Hi world!
During the past two weeks we have been discussing sharing and openness in the context of open learning. As a result of our fruitful discussions, a lot of fascinating aspects, relating to this topic, were revealed, but in my post here I would like to focus on a particular concern that I have in the context of OE and OER. A disclaimer: I am a lawyer, that has recently come to a realisation that most of my concerns usually stem from my professional background, something that I did not reflect much upon before.
The first and the foremost concern that I have is the feasibility of the protection of IP rights in the context of OE. While I was watching a video and a recording of the workshop on Creative Commons Licenses that perfectly explained how one can share the results of one’s work and determine how one’s work can be used by others, I could not help thinking about the legal practicalities of such a sharing tool, especially when it comes to its enforcement.
Let’s imagine a situation, where you create your work and state clearly that your work is not for commercial use. Then you realize that there is a lecturer at a tiny private institution in another jurisdiction (country) who actively uses your work in their teaching. The problem is that students can only be enrolled at this tiny private institution on a commercial basis, namely, they pay for their education there. That in its turn means that your work is used for commercial purposes against your expressly stated wishes and, of course, you do not get any royalties, associated with its use. If that happens, you can attempt to sue a violator for violating your IP rights (see, for instance, a couple of cases regarding violation of non-commercial use of Creative Commons Licenses, enlisted on their own Creative Common legal database, https://legaldb.creativecommons.org/cases/?tags%5B%5D=NonCommercial), but this route would be too tiresome, cumbersome and under the enlisted circumstances unreasonable, to be blunt. So, in the end you are left in a situation where your work is misused and there is little that you can actually do about. I personally find this aspect particularly disturbing as I cannot see how one’s IP rights can be protected in such a situation and that in its turn discourages me from actively using this tool.
What are your thoughts in this regard?
Alastair Creelman
Good case to discuss. Surely this sort of issue occurs just as often with fully copyrighted material – is it worth trying to sue someone in a far-off country for something relatively trivial? The strength of CC is that you retain your copyright but give certain permissions in advance and so other people can freely reuse and even adapt your work as long as they clearly credit the original and link to it. I know many academics who publish whole books as CC and the book is free. They reckon that the book isn’t commercially attractive and even if it was the royalties are usually very low anyway.
In the case you mention it depends on how damaging the infringement is. Is it a misunderstanding of the CC license? Does it damage your reputation at all? The commercial aspect here is in the student fees, not in them trying to sell your book for profit. The work is not being “sold”, simply reused and if you get credited I’d be happy with that. Maybe we can discuss some time. I’m getting a bit tied up in this short comment 😉
Anna Zemskova
Thank you for the comment, Alastair! it is indeed a huge and multi-faceted topic! The commercial aspect does not exclusively mean literally selling a piece, it entails using it for commercial purposes, namely to gain profit (in the form of tuition fees) as is in this case. We can definitely discuss it some time in depth!:)
Katie Kenny
Thank you for adding the link to other CC cases, I don’t have legal expertise but I do find the legality very interesting! (Americans do love their legal dramas.) I only read the US ones at the top but they confirmed what I already understood. When used for educational purposes, it falls under fair use (even if giant corporations are benefitting *yuck*). I agree with the technicality that tuition fees constitute commercial use and that it is unfair, but as you said with the hypothetical case you laid out, I also can’t imagine any court entertaining it either. So unfortunately, I am on the side of being very closed, especially since GAI really takes advantage of the open learning intent of CC licensing. There is a much bigger case here for being protective of our work than just some teacher at a private college using our work in a lecture. There are little to no legal protections for creators when it comes to LLMs, so until lawmakers catch up, I think creators should essentially ‘boycott’ CC licensing and privatize our work. This would make it more difficult to share information which appears anti-education. But the current system of scholars being expected to altruistically give our work away is unsustainable. I am not against collaboration, but again, we need to figure out how to deal with the current issues before the wheels completely fall off the wagon and it’s too late. I don’t know what the right answer is, because you are right, it is disturbing that we have no say in what happens to our work once under CC. Sorry for the long comment, still grappling with all this since I have never thought about it before this class. So thank you for the very thought provoking post. 🙂
Anna Zemskova
Hi Katie!
Thank you so much for your post! I was really glad to read it and see that there are other people with similar concerns, as I started to wonder if I, perhaps, was overthinking too much:) I think that as a researcher one is quite often involved in many activities that one does pro bono and receives no credit for that (except for ‘eternal fame’), so the least we could do is to ensure that IP rights are respected.
Lars Harrysson
I guess that property rights might be an obstacle to a lot of openness, and, perhaps, we need to rethink the idea of sharing in knowledge production from that standpoint. CC is for sure a step in that direction, but imagine if our ways of viewing property is as a misfit to today’s needs as is much of industrial and welfare theory and practice to the needs of handling climate change.
And as Katie wrote in a comment, thanks for a thought provoking post.
/Lars