What status for open?

An examination of the licensing policies of open educational organizations and projects

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About this report:

This report was researched and written by ccLearn, comprised of Ahrash Bissell (Executive Director),
Jane Park (Research Assistant and Communications Coordinator), and Andrew
Brooks (Research Assistant). ccLearn also has a board of expert advisers
who contributed significant editing and oversight to this report: Hal
Abelson (Professor of Computer Science and Engineering at MIT), James
Boyle (William Neal Reynolds Professor of Law at Duke Law School), Michael
Carroll (Professor of Law at the American University), and Esther Wojcicki
(Teacher of Journalism and English at Palo Alto High School). We gratefully
acknowledge the feedback and insights of other members of the Creative
Commons staff for feedback and guidance on this report. We would especially
like to thank the William and Flora Hewlett Foundation for providing
support for this research and activities to follow..

This report is available for download and distribution in several different formats.
Please visit http://learn.creativecommons.org/productions#Reports for all versions and additional details.

December 2008. This report is licensed using a Creative Commons Attribution 3.0 Unported License. Please attribute: “ccLearn 2008. http://learn.creativecommons.org.”

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Table of Contents

Executive Summary 1

Background 2

1. The Role of Copyright Law 2

2. Copyright and Education 3

Methods and Results 4

1. Identifying OER providers 4

2. Limitations 5

3. Finding the License Terms 6

4. Categorizing the licensing policies 9

Findings and Interpretation 11

1. The terms and conditions imposed by the OER provider were often difficult to find and to understand. 12

2. OER providers imposed a diverse set of “open” conditions on users through their copyright licenses,

some of which contradicted the general understanding of openness. 12

3. The terms of different licenses are often incompatible with one another in a way that prevents combining materials from different providers. 13

Recommendations 14

1. Clarity and Identification of License Terms. 14

2. License Standardization. 15

3. License Compatibility and Reuse. 15

Conclusion 16

Appendix A – Examples of the Open or Free Statement of “Open” Sites 17

Appendix B – Examples of Standard License Terms 18

Appendix C – Examples of Custom Licenses 19

Appendix D – Examples of situations in which inability to combine resources with different licenses is problematic. 20

Appendix E – Creative Commons 21

Appendix F –Table of Sites Using Standard Licenses 22

Appendix G –Table of Sites That Are Not Using Any Standard Licenses 34

Executive Summary

The World Wide Web is home to a wide array of educational resources, such
as course materials, reference works, lesson plans, slide shows, instructional
videos, historic photographs, scientific demonstrations, and the like.
Some providers make a point of designating their resources as “open”
or “free” resources, and some specifically designate these
as “open educational resources” (OERs), a term adopted by
UNESCO to designate resources that promote open education. Indeed a
global movement has grown up around these resources as crucial components
of open education.

But, what makes an educational resource “open”? Is it enough that
resources are available on the World Wide Web free of charge, or does
openness require something more? These questions have become more urgent
as the open education movement has gained momentum and as potential
users of OERs increasingly face uncertainty about whether permission
is required when they translate, reuse, adapt, or simply republish the
resources they find.

With the support of the William and Flora Hewlett Foundation, ccLearn surveyed
the copyright licensing policies of several hundred educational projects
or organizations on the Internet to assess whether these legal conditions
limit the usefulness of self-designated open resources from the user’s
perspective.

The study reveals three principal findings:

• The copyright licenses or terms of use associated with some OERs are difficult to find or to
  understand;
• The majority of OER projects or organizations have adopted a standardized license created
  by an independent license provider, and of these, the large majority
  have adopted one or more of the six Creative Commons copyright licenses
  (”CC licenses”) to define the terms of openness. But, a sizable
  minority of OER providers have chosen to craft their own license – often
  borrowing terms from one of the standardized licenses. Thus, as a group,
  OER providers have adopted a diverse, and often customized, set of license
  conditions that in some cases require significant work by users to understand;
  and
• The usefulness of OERs as a group is limited by incompatible license conditions that functionally
  prohibit combination or adaptation of OERs provided by different sources.

From these findings, ccLearn derives three recommendations for the OER community:

• OER license terms should be easy to find and to understand by users and their search tools;
• OERs should be governed by standard license terms to facilitate use; and
• OER licenses should be mutually compatible whenever feasible to facilitate collection, adaptation,
  and recombination of OERs from multiple sources.

As the majority of OER providers recognize, CC licenses were designed to
solve each of the three problems identified in the findings. With respect
to the problem of license obscurity, all Creative Commons licenses are
easily found through the use of icons linked to a brief description
of the core license terms and machine-readable metadata that represent
the license chosen. CC licenses are standardized around six combinations
of terms. However, not all CC licenses are mutually compatible, a result
of the fact that CC licenses were designed to serve the needs of a wide
range of creators.

This report concludes with a recommendation that creators of open educational
resources consider using CC licenses to provide users with readily found,
standardized terms of use. It recommends further that OER creators consider
adopting the most open of CC licenses to nourish the creativity of educators
and learners alike by allowing the adaptation, combination, and republication
of OERs from multiple sources.

Background

Educators and self-learners need access to a wide range of educational resources
– such as text, images, audiovisual materials, and manipulable objects
– that can be modified, adapted, and creatively re-used. Historically,
access to such materials was limited and came with costs associated
with their creation and dissemination. Now, however, anyone who is connected
to the Internet has instant access to a vast and expanding pool of resources
which can be used for nearly any educational purpose. Moreover, the
Internet and related technologies greatly facilitate the abilities of
educators and students to create and adapt educational resources and
to share these with an Internet-connected global audience. The distinction
between creators and consumers of information is rapidly eroding, to
the possible benefit of anyone interested in improving educational access
and opportunity worldwide.¹

1. The Role of Copyright Law

The utility of educational resources depends upon their terms of use. Throughout
the world, copyright law provides the background terms of use for nearly
all educational resources. Copyright law generally excludes others from
copying a work, distributing copies to the public or otherwise communicating
the work to the public, or adapting the work unless one of the limitations
or exceptions to copyright law applies or the copyright owner has granted
a license. The fact that something may be available for viewing or download
on the Internet generally does not change its copyright status except,
perhaps, to grant Internet users an implied license to read, watch,
listen, or otherwise access the content.

While there are important copyright exceptions and limitations for educational
uses in some countries, these are usually quite targeted or are interpreted
to have limited scope and usually do not include general permissions
for adapting or re-publishing works. As a consequence, when creators
of educational resources leave background copyright law in place as
the terms of use, these terms inhibit the legal sharing and reuse of
educational resources in many instances.²

To alter or to remove copyright restrictions on use, the copyright owner
need only grant users a license or permission. Under the law, a non-exclusive
license (a.k.a. “permission”) can be granted fairly readily.
A verbal statement will suffice, as will words of permission that identify
which uses are permitted. However, it generally will be insufficient
to simply designate a resource as “open” because the uses that are
being permitted are too vague.

Copyright owners who choose to express their permissions or licenses in writing
can write their own licenses, or they can adopt a standardized public
license that expresses a generally understood set of terms governing
use. Creative Commons licenses are the most commonly used public licenses
for works other than software. Other public licenses found in this study
include the GNU Free Documentation license (GFDL), the Creative Archive
license, and the Open Content license.

Works created by U.S. Government employees within the scope of their employment
are an exception to these rules. Under U.S. law, such works are free
from all copyright restrictions and may be re-used in any manner without
needing a copyright license.

2. Copyright and Education

Copyright-related barriers to open education are a serious problem. While certain individual
educators may, on occasion, respond to copyright use barriers by simply
ignoring the law, some evidence shows that copyright-related concerns
chill the creativity of educators inside the classroom and even more
so when educators contemplate sharing resources they have adapted or
re-used over the Internet.³

The goal of the Open Educational Resources (OERs) movement is to respond
to the needs of educators and students for open, adaptable resources
and emphasizes the transformative possibilities of digitally created
and distributed resources⁴. The primary focus of OER providers
has been to publish their resources on the World Wide Web or to otherwise
provide Internet access to educational resources without charge. To
date, less attention has been paid to the copyright complications that
can arise with respect to the distribution and re-use of OERs.

Some participants in the OER movement believe that this patchwork approach
to copyright licensing could be undermining the effectiveness of OERs
to be shared and adapted by educators and students. The motivation for
this study is to assess the licensing or permissions practices of self-described
providers of OERs with an eye towards these concerns.

Methods and Results

1. Identifying OER providers

OER providers are distributed across the Internet, and there is no authoritative
index or data set of all providers. Working within this constraint,
ccLearn searched for providers of digital resources that were self-described
as “open” or “free” and “educational.”

Specifically, the method for compiling the data set comprised the steps
of:

• Collecting data from existing OER archives, such as OER Commons;⁵
• Querying members of the open education community to assist in identifying additional
  suitable resources;
• Searching and evaluating sites such as the Development Gateway⁶, Wired Campus⁷,
  and many personal education blogs. Keywords used included “open”⁸,
  “free”, and “libre”⁹.

This method yielded a set of more than 1,000 sites which at least some members
of the OER community considered to be “open.” The complete
list is available through an online wiki database¹⁰.

This study, however, is limited to the copyright policies of those projects
and organizations who describe their own resources as “open”

or “free” or some similar designation to signal that the resources
are intended for a broad array of uses. Upon examination of those sites
provided by the broader community, ccLearn found that only 182 actually
self-describe their resources as open or free.

The standard for self-description as “open” or “free”
used was capacious (see examples in Box 1). A site was included in
the dataset even if it was only marked by a statement such as, “You
may read all of our educational materials for free.” In a few cases,
sites placed the Creative Commons logo or license button on their home
pages, but then did not include any other indication that the materials
were “open”. These were included in the dataset on the theory that
use of the CC logo was intended to signal openness to users.

The relatively small number of OER providers we identified does not mean
that there are relatively small numbers of open educational resources
online. For purposes of this licensing study, Wikipedia, for example,
is treated as a single resource because it comes from a single source
on the Web. The same is true of providers of Open CourseWare, many of
which have materials associated with hundreds or even thousands of courses.

Finally, some agencies of the United States government also provide educational
resources pertinent to their respective domains of expertise. Many of
these sites do not self-describe as “open” but, in the United
States, site content created by federal employees are open as a matter
of law. Under U.S. copyright law, works created by federal employees
within the scope of employment are automatically in the public domain
– free from any copyright restrictions – and may therefore be used
by anyone for any purpose. These open government-created resources include
NASA photographs, USGS lesson plans, collections of federally funded
resources from the Department of Education, and so on. We identified

U.S. government sites by simply segregating all of those sites that
ended in “.gov” in the first part of their URL. This does not guarantee
that the resources within were created by federal employees, but we
are not aware of any more accurate methods of identification. We identified
a total of 158 sites in this manner¹¹. Note that these sites
were separated from the rest of our dataset first, regardless of whether
we could find an open or free statement.

2. Limitations

No claim is made that this dataset is complete. Due to the nature of existing
compilations of OER providers and to language barriers that restricted
the search to primarily English-language resources, the data set is
skewed toward providers in North America. It should also be noted that
we did not actively seek to include the abundance of educational web
logs (blogs), even though many of them have become reliable sources
of information and excellent archives of educationally relevant content.
The few that were included were brought to our attention via the methods
described above.

Moreover, identifying providers who express an intention that their resources
be “open” was complicated because some providers express this
intention indirectly. Searches and evaluations focused on the home page
or “About” page of web sites of interest.

Finally, we did not attempt to categorize the various open-source licenses for
educational software. Regardless, some of the sites in our database
include software resources. It is our opinion that the standardization
and interoperability issues for software differ from those regarding
content, though we hope to explore this issue in greater detail in the
future.

3. Finding the License Terms

Finding the license terms applicable to self-described open resources proved
challenging in many cases. ccLearn did not develop a methodology that
would yield quantitative data on license obscurity. However, from a
qualitative assessment, the following findings were supported by the
data.

a. The ease or difficulty of finding license terms varied regardless of whether
standard licenses or custom licenses were used, but standard licenses
were generally easier to find.

A majority of sites studied made the applicable terms of use relatively
easy to find by providing a link to “Terms of Use” or the
like from the home page. However, on a substantial number of sites,
the resources were not clearly marked with the permissions granted for
use, requiring users to seek and find the terms of use after two or
more links from the home page. Box 2 illustrates how many page clicks
it took to find the terms of use on certain sites. Box 2 also indicates
whether each site included a textual statement regarding the terms of
use, used links to provide further information, or used icons that graphically
represented the permissions that had been granted. Only those sites
using Creative Commons licenses provided machine-readable metadata to
improve ease of discovery.

The sites with the easiest-to-find licenses were those which used Creative
Commons licenses, marked by a license icon on the first page,¹²
along with a description of the CC license chosen in the Terms of Use
(TOU), usually linked to from the first page. Not all users identify
a CC icon as a signal of license terms, so those sites that also explained
the choice of license in easy-to-find Terms of Use were probably the
clearest from the user perspective. Boxes 3 and 4 both give examples
of sites that used standard licenses, but Box 3 lists sites that have
provided the licenses in a user-friendly manner, whereas Box 4 lists
sites where the licensing terms are difficult to find.

Providers who adopted customized licenses generally also had the terms that were
most difficult to find, although some custom license adopters include
a section entitled “Copyright” in their terms of use that
was relatively easy to locate. Box 5 lists some sites with easily identified
terms of use (and the number of page-clicks needed to find them). Box
6 lists some of the sites where the custom licenses are quite obscure
to the user.

b. A larger challenge from the user perspective is that multiple licenses
governed the terms of use for hosted resources on many open education
sites because the hosted materials were contributed by other sources
under various license terms that are passed through to the user.

In cases where a site aggregates resources from multiple sources, the site
usually adopts one license that governs use of its own resources and
then directs the user to consult the license terms of those who provided
other resources. Such aggregator sites also varied in the clarity with
which license terms were displayed, as shown in Boxes 7 and 8.

c. U.S. government sites often were not well marked.

Users cannot assume that all resources found on a U.S. government site are
free from copyright because some of these resources may have been created
by government contractors or other non-federal employees. Of the 158
U.S. government sites surveyed, we found that half (79) clearly indicated
that the resources were in the public domain, while the other half indicated
custom terms of use. Given that the focus of this report is on self-described
open educational resource sites, it is difficult to integrate any further
conclusions or specific recommendations regarding U.S. government sites
due to the different presumed copyright status of the resources within.
Therefore, we leave additional consideration of the terms of use for
U.S. government sites for a future report.

4. Categorizing the licensing policies

With respect to the actual terms that govern use of self-described “open”
resources, this study focuses on three aspects of the OER community’s
licensing choices:

(1) Did the OER provider choose a standardized license or a custom license;

(2) Which standardized licenses were chosen or were there common terms among
the custom licenses; and

(3) Does the license permit the user to combine the resources with OERs
provided by another OER provider under a different license?

a. Standard versus Custom Licensing

For purposes of this study, a standard license is one open for re-use by
any copyright owner and that provides sufficiently detailed terms to
alert the user to the scope of permitted uses and the conditions attached
to such uses. Most standard licenses, such as Creative Commons licenses
and the Free Software Foundation’s GNU Free Documentation License, were
drafted for such re-use. These licenses are “standardized” because
the same exact license can be used for more than one OER site, thereby
granting identical terms of use in every case and reducing the burden
for potential users who only need to learn about those terms once. The
only other standardized licenses we found were the Creative Archive
license and the Open Content license.

A custom license is one that is specific to a provider. In most cases,
custom licenses were granted as part of a broader set of “Terms
of Use” or “Terms of Service” on each site. These terms
of use often bear similarity to those on other sites, but these are
customized licenses because the terminology is not standardized and
the user must find and interpret the terms of use for each site to understand
what uses or adaptations she may make with the work. Note that some
seemingly standard licenses, such as the BC Commons license or the Jorum
Deposit license, do not qualify because they are only allowed for use
by a specified subset of the public, so these licenses are coded “custom”
for our analyses.

The majority of OER projects and organizations (59%) have adopted one of
the standard copyright licenses obtained from an independent and public
source. However, some of these OER sites also included some conflicting
statements regarding the terms of use which serve to effectively take
back some of the use rights granted by the standardized license (see
examples for CC-licensed sites in Box 9). A substantial minority (20%)
have written or adopted their own custom license terms. The remaining
sites (21%) placed their resources in the public domain, aggregated
only third-party resources (subject to many different licenses), or
did not provide any terms of use at all – or at least none that we
could detect.

b. Summary of License Terms

i. Standard Licenses

Appendix F collects and categorizes the standardized licenses adopted by the studied sites as follows: (1)
Creative Commons licenses (”CC”); (2) the Free Software Foundation
GNU Free Document License (”FSF”); (3) the Creative Archive
license; and (4) the Open Publication license.

If a site clearly indicated that the materials were in the public domain, then the license provider was marked
as “PD”. Where no license could be found, the terms of use are the
standard terms supplied by copyright law (coded “ARR” for “all-rights-reserved”).
Also, some sites deployed more than one license either because the hosted
resources are aggregated or incorporated from a variety of licensors
or because the provider has decided that categories of resources should
be treated differently. Those sites were coded by the licenses chosen
where feasible or otherwise as “Various.” As a result, the total
number of data points about license providers exceeded the total number
of sites analyzed.

In some cases, providers made statements that conflicted with the terms
of the standardized license. Focusing only on the 94 sites that used
Creative Commons licenses, ~7% (7 total) had site-specific restrictions
on use that de-standardized the default licensing terms (see examples
in Box 9). Seven out of sixteen of those site-specific restrictions
obscured interpretation about what was actually permitted. Seven of
the sites further delimited the non-commercial restriction to “educational
use only”. Two examples of the text of these amendments, along with
an example of an amended government (public domain) site, are provided
in Appendix C.

ii. Custom Licenses

Appendix G lists the 45 providers who wrote or adopted a customized license to govern
uses of their resources. No attempt was made to interpret the precise
scope of uses permitted by these licenses. However, we noted patterns
in the choice of custom terms, including those designating resources
as usable: “by educators,” “non-commercially,” or “for educational
uses”; usable but no derivatives are allowed; usable but with limited
copies allowed; usable but only in restricted locations (e.g., only
residents of a specific province); or usable as long as derivative works
are shared-alike. We suspect that many of these custom licenses could
be easily replaced by one of the standard Creative Commons licenses
or another standard licensing choice. In the discussion below, we explain
the benefits of doing so.

Findings and Interpretation

The principal finding of this study is that the terms “open” or
“free” educational resources do not communicate much to educators,
students, and other potential users with respect to actual uses that
may be made. As a legal matter, use of these “open” resources
is governed by a great diversity of license terms. Specifically, from
the user’s perspective, the licensing practices of self-designated open
educational resource providers yielded the following results: (1) the
terms and conditions imposed by OER providers were often difficult to
understand or even to find; (2) OER providers imposed a diverse set
of “open” conditions on users through their copyright licenses,
some of which contradicted the general understanding of openness; (3)
the terms of different licenses were often incompatible with one another
in a way that prevents legally combining materials from different providers.

1. The terms and conditions imposed by the OER provider were often difficult
to find and to understand.

The difficulties posed by some providers in making their license terms findable
have been discussed in the Methods and Results section above. With respect
to clarity of terms, standard licenses have the advantage of communicating
terms of use across providers, which means that if the user must interpret
the license, this interpretation need be done only once to understand
permissible uses granted by any provider that adopts the license. Custom
licenses require users to investigate and interpret terms of use for
each provider.

Even standard terms may require a degree of interpretation because users
are not familiar with copyright law or because there may be some ambiguity
in the scope of uses permitted. Creative Commons licenses are the standard
licenses which are used most frequently. CC licenses are accompanied
by a “deed,” aimed at expressing the essential permissions
granted by a license in language as clear as possible. Nonetheless,
for some licensors and users, the CC licenses that limit permission
to “non-commercial” uses are ambiguous. This problem is exacerbated
by custom licenses that adopt a “non-commercial” restriction,
since there is no way to be sure that any two custom licensors intend
that term to convey the same meaning.

2. OER providers imposed a diverse set of “open” conditions on
users through their copyright licenses, some of which contradicted the
general understanding of openness.

At least some users attracted to sites that provide resources designated
as “open” seek to do more than simply read or view the resources.
These users should be quite concerned about the relevant terms of use.
Any difficulties the user encounters when trying to understand a single
license are exacerbated when the user seeks to combine or adapt resources
from more than one provider. Thus the absence of license standardization
among providers of self-described “open” resources requires
that potential users expend significant effort in identifying and interpreting
a variety of licenses to determine whether desired combinations and
adaptations are permissible.

The diversity of terms that determine which forms of adaptation are permissible
is particularly daunting from the user’s perspective. Most advocates
of open education believe that the right to make derivative works is
a minimum standard for OER¹³. Several sites granted the right
to make derivatives, but only under specific conditions or in specific
ways (See Box 10).

3. The terms of different licenses are often incompatible with one another
in a way that prevents combining materials from different providers.

From the user’s perspective, the promise of “open”
educational resources is in many cases frustrated if the user expects an “open” resource to be one that can
be combined with, or adapted for use with, other resources. Such adaptive
practices already occur all the time in classrooms, such as when a teacher
photocopies clippings from a newspaper and includes them in the same
handout as some original text. Similarly, when a student matches music
to a collection of pictures to create a digital photo-montage of an
event, the different media must be legally mixable in order for the
resulting work to be published publicly. The license terms adopted by
many providers of self-described “open” resources restrict
or prohibit useful combinations or adaptations with other OER.

Since a number of providers have adopted
Creative Commons licenses, it is important to show that not all CC licenses enable productive educational re-use of licensed materials. The six
CC licenses were drafted to respond to the needs of a wide variety of
creative communities who wish to share materials subject to some limitations.
Not all of these licenses are suitable for use with “open”
educational resources, if “open” is to refer to the user’s
freedom to recombine or adapt the resources for distribution or republication.

Only resources in the public domain
(such as resources created by the United States government) and resources licensed under the Creative Commons Attribution license (CC BY) are
universally recombinable with other OER. It is important to note that
any license that includes the “Share Alike” restriction is
likely to raise compatibility problems. The “Share Alike”
condition requires that adaptations based on resources under a “Share
Alike” license also be licensed under essentially the same
license. This often cannot be done if a teacher wanted to combine music
under a license that requires attribution, non-commercial use, and share-alike
licensing with images under a license that requires only attribution
and share-alike licensing.

This is a significant issue for the OER community
because the largest single pool of resources we identified
that could be combined with other OER was licensed under the Creative
Commons Attribution Non-Commercial Share-Alike (BY-NC-SA) license. However,
none of the CC BY-NC-SA materials could be combined with differently
licensed OER due to the restrictions inherent in the license, unless
(in some cases) the new, combined materials were also amenable to being
licensed CC BY-NC-SA. Similar conditions and constraints were found
for resources licensed using any of the other CC licenses as well (other

than CC BY).

Recommendations

From the results of this study and its conclusions, ccLearn draws the following
recommendations for those who provide open educational resources and
for those who fund the creation and provision of OERs.

1. Clarity and Identification of License Terms.

Providers of open educational resources should make the applicable license or
terms of use easy to find and easy to understand. Ideally, licensing
terms should also be machine-readable, linked to the resources themselves,
and understandable by non-lawyers. Creative Commons licenses are the
only machine-readable licenses used by OER providers and are easy to
find and to understand.

“Machine-readability” is an important facet of clarity and identification for the licenses.
It should be easy for a user to search for resources that are openly
licensed in a way that any open educational resource can be identified
from any location on the web using standard search tools and social
networking sites. All CC licenses are described in a mark-up language,
called ccREL (Creative Commons Rights Expression Language), which makes
the licenses machine-readable¹⁴. ccREL, like all Creative
Commons products, is itself openly licensed, and can be used by any
software program to the benefit of teachers and learners who need to
find and use OER. If there is a good reason for not adopting CC licenses,
then OER providers should at least make their licensing terms machine-readable
by describing their terms in the ccREL.

Even resources that are in the public domain, such as most of those on the
“Government” sites, would benefit from application of ccREL so that
the status of the resources would become machine-readable. Creative
Commons also supports a public-domain dedication¹⁵, which
is currently being updated to make it easier to use globally. In addition,
Creative Commons is planning to begin work on a public-domain assertion
tool, for marking works that are already in the public domain (like
those on “Government” sites).

Another important aspect of license terms for OER is for them to be
easily and quickly understood by users. All CC licenses have simplified
deeds that are designed to quickly convey the essential permissions
that have been granted. In addition, CC licenses have specific icons
that provide visual cues to the terms and conditions associated with
each license, making it easy for site visitors to quickly verify what
they can or cannot do with the OER¹⁶.

Finally, the license terms should be associated directly with each and every
OER on a site, which not only allows people to search for the OER using
many web-based tools but also gives the opportunity to specify other
machine-readable attributes of the OER, again using ccREL. License terms
that are only provided on a Terms of Use page somewhere on a site are
not as easy to find, though we still recommend that every site have
a comprehensive Terms of Use page even if Creative Commons licenses
are used.

2. License Standardization.

Educators and students need a common framework for understanding their use rights
with respect to OERs for these resources to work as a global learning
commons.¹⁷ Creative Commons licenses have become the global
standard for open resources of all kinds other than software.¹⁸

Unless there is a good argument to the contrary, OER providers and those
who fund creation of OERs, such as the Hewlett Foundation, should adopt
CC licenses by default. Custom licenses are not user-friendly and should
be avoided if possible. Custom licensing requires users to engage in
additional interpretation, and custom licenses tend to be more restrictive
than necessary to accomplish the licensor’s goals.

3. License Compatibility and Reuse.

The terms of copyright licenses associated with OERs should reflect the
very purpose of OERs – to supply educators and students with resources
that they can use legally in the creative and adaptive manner that is
foundational to effective education. Adaptive reuse of educational resources
is commonplace. Most teachers, for example, develop handouts and other
auxiliary materials for their classes, and usually those handouts consist
of materials of different origin, including insights from the teacher
herself. Students also engage in adaptive uses (”remix”),
such as when producing posters or written reports that include pictures,
graphs, or text from other sources mixed in with their own words. As
technology becomes more widely used and crucial to education, such adaptive
work is certainly going to become more common.

Therefore, the standard terms of copyright licenses associated with OERs should
permit adaptation and translation in ways that allow OERs to be combined,
shared, adapted, and recombined without restriction. The license that
achieves this purpose most effectively is the Creative Commons Attribution
Only (CC BY) license. More restrictive licenses should only be used
when there is a clear and compelling reason to do so, and justified
accordingly.

Conclusion

This study analyzed the current diversity and form of the licensing policies
of self-described open educational resource sites, presuming that such
sites are specifically designed to permit uses of their content beyond
“read only” access to resources placed on the Web.

The result is that the open education community could make OER far more
learner-friendly and teacher-friendly if each provider chose to make
applicable copyright license terms easier to find and to understand,
to limit the variety of copyright licensing terms that govern use of
“open” resources, and to choose licensing terms that give
users the rights to localize, to adapt, and to combine resources from
multiple sources.

This report is licensed
using a Creative Commons Attribution 3.0 Unported license. Please attribute
to: “ccLearn 2008. http://learn.creativecommons.org”

Appendix A – Examples of the Open or Free Statement of “Open” Sites

Appendix B – Examples of Standard License Terms

Appendix C – Examples of Custom Licenses

Appendix D – Examples of situations in which inability to combine resources with
different licenses is problematic.

Example I.

The Tokyo Technology Initiative
is a member of the Open CourseWare Consortium (OCWC). MIT is also a
member of the OCWC. Because both are members of the OCWC, one would
expect them to have similar intentions with regards to their courseware;
namely, the resources on their sites should be open and available as
part of a common pool of OER. However, because resources on the MIT
OCW site are licensed CC BY-NC-SA, whereas resources on the Tokyo Tech
OCW site are not, the resources on these two sites are incompatible.
For instance, if you were a professor in China who wanted to combine
lecture notes from a Tokyo Tech course on electrical engineering with
a video from MIT showing a relevant experiment, you could not do so
legally. The simplest resolution is for Tokyo Tech to adopt CC BY-NC-SA
as the license policy for their resources.

Example II.

The Carnegie Foundation for
the Advancement of Teaching (CFAT) hosts the Gallery of Teaching and
Learning. The homepage of this site clearly shows the CC BY-NC icon,
and the associated text linked to the CC BY-NC deed, so the licensing
for this OER site seems to be straightforward. However, their terms
of use amends the standardized CC BY-NC license, limiting use of the
resources to “educational” use for “individuals”. CFAT does
not specify what exactly is “educational”, raising questions about
what is actually permissible for people to do with their materials under
the license agreement. Since both terms add caveats not included in
the standard CC BY-NC license, their resources are now legally barred
from being recombined with any other CC licensed works. For instance,
a teacher could not legally take an art-lesson plan from CFAT and combine
it with a CC BY-NC photo from Flickr to generate a customized lesson
plan. Standard CC BY-NC resources can be re-mixed and re-published with
a variety of other CC-licensed works; however, in its amended form,
the CFAT version is incompatible with all other OER, defeating much
of the benefit of licensing their resources openly.

Example III.

Even among the standardized
open licenses, incompatibility can be a problem. Creative Commons (CC)
and the Free Software Foundation (FSF) are the two most widely employed
license providers. However, currently no FSF license (such as the GNU
FDL) is compatible with any CC license, despite the deep similarities
that some of the licenses share (e.g., CC BY-SA). For example, if you
wanted to combine and republish several articles from Wikiversity (licensed
under GNU FDL – see Appendix B) along with some articles from the
Public Library of Science (licensed CC BY – see again Appendix B),
you could not do so legally. This situation has long been of concern
to the OER community, and efforts are underway to reconcile some of
the CC and FSF licenses, where possible. There are similar types of
interoperability issues among subsets of the CC licenses as well. Refer
to Figure 4 to see how some CC licenses are more combinable, and therefore
offer greater opportunities for users to exercise their creativity,
than others.

Appendix E – Creative Commons

What Is Creative Commons?

Creative Commons is a nonprofit organization that works to increase the amount of creativity (cultural,
educational, and scientific content) in “the commons” — the body
of work that is available to the public for free and legal sharing,
use, repurposing, and remixing.

How Does Creative Commons
Work?

Creative Commons provides free, easy-to-use legal tools that give everyone from individual creators
to major companies and institutions a simple, standardized way to pre-clear
copyrights to their creative work. CC licenses let people easily change
their copyright terms from the default of “all rights reserved”
to “some rights reserved.” Creative Commons licenses are not an
alternative to copyright. They apply on top of copyright, so you can
modify your copyright terms to best suit your needs. We’ve collaborated
with intellectual property experts all around the world to ensure that
our licenses work globally.

How Is Creative Commons
Used For Educational Materials?

Many educators already benefit from working with others to share, use, and build upon their works;
in these cases, publishing under a Creative Commons license makes such
collaborative activities easier. CC’s legal infrastructure gives flexibility
to the creator and protects users as well (since they don’t have to
worry about copyright infringement, as long as they abide by the terms
of use). For learners, CC licensed materials provide access to a wealth
of knowledge and opportunities to learn things in new ways. There are
many millions of works — from songs and videos to scientific and academic
content — that you can use under the terms of CC licenses.

What Are The Licensing Choices?

Attribution. You let people copy, distribute, display, perform, and remix your copyrighted work,
as long as they give you credit the way you request. All CC licenses
contain this property.

Non-Commercial. You let people copy, distribute, display, perform, and remix your work for non-commercial
purposes only. If they want to use your work for commercial purposes,
they must contact you for permission.

Share Alike. You let people create remixes and derivative works based on your creative work, as
long as they only distribute them under the same Creative Commons license
that your original work was published under.

No Derivative Works. You let people copy, distribute, display, and perform only verbatim copies of
your work — not make derivative works based on it. If they want to
alter, transform, build upon, or remix your work, they must contact
you for permission.

Based on these choices, you can get a license that clearly indicates how other people may use your creative work.

Appendix F –Table of Sites Using Standard Licenses

Table Key:

• Site – Name of project or organization.
• Open Statement Text – Snippet of text where the site appears to express its “open” or “free” intentions regarding its educational resources. There might also be a statement regarding increasing access to resources for others, or for the improvement of education via these means.
• License Source – The origin of the license(s) used by the site.
o Sources of Standardized Licenses
• Creative Archive
• Creative Commons (CC)
• Free Software Foundation (FSF)
• Open Content
o Custom – Where the terms are site-specific and therefore none of the standard licenses apply. Note: this is true even if the terms are modified from one of the standard licenses.
o ARR – “All Rights Reserved” copyright, the default condition (in the United States and many other places) for materials where no terms are specified (or could be found).
o Public Domain – Materials that are in the public domain, free from any copyright restrictions.
o Various – Where an indeterminate number of license sources might be used for a site that hosted numerous resources under various license conditions. Note: we did identify those providers that we could.
• Specific license(s) used? – Name(s) of the specific licenses, subdivided by each license provider, used by the site.
o ARR ARR
o Creative Archive Creative Archive License
o Creative Commons CC BY, CC BY-SA, CC BY-NC-SA, CC BY-NC, CC BY-NC-ND, CC BY-ND
o Custom Custom
o FSF GNU FDL
o Open Content Open Publication License
o Public Domain PD
o Various Various
• Conflicting statements? – If the site specifies conditions or restrictions beyond the standard terms of the license. Note: this analysis only pertains to sites that used CC licenses.
• Icon used? – If the standard license is also visibly indicated as an icon.
• Search aware? – If the standard license is also linked to a machine-readable code. Note: to date, the only machine-readable standard licenses are Creative Commons licenses, but only implemented correctly.

Appendix G –Table of Sites That Are Not Using Any Standard Licenses

Table Key:

• Site – Name of project or organization.
• Open Statement Text – Snippet of text where the site appears to express its “open” or “free” intentions regarding its educational resources. There might also be a statement regarding increasing access to resources for others, or for the improvement of education via these means.
• License Sources – The origin of the license(s) used by the site. Note that this appendix only lists sites that have not used one of the standard license providers. To see the sites with standard license providers, view Appendix F.
o ARR Copyright – “All Rights Reserved” copyright, the default condition (in the United States and many other places) for materials where no terms are specified (or could be found).
o Custom – Where none of the standard licenses apply because the terms specified are unique to the site or license materials to the site.
o Public Domain – Materials that are in the public domain, free from any copyright restrictions.
o Various – Where it was difficult to identify all the license providers for a site that hosted numerous resources under various license conditions. Note: we did identify those providers that we could.
• “Terms of Use” Link – Website URL where the terms of use are located.