Copyleft through Open Educational Resources and Creative Commons (speech)

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“C o p y l e f t t h r o u g h O p e n E d u c a t i o n a l R e s o u r c e s a n d C r e a t i v e C o m m o n s ”

By

M a r i n o s P a p a d o p o u l o s

2

nd International Workshop on Intellectual Property Rights & Innovation

Athens Information Technology, February 26, 2010

Slide 1: Title & Speakers

Ladies and Gentlemen:

I sincerely thank the organizers of Athens Information Technology for the

invitation to participate in the 2nd

International Workshop on Intellectual

Property Rights and Innovation. I’m going to brief you during this 20-

minute speech upon some aspects of Copyright, but also of interest to

AIT in the process of gaining competitive advantage in the field of

marketing academic and educational services.

Slide 2: Digital Libraries enhanced with OER

For those who keep pace with the latest developments in Copyright,

nationally as well as internationally, it is common understanding that

we’ve been in the transitional process of knowledge, science and culture

furnished through Internet networking applications and Internet Protocol

networks leveraging on Digital Libraries and repositories enhanced with

Open Educational Resources (OER). The concept of Digital Libraries is

not new, and is definitely well known to INTRACOM, a group of

companies that is related to AIT. If I’m not wrong since 1994—almost

during the last 15 years—INTRACOM Group has performed in the field

of Digital Libraries through projects such as the NOMOS Digital Library.

But the concept of Open Educational Resources is not something that

INTRACOM and AIT have mastered, so far. The concept and contents of

NOMOS are explicitly copyrighted; they are not copylefted.

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Slide 3: OER & Openness

The concept of OER is related to the international movement of

Openness. Both Openness and OER have been conceived in the sense of

catering for the right and the ability to modify, repackage, and add value

to an educational resource that becomes available on the Internet in legal

and binding terms for both users and authors. It has been widely

acknowledged that Openness, therefore OER, should offer the following

three freedoms:

1. The freedom to study a work and apply knowledge offered from it.

2. The freedom to redistribute copies, in whole or in part, of a work.

3. The freedom to make improvements or other changes, i.e. to make

adaptations, to the content of a work, as well as the freedom to release

modified copies of it.

Slide 4: A work of Open Knowledge

These freedoms, i.e. the freedom to have unrestricted access to a work,

use and reuse it, as well as remix it in the sense of being free to create

derivative works from it are at the heart of Openness and OER. One could

say that said freedoms are the main attributions of a work that is open

knowledge to society. Indeed, a work of open knowledge is a piece of

knowledge that is free to access, use, reuse and remix it. In that sense, a

work of open knowledge should be available:

1. as a whole and at no more than a reasonable reproduction cost,

preferably downloading via the Internet without charge. The work

must also be available in a convenient and modifiable form. {access}

2. through a license that does not restrict any party from selling or giving

away the work either on its own or as part of a package made from

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works from many different sources. The license shall not require a

royalty or other fee for such sale or distribution. {redistribution}

3. through a license that allow for modifications and derivative works

and must allow them to be distributed under the terms of the original

work. The license may impose some form of attribution and integrity

requirements. {reuse}

4. in such a form that there are no technological obstacles to the

performance of the above activities. {absence of technological

restrictions}

5. with proper attribution note. {attribution}

6. in such a way that there is no room for discrimination against any

person or group of persons. {no discrimination}

Slide 5: OER & OPLI

As it becomes obvious from the goals and freedoms of Openness and

OER, intellectual property issues are at the heart of them. The goal of the

OER movement is to respond to the needs of educators, students, and any

third party for open, adaptable resources found in Digital Libraries and

repositories, and emphasizes the transformative possibilities of digitally

created and distributed resources. The OER initiative has been a vehicle

for building a culture of sharing. OER leverages within a broader

initiative—an international Open Participatory Learning Infrastructure

(OPLI) initiative for building a culture of learning and leveraging upon

knowledge for gaining a competitive advantage in the market. The OPLI

is the set of organizational practices, technical infrastructure, and social

norms that collectively provide for the smooth operation of high-quality

open learning in distributed, distance-independent ways.

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Slide 6: OER & Science Gateways

Of particular relevance to the OER movement are major disciplinary

“collaboratories” (that is to say, instances of a virtual organization)

which are becoming functionally complete: through web portals,

members of the collaboratory can reach all the colleagues, computational

models, data and literature, and instrumentation they need to do their

work. The OPLI platform relaxes constraints of time and distance

(geographic, disciplinary, and institutional distance) enabling people,

information, and facilities to be linked and used no matter any difference

in time and place. It can dramatically scale up access and participation.

Physical proximity (same time and same place) continues to be

important, but is now richly augmented by collaborative work flowing

through variants of time and place.

Many of these collaboraties are also called “science gateways.” A

science gateway is a community-developed set of tools, applications, and

data that is integrated via a portal or a suite of applications, usually in a

graphical user interface, that is customized to meet the needs of the

targeted community. Some gateways expose customized sets of

community codes so that scientists, professionals or students can run

them. Others bring new services and applications to the community that

would otherwise not be accessible. Depending on the needs of the

specific community, a science gateway may provide capabilities such as

workflows, visualization software and hardware, resource discovery,

access to data collections, domain-specific computational applications,

data analysis and movement tools, job execution services etc.

Slide 7: OER & Science Gateways

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The science gateways provide access not only to open content but also to

open scientific instruments and mentored, authentic experience in a

community of practice.

And they are understood as an opportunity for synergy and mutual

benefit between the national and international scientific, professional and

cultural communities and the international OER movement, particularly

in the sense of evolving into a decentralized learning environment that:

1 permits distributed participatory learning,

2 provides incentives for participation through the provisioning of

OER, such as creating specific learning environments at all levels,

and

3 encourages cross-boundary, cross-disciplinary and cross-cultural

learning.

Slide 8: Copyleft—the routes of OER

The OER movement, which all these revolutionary ideas such as the

OPLI, the Science Gateways etc stem from and are related to, is deeply

rooted in the free software experience. The story of free software begins

in 1984, when Richard Stallman started working on a project of building

a non-proprietary operating system he called GNU. Stallman, then at the

Massachusetts Institute of Technology (MIT), operated from political

conviction. He wanted a world in which software enabled people to use

information freely, where no one would have to ask permission to

change the software they use to fit their needs or to share it with a friend

for whom it would be helpful. These freedoms to share and to make your

own software were fundamentally incompatible with a model of

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production that relies on property rights and markets, Stallman thought

by that time, because in order for there to be a market in uses of

software, owners must be able to make the software unavailable to

people who needed it. These people would then pay the provider in

exchange for access to the software or modification they needed. If

anyone could make software or share software they possessed with

friends, it becomes very difficult to write software on a business model

that relies on excluding people from software they needed unless they

pay.

As a practical matter, Stallman started writing software himself, and

wrote a good bit of it. More fundamentally, he adopted a legal technique

that started a snowball rolling. He could not write a whole operating

system by himself. Instead, he released pieces of his code under a license

that allowed anyone to copy, distribute, and modify the software in

whatever way they pleased. He required only that, if the person who

modified the software then distributed it to others, he or she should do so

under the exact same conditions that he had distributed his software. In

this way, he invited all other programmers to collaborate with him on

this development program, if they wanted to, on the condition that they

are as generous with making their contributions available to others as he

had been with his. Because he retained the copyright to the software he

distributed, he could write this condition into the license that he attached

to the software. This meant that anyone using or distributing the software

as is, without modifying it, would not violate Stallman’s license. They

could also modify the software for their own use, and this would not

violate the license. However, if they chose to distribute the modified

software, they would violate Stallman’s copyright unless they included a

license identical to his with the software they distributed. This license

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became the GNU General Public License, or GPL. The legal jujitsu

Stallman used—asserting his own copyright claims, but only to force all

downstream users who wanted to rely on his contributions to make their

own contributions available to everyone else—came to be known as

“Copyleft,” an ironic twist on copyright. This legal artifice allowed

anyone to contribute to the GNU project without worrying that one day

they would wake up and find that someone had locked them out of the

system they had helped to build.

Even before the birth of Richard Stallman’s “Copyleft” concept, it has

been undisputed that software, information, knowledge, and culture are

produced in diverse ways in contemporary society. Doing so allows us to

understand the comparatively limited role that production based purely

on exclusive rights—like patents, copyrights, and similar regulatory

constraints on the use and exchange of information—has played in our

information production system to this day.

Slide 9: Free Software (O.S.S.) goes mainstream

Recent research conducted by Forrester Research Inc., and published in

April 2009, indicates that by 2009 at least 53% of the world’s 2,000

largest companies have implemented, are piloting, or are expanding their

use of free software—Open Source Software—applications. Another

relevant and recent study conducted by Accenture and published in 2009

shows that 77% of high-performance IT organizations are now piloting

or committing to free software compared to just 37% of overall global

businesses.

Slide 10: Copyright

Copyright reserves certain rights for the copyright holder. All others

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need to obtain permission from them to do any of the following:

Create derivative works from the original work, for example by

translating it.

Distribute originals or copies of a work, for example by printing a

document for all students in a class.

Publicly display or perform a work, for example by showing a video

to a class.

These limitations cease once the copyright period is over. The work

enters the public domain. Once a work is in the public domain anyone

may perform any of the acts outlined above, without the need for

permission. It also means that no-one can appropriate or lay claim to the

work.

Slide 11: The Public Domain

The public domain is the wealth of information that is free from the

barriers to access or reuse usually associated with copyright protection,

either because it is free from any copyright protection or because the

authors and right-holders have decided to remove these barriers. It is the

raw material from which new knowledge is derived and new cultural

works are created. The Public Domain acts as a protective mechanism

that ensures that this raw material is available at its cost of reproduction -

close to zero - and that all members of society can build upon it. Having

a healthy and thriving Public Domain is essential to the social and

economic well-being of our societies. The Public Domain plays a capital

role in the fields of education, science, cultural heritage and public sector

information. A healthy and thriving Public Domain is one of the

prerequisites for ensuring that the principles of Article 27§1 of the

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Universal Declaration of Human Rights can be enjoyed by everyone

around the world. Said article posits that “Everyone has the right freely

to participate in the cultural life of the community, to enjoy the arts and

to share in scientific advancement and its benefits.”

Slide 12: The Public Domain

The structural Public Domain is made up of two different classes of

material:

1. Works of authorship where the copyright protection has expired.

2. The essential commons of information that is not covered by

copyright.

In addition to this structural core of the Public Domain, there are other

essential sources that enable individuals to freely interact with copyright

protected works. While these sources increase access to protected works,

some of them make this access conditional on certain forms of use or

restrict access to certain classes of users. I’m referring to:

1. Works that are voluntarily shared by their authors and right- holders.

Creators and right-holders can remove use restrictions from their

works by either freely licensing them, using legal tools such as the

Creative Commons licenses to allow others to use their works

without restrictions, or by dedicating them to the Public Domain.

2. The user prerogatives created by exceptions and limitations to

copyright (which are provisioned in the Greek Copyright Law) and/or

the fair use and fair dealing status (which are provisioned in foreign

legal frameworks). These prerogatives are an integral part of the

Public Domain. They ensure that there is sufficient access to our

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shared culture and knowledge, enabling the functioning of essential

social institutions and enabling social participation of individuals

with special needs.

Slide 13: Limitations on the Economic Right

Thus, and as I’ve already said, in most countries, certain exemptions to

copyright protection are set out in laws or regulations. These are referred

to as fair use in some countries, or fair dealing in others. In Greece,

they’re usually referred to as Limitations and Exceptions to Copyright.

Section Four of Greek Copyright Law 2121/1993 (articles 18 et al.)

describes them under the title “Limitations on the Economic right”

including the reproduction for private use (article 18), reproduction for

textbooks and anthologies (article 20), reproduction for teaching

purposes (article 21), reproduction for libraries and archives (article 22)

among other provisions of Section Four of Law 2121/1993, as well as

clauses for exception from the reproduction right (article 28B) and the

three-step test (article 28C). Typically education institutions are allowed

some flexibility in reproducing copyright materials for the purpose of

education. However, the law is often unclear on the exact amount of

flexibility permitted; it is not easy to find out what exactly an educator is

allowed to do. Also, these provisions differ from one country to another.

Something that may be permitted in one country may not be allowed in

another.

Slide 14: Article 21 of Law 2121/1993

The Greek Copyright Law 2121/1993 in its Chapter Four regarding

Limitations of the Economic Right includes provisions for textbooks and

anthologies as well as caters for the reproduction of academic materials

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for teaching purposes. More specifically, regarding the reproduction for

teaching purposes and according to article 21 It shall be permissible,

without the consent of the author and without payment, to reproduce

articles lawfully published in a newspaper or periodical, short extracts

of a work or parts of a short work or a lawfully published work of fine

art work exclusively for teaching or examination purposes at an

educational establishment, in such measure as is compatible with the

aforementioned purpose, provided that the reproduction is effected in

accordance with fair practice and does not conflict with the normal

exploitation. The reproduction must be accompanied by an indication of

the source and of the names of the author and the publisher, provided

that the said names appear on the source.

Slide 15: Article 21 of Law 2121/1993

Regarding the provisions of article 21, we should clarify the following

issues. Said provisions of the Greek Copyright Law:

1. Are in sync with article 10§§2 & 3 of the Berne Convention for the

Protection of Literary and Artistic Works (Paris Act of July 24, 1971

as amended on September 28, 1979). They are, also, in sync with

article 5§3(a) of Directive 2001/29/EC of the European Parliament

and of the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information society,

2. Cater only for a limitation of the reproduction right. There is

dissonance, though, whether the right of translation as well as the

right to create derivative works are included in said provisions for a

limitation to the reproduction right regarding textbooks and

anthologies. The provisions of article 21 are set in Law with the aim

to serve the teaching and examination needs in the educational

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process. If said limitation in the reproduction right is exercised with

the aim to serve other purposes, then this reproduction deviates from

the scope of article 21, and thus is not legal because it deviates from

the scope of Law.

Slide 16: Article 21 of Law 2121/1993

3. Do not cater for the right of communication to the public of works

and the right of making available to the public other subject-matter.

Therefore, any distant learning applications implemented through the

Internet is excluded from the scope of article 21 of Law 2121/1993.

4. Do not allow the reproduction of the whole work, but rather only of

short extracts of a work or parts of a short work. The extent to which

said reproduction is permissible is judged in concreto in consideration

of the aim for such reproduction. Only works of fine arts are excluded

from the limitation to the reproduction right furnished through said

article, in the meaning that a lawfully published work of fine art may

be published in whole for teaching or examination purposes.

5. Do not cover the reproduction of software for educational purposes.

The only allowed restrictions to software programs are provisioned in

articles 42 and 43 of Law 2121/1993.

6. Pertains to any educational institution, either public or private, at any

level of the educational scale.

7. Are subject to the provisions of the general rule of the three-step-test

which is mainly found in article 28C of Greek Copyright Law, i.e. the

exception to limitation for reproduction of academic materials for

teaching purposes shall not apply when the act of reproduction is

likely in conflict with the normal exploitation of the work or prejudice

the author’s legitimate interests.

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Therefore, as it becomes obvious from the aforementioned short analysis

the provisions of Law 2121/1993, i.e. the default copyright provisions,

do not leave any room regarding the advantages of Copyleft solutions

and especially for Copyleft applications in Cyberspace. Unless members

of a community such as the academic community of AIT opt to subject

to Copyleft licensing provisions regarding the use of Intellectual

Property produced and/or used through said community, the ‘All-Rights-

Reserved’ status does applies by default and does not allow them any

uses that could have any academic and/or business significance.

Slide 17: Copyleft (through exploitation licenses)

Therefore, the only alternative solution is to turn towards ‘Some-Rights-

Reserved’ options which OER allow for, and that Greek Copyright Law

considers through the exploitation licensing option that is permissible in

Law, namely in article 13§2 of Law 2121/1993: The author of the work

may authorize another person to exercise economic rights (exploitation

licenses).

All OER projects make use of exploitation licenses. These are based on

the legal protection that copyright affords, but grant more rights to users.

Creative Commons are exploitation licenses—more specifically, non-

exclusive exploitation licenses. The main idea behind the Creative

Commons licenses lies in the need to ask copyright owners whether they

are willing to agree and give permission in print for their material to be

shared through a generic license that acts as permission granted in

advance. In short, license out and allow for the distribution of material

on the basis of protocols designed to enhance reusability and build out

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the information commons. Copyright law vests copyright in the author

automatically. By using an exploitation license, the author retains

copyright but can specify clearly which rights he or she is prepared to

share with users of the work. Worldwide, the most popular set of licenses

for the implementation of Openness are the Creative Commons licenses.

And the most widely used licensing option for the implementation of

OER is the option offered through the Creative Commons licensing

model.

Slide 18: Creative Commons licenses’ traits

Said licenses are:

1. Non-exclusive exploitation licenses

2. Based on the legal protection that Copyright law affords, but grant

more rights to users compares to what they do the default

Copyright provisions.

3. The most popular set of license for the implementation of

Openness, nowadays.

4. The most widely used licensing option for the implementation of

OER, nowadays.

Slide 19: The 6 Creative Commons licenses

The six Creative Commons licenses are the following:

1. Attribution

2. Attribution + Share-Alike

3. Attribution + No-Derivatives

4. Attribution + Non-Commercial

5. Attribution + Non-Commercial + No-Derivatives

6. Attribution + Non-Commercial + Share-Alike

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Slide 20: The 4 Creative Commons license elements

These six licenses are formed by the combination of the four Creative

Commons license elements (conditions) which are the following:

1. Attribution

2. Share-Alike

3. No-Derivatives

4. Non-Commercial

Which mean:

Slide 21: The 4 Creative Commons license elements

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.

Share-Alike:

You allow others to distribute derivative works only under a license

identical to the license that governs your work.

No-Derivatives:

You let others copy, distribute, display, and perform only verbatim

copies of your work, not derivative works based upon it.

Non-Commercial:

You let others copy, distribute, display, and perform your work—and

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derivative works based upon it—but for noncommercial purposes only.

Slide 22: Positive Externality

By adopting open access licenses such as the Creative Commons licenses

for the release of educational resources and any other academic materials

produced in AIT or elsewhere in the INTRACOM Group, you generate

what economists call a ‘positive network effect’ or ‘positive externality’,

namely a self-interested decision of the authors and right-holders to

adopt the Creative Commons licensing model spills over to parties other

than those who explicitly engage in their decision, namely other

members of the academic community of AIT and the general public at

large. The benefits of Openness and OER implemented through the

Creative Commons licensing model spill over to the public at large who

is thereby given the opportunity to freely enjoy academic materials made

available in the public domain of the Internet. Positive externality

regarding reputation and other intangible values as corporate and

marketable assets is produced for AIT and any other organization and/or

person which practices their interest for the public at large by leveraging

on Creative Commons licensing options and making available via the

Internet intellectual property in the most clearly defined and sensible

way having in mind, at least, the reality in Cyberspace, currently. Also,

the explicitness and unambiguity of Creative Commons licenses as a

means to state the conditional protection of Copyright through the

‘Some-Rights-Reserved’ status which seems to make a good fit with the

situation online provides better copyright protection than the inexplicit

and ambiguous unconditional protection of Copyright through the ‘All-

Rights-Reserved’ status that seems to be incompatible with the situation

on the Internet, nowadays.

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Slide 23: Public Policy for Openness

In my view, and in consideration of the Creative Commons licensing

model’s peculiar characteristics, said model leveraged upon for the

dissemination and use of academic work and OER should not be used

only by private parties, but rather become the backbone of public policy

regarding public academic institutions and copyrighted works produced

by public entities and Governmental bodies. The most significant

beneficial effects for society may come from the adoption of open access

licensing models by impulse of public bodies that among their policy

objectives may have that of institutionally pursuing the maximization of

creative works disseminated through the building and operation of freely

accessible platforms and repositories of digital commons. The first signs

of such a turn in public policy are already there and are evident in the

markets, either local or European or non-European foreign. Said turn in

public policy will definitely affect competition between public and

private organizations in the field of academic and educational products

and services in the sense that the more a competitor implements

Openness and OER the larger becomes the pool of prospective and

interacting academic community members and the better the quality of

academic products and services offered through it.

Slide 24: The Creative Commons video

Spare me a final and tiny fraction of time to conclude my presentation

with this informing and short Creative Commons Video in which

worldwide recognizable personae explain briefly the reasons for

endorsing the Creative Commons licenses.

Slide 25: Thank you!

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BIOGRAPHIES

Professor Dionysia Kallinikou

Is an Associate Professor of Law in Law School of the National and Kapodistrian University of Athens,

and an Attorney-at-Law. She has established a reputation as an Intellectual Property expert, and author

of many books and scientific articles on Intellectual Property. She has served as the Director of

Intellectual Property Organization in Greece, and as a Project Leader in the European Community on

programs related to a variety of Intellectual Property issues.

Marinos Papadopoulos

He is an Attorney-at-Law registered in Athens, Greece. He holds a law degree from Athens Law

School and a graduate degree Master of Science from Boston and Harvard Universities. He has, also,

graduate studies at Stanford University upon Information Technology and Law as well as The George

Washington University upon Management. He’s candidate for PhD in Law at Athens Law School. He

is an active participant in international fora upon issues of Information Technology & Law as well as

Information Society. He is a Legal Lead for Creative Commons in Greece. (Further info at URL:

http://www.marinos.com.gr)

Alexandra Kaponi

She is an Attorney-at-Law registered in Athens, Greece. She holds a law degree from Athens Law

School and a graduate degree Legum Magister from Heidelberg University. She is a Judge-Arbitrator

of the European Arbitration Court on .eu domain names, and an Attorney-at-Law working for the

National Telecommunications & Post Commission in Greece on .gr domain names. She is an active

participant in international fora upon issues of Information Technology & Law as well as Information

Society. (Further info at URL: http://www.marinos.com.gr)