Two interesting legal challenges to Copyright in education

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Note: Any use of the English term free in this post should be understood as libre, or free as in freedom. Non-free subsequently means unfree, taking away freedoms. When I am referring to zero cost, I use gratis.

I make no secret of my opposition to the All Rights Reserved copyright regime. Ever since I found out about the Creative Commons family of licenses, I released every significant work I create in one of the licenses are are compatible with Free Culture, with my default license being CC-BY-SA. The other two licenses I consider acceptable are CC-BY, and CC-PD (Public Domain dedication). All of them allow the society to take my writings, share them, transform them into different forms (eg from a text to an audiobook), translate them in different languages, make new works based on it and so on. CC-BY-SA allows all this under two conditions: make explicit reference to the original (BY), and allow the derivative work to be shared alike - giving the society the same freedoms you enjoyed (SA). CC-BY doesn’t require you to Share Alike, and that might be desirable for works with less cultural significance, like a press release. CC-PD is also known as CC-Zero, and that’s because it has zero-restrictions whatsoever. This is not a pragmatic choice of license for as long as there are predatory copyright giants around, taking stuff of the Public Domain, creating derivatives, and then suing everyone who wants to enjoy the Public Domain basis (the perfect villain here is Disney, whose plots come from Public Domain stories, but they are always pushing for extending copyright term length every time their works are nearing the end of their protection term). So I discourage the use of CC-PD unless it is for something so trivial it feels like it shouldn’t be copyrightable at all. For example, I have some LaTeX template documents I’m going to release on this weblog when I tidy them up – to me it seems like a LaTeX template shouldn’t be even considered copyrightable, so I will release them as CC-PD.

The Creative Commons family though includes two non-free license components that can be attached to the conditions of the free licenses. One of them is the No Derivatives (ND) clause, which takes away most freedoms other than redistribution (it is essentially “All Rights Reserved but you are welcome to make verbatim copies”). Still, ND is the least dangerous of those two non-free elements. The most dreaded component is the No Commercial Use (NC) clause. The idea behind NC is that most creators welcome reuse and remixing of their works, but they are afraid that other people will make more money of their work than they will be able to. For one, I think that is weird to use a copyright license to fix a market problem. But even when assuming all possible good faith, NC is far more vague than ND. There’s no clear definition of what commercial use is – it is left in the eyes of the author (they have to decide to sue), and then a court will have to decide if it was really a commercial use or not. This has chilling effects. I avoid NC-licensed works because I don’t know the whims of every author.

And that’s where the first news item comes in:

CC-BY-NC-SA textbook publisher sues copy-centers for charging for copies

Techdirt News Source

This is how harmful the NC restriction is. You have a publisher that claims to release free textbooks (and I assume receives its funding specifically for this reason), that comes out claiming that unless you own the whole chain of production required to print their works without relying to copy-centers (who charge you for the copies), then the intermediaries who charge for the paper and the toner consumed are making “commercial use” of the work and they are liable. At the face of it this is ridiculous – I believe that many people who choose an NC license for their works do not actually consider photocopying a commercial use. But NC is so vague that it allows this interpretation.

The course of this lawsuit will either show that NC is a terrible license (if the publisher wins), or it will make it only a tiny bit less vague (if the publisher loses). In any case, NC is not a free-culture compatible license, and it shouldn’t be used by anyone who wants to build a pool of open knowledge for the whole society to benefit.

But to some more heartening news:

Indian court upholds educational use exemption from Copyright

Times of India News Source

Major publishers like Taylor & Francis where suing the Delhi University for the (I think) generally common practice of course-packets, which are basically collections of photocopied chapters from various different textbooks. Those chapters are relevant to the course, but the books they come from as a whole are not, so the professors instead of assigning 5 textbooks and only doing two chapters from each, they assign a main textbook and then compile a coursepacket for their students to photocopy. The students could, completely legally, photocopy the relevant chapters from the facilities in the university library. That would be several hundreds of students queuing up in front of the one or two photocopy machines the library has to copy the same books. The publishers claimed that it is no longer legal if this painful process is outsourced to people who will do the copies for the students. It is a frivolous distinction to make, and India realises that.

Small copyright exemptions though do not fix the larger problem, that of knowledge being locked behind paywalls and threats of litigation. We need to write our own textbooks, and license them under social terms. For me, the best license to do that is CC-BY-SA. Wikibooks is one such hub of social textbook creation.

Category: News

Tags: Copyright, Education, Free Culture, NonCommercial, Textbooks, Creative Commons