I should preface this with a reminder that I am not a lawyer. I don't play one on TV, nor the internets. But as someone who creates and publishes a fair amount of content under an unrestrictive Creative Commons license, I have some thoughts on the topic.
I read David's post on the proposed new Open Education License, and I've been struggling to understand why a new license is needed. Here's the comment I left on David's post:
David, I've been struggling to understand why a new license is warranted. How would this benefit either the original creator, or the content "repurposer" beyond what a plain vanilla Creative Commons Attribution license provides? That license allows derivative works, doesn't require share-alike (although that can be added), and requires attribution. It also allows commercial use (of the original and/or derivative works) - or not, if desired.
Would it be as effective to just recommend a particular combination of CC bit flags?
From the post, David mentions that the new license is strongly inspired by CreativeCommons, using the same language and terminology, right down to the compatible XML description of the license:
But, if the license can be described using CreativeCommons clauses, why not just promote a particular flavour of CC license for Open Education content? It could be essentially a branding/marketing effort, to promote the Creative Commons Attribution license:
This work is licensed under a
Creative Commons Attribution 3.0 License.
This flavour of CC is pretty open - it explicitly allows copying, modification, redistribution, and distribution of modifications. It also (optionally) allows commercial use of the content and derivatives. All it requires is attribution. (more on this below)
By building on CreativeCommons directly, it would take advantage of localized versions of the licenses, and wouldn't "fork" the mindshare of "open" licenses. Under the proposed license, a contributor has to decide if they want to use the more common Creative Commons series of licenses, or try out the new OEL.
David mentions that one goal of the new OEL license is to do away with the Attribution clause, because that may cause friction when content from one culture is used in another. A Sunni-created work might be frowned upon in a Shia-created derivation, if it was obvious through attribution that the work originated from a Sunni group. I don't buy that argument - if there is that level of cultural intolerance, it will go beyond the name mentioned in the credits of a derivative work. The cultural origin of a work is inherent in the work, not just in the attribution byline.
I firmly believe that the requirement of Attribution is essential in sharing content. It brings along the concepts of trust, responsibility, reputation, and even simple credit. I don't believe that many people will willingly expend resources (time, energy, money, social capital) in the construction of valuable educational content, only to cast if off in an essentially Public Domain license. They will want to know that they will at least be given credit for creating the work. And consumers/reusers of these works should be able to follow the provenance of the derivatives, to go back to original sources. Removing Attribution as a requirement breaks that chain.
Also, it's important to keep in mind that these licenses are not exclusive. If Attribution is impossible, contact the creator of the work and arrange a separate license. This could involve a fee, or just an agreement. This is already possible under Creative Commons.