Opinions On Open

Something I hear frequently is this wish that all “educational uses” be considered “fair uses,” thereby presumably freeing the resources from the usual constraints of copyright. How shall we count the ways that this seemingly simple idea is confused at best, and horribly wrong at worst? Let’s see…

1. Define “educational use” for me. Does it include education taking place outside of formal educational situations? Do you have to be a “qualified educator” (or an “enrolled student” or an “accredited institution”) in order to enjoy this right? I have never seen a non-discriminatory definition for “education.” In a world of rapidly evolving educational practices and in desperate need for alternative pathways to educational attainment, it seems quite foolish to define education in any narrow sense.

2. Define an “educational resource” for me. In my experience, anything can be an educational resource, properly contextualized and presented. Even the most crassly commercial product can be easily converted to “educational material” if the subject at hand is mass merchandizing, popular culture, or any number of other relevant disciplines of inquiry. Given this context-dependence, we should reject out of hand any attempt to lock “educational” resources into a specific, and almost certainly highly restrictive and archaic, form and function.

3. A fair use determination, even if we somehow capitalize on that capacity within some “educational” safe-harbor, is necessarily subjective and always carries some risk. It is highly doubtful that most risk-averse institutions will support such uses as a matter of course.

4. Even if we enjoyed broader fair use considerations, fair use is not a free ticket to do whatever you want with a resource, nor is it available to everyone on the globe. At best, fair use gives you some limited capacity for copying and sharing, and even more limited capacity for re-use, and then only in the select few countries that permit such uses What makes open educational resources (OER) interesting and powerful is the explicit permission to adapt, translate, and otherwise customize and improve the works. Creative Commons licenses are the only globally standardized tools that enable these uses to be made easily and transparently by anyone, anywhere.

I suspect that many people who espouse this desire for universal “educational fair-use rights” are basing this desire on a feeling that education is different, somehow. In education, people like to share. In education, the value of a resource is enhanced by increased use, adaptation, and customization to local needs. I agree. And this is why Creative Commons is the perfect solution to overcoming the copyright barriers that prevent these activities. As an opt-in system, we don’t need to argue with people who find all-rights-reserved copyright to be necessary for their work, such as many artists, musicians, and others in the creativity business. As a system that builds on top of copyright, we provide a mechanism for people to build a global education commons while respecting the rights of others. And as a global standard, Creative Commons transcends the diversity and incompatibilities inherent in the laws of the many different countries around the world.

The Internet, which obviously facilitates the sharing and adaptation that we desire, is a global medium – we need a global legal infrastructure to make it work. Creative Commons provides that infrastructure. Anything else is just so much hot air.