad practice as the defacto standard.

SC: In the other 90% of use, different licenses have no impact, and the important point is simply that the materials are openly available. It’s my hope that we do not lose sight of this fundamental point–open sharing and transparency allow up the
opportunity to learn from one another in a myriad of previously unimagined ways, and we ought to get as many materials as we can out there and openly shared. The last thing I’d like to see is materials not being shared because of an insistence on a single license.

DK: MIT can choose MIT’s license. I am talking about things developed with public funds. Of course, if MIT can educate its academic staff too, then great. But MIT OCW is not OER, and MIT has a rather unique perspective that is not that of a typical institution adopting an OER policy.

For a small, poorly funded institution like the one I work for, building community is absolutely the most important aspect of OER, and for us, without the financial muscle to choose our own path, a Free license is a vital first step.

SC: The creation of derivatives from OER probably does deserve to be privileged as it appears to be a path of great promise, but it’s not the only path and we’re too early–and know too little–to be closing down one avenue at the expense of another. Another vote, I guess, for more research…

DK: Except where the work is publicly funded. Then I would argue that it must contribute to community.


2 Responses

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  1. Derek Keats said, on May 22, 2006 at 8:13 am

    Derek here….found this by accident when looking for materials to use in a workshop on FRee and Open Resources for Education.

    There are some misunderstandings of my position on the NC restriction VS the BY-SA license contained in these postings. Firstly, if something is a complete work and has commercial potential that you wish to exploit, then the NC restriction is in fact appropriate.

    Secondly, if the mean and nasty publishers republish your work because it has a BY-SA license, then anything that they put with it has also to have a BY-SA license. So the idea that they could pull it off the shelf and publish it is only valid if it is a complete work that can be published on its own. The NC restriction does not stop them from being associated with your work at all, because they could put it on their website to attract customers, even though it has the NC restriction. So, you are using a hammer to drive a screw if you use the NC restriction for that purpose.

    Thirdly, just because 75% of people choose the NC restriction without thinking about it does not me that we, as enlightened educators, have also to choose the same way. If we operated like that in this country, we would not currently be a democracy. So it is up to those of use who think deeply about things to try to change the situation, not accept it just because thats the way it is. Freedom will always require vigilance and activism to protect it. The forces that undermine it are too strong. Blind acceptance of “what just is”, is one of those forces.

  2. Stephen Carson said, on May 22, 2006 at 8:36 am

    Thanks for adding this. I did in fact miss the nuance on points one and two. You’ve been very consistent on the issue of suggesting the NC restriction where it makes sense for complete works. The OpenFiction Project text (at least in my opinion) meets condition two, by the way.

    On the third part, I’m not entirely persuaded that the model of open source software really applies to content in such a way that upstream licenses will affect downstream content in the way they do with source code. I really do think that (especially as materials tend toward the more granular) we’ll develop (or have already developed) methodologies to work in a heterogeneous license environment with minimum fuss. It’s when we get to the level of trying to draw all content into a canonical system and push it around it automated fashion that greater (though not insurmountable) difficulties arise.

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