OER, Moral Rights, Traditional Knowledge Labels (TK Labels)

What if we could push OE with resources which technically aren’t “Open” in the CC sense?

Obvious Disclaimer: NAL

I am not a lawyer nor do I play one online.

Context and Previous Discussions

Was just talking about OERs and copyright with a librarian colleague. We’re smack in the middle of the land of the Kanienʼkehá꞉ka.

While copyright can already prove tricky, there’s obviously a lot to discuss about other rights, as they pertain to the resources we adopt, adapt, share, create, and appropriate.
In some cases, these other rights may run counter to the copyright discussion. Part of that depends on the jurisdiction, of course.

Similar issues were on our minds when a group of us (Quebec’s OER Leaders Network) went through Creative Commons Certification together. (Thanks again, @Jennryn & Shana!) @cable addressed some of those concerns.
An important challenge (at least for the Canadian Confederation, with its checkered past) is about traditional knowledge.

And I have a specific case in mind. A freely-accessible learning resource that I find fascinating, about daycare centres among First Nations (particularly Innu people).

I’ve been really impressed with how effective it is, pedagogically.
And, no, this collection (and the specific resources it contains) can’t be qualified as OER. Part of that has to do with the usage rights set up by the people who created it. Even beyond that, there’s an issue to raise about cultural ownership if such resources were to be used in inappropriate ways.

Which led me to prior art, here on Connect: a very effective lightning talk @lbourdages and some comments @iwonajs.

Moral Rights

So, among rights which can modulate the power of copyright are moral rights. While they’re not distinct in US law (in which Larry Lessig originally set Creative Commons, 20 years ago), those rights do exist around the World, including in Europe and South America.

Again, I’m no lawyer. One thing I’ve been hearing about the distinction between moral rights and copyright is that moral rights are typically inalienable and indefinite whereas copyright is often transferrable and always has an “expiry date”.
In some discussions of moral rights, it’s pretty clear that they’re meant to be held by whole social/cultural groups instead of individual interests.
In ethnomusicology, a classic case of such a clash between cultural interests and copyright comes from US folksinger Paul Simon.
Ghana’s copyright law for folklore hampers cultural growth (theconversation.com)

(Another classical case, with other consequences, revolves around a song often used by US folksinger Pete Seeger and eventually used by Disney. 3rd Ear Music Forum - Where does the lion sleep tonight?)

Irish traditional music also serves as a context for similar discussions.
[PDF] All that is not given is lost : Irish traditional music, copyright, and common property | Semantic Scholar

TK Labels

It sounds like labels for material pertaining to Traditional Knowledge have the potential to clarify important specifications as to how the material’s use and (re)appropriation. Some, proposed by Local Contexts, address seasonal protocol, community use, and cultural sensitivity.
TK Labels – Local Contexts

Again, Lauren Bourdages has discussed these in the past and probably understands them more than I ever will.
In fact, people from Local Contexts have also presented during an OEG conference: @garrett @Maui_Hudson @JaneAnderson @smizota @vpoundstone
Meta-Metadata: Traditional Knowledge & Biocultural Notices/Labels for OpenGLAM OER :async: - OE Global 2021 / Asynchronous Interactive Activities - OE Global Connect

So I won’t risk saying more about any of this. I’m fully naïve about those labels and how they’ve been used in practice.

The Idea

Going back to my original idea, putting it in the (in)famous HMW format:

How Might We advocate for Open Education using resources which carry restrictions that exclude them from common definitions of Open Educational Resources?

It can be about resources carrying TK Labels, of course. Or other moral rights. Or even some CC BY-ND/CC BY-NC-ND resources which remain useful in learning contexts though we can only adopt them and not adapt them.


More in this Space

Note: This is one example of an Idea Corner topic - you can start your own here, just make a new topic, post, share, do something, update, repeat!

Thanks, Alex, for crafting a topic with a lot to bite into, as it goes. I hope it does raise some responses.

I wonder sometimes about the strictness some seem to stick to for having to define OER by the presence of a Creative Commons license, like they were handed down as the Six Licenses Written in Stone. Why do we get so focused on specific licenses?

I am quickly scanning the CPE resource terms of use, and while not stamped with one of the six flavors of CC licenses, the terms of use to me read that educational, non-commercial use is allowed. They ask for credit. Isn’t that the spirit of a CC BY attribution license? Why cannot they be attributed, credited with a statement, linking back to their terms of use?

In my small world of open work, as much as I want to be clear with making use of open content, isn’t is sufficient enough to demonstrate a best effort of reuse, attribution, and credit? Do we discard a resource just because it lacks one of the Six Licenses?

And for that matter there is another approach I almost never see described (well I have not seen hardly close to everything) – just ask for permission. Why even rule our copyrighted stuff? Is it not Open Education (capital letters) if you secure permission to reuse something if the entity that created has heard your plans, and said, “Yes, if I retain copyright, you can use my ______”

Why be so strict about staying in the confine of the Six Licenses?

1 Like

Important point.
It’s part of the CC training. In fact, it’s an argument in favour of CC: you don’t have to ask for permission, as long as you follow the rules. Which doesn’t preclude you from asking for permission to go beyond the rules. I’m pretty sure the example @Jennryn or Shana used was someone who wants to include a CC BY-NC resource into a commercial collection (or maybe it was about adaptation).

It goes both ways. In a way, licenses and labels are ways to ask people to treat resources a certain way. Sure, Lessig would argue that CC licenses are important as instruments in a legal system. In practice, they’re signaling an explicit intention. In fact, CC0 Public Domain Dedication is an extreme intention: please, do with this content as you like. No need to attribute anything to me. Unlike automatic PD, which varies across the World, CC0 works anywhere. (After our CC Certification Bootcamp, I’ve renewed my commitment to release more of my personal content under CC0. Haven’t produced much of that content, apart from silly samples and recordings of my noodling. Still, my intention is there.)

There could be a way to build permissions up from CC0. “Please use this content as you will, except for these situations.”

Personally, I find quite a bit of value in the direct connection implied in the process of giving or asking for permission. Along with explicit (and institutional) Open Access, there’s a whole mode of asking authors for a copy of their work. I’m convinced that it’s led to quite a few research collaborations. Something similar is still happening with teaching material, in parallel with OERs. You ask a colleague for her slides and you adapt them a bit to fit your approach. Later, you might reciprocate. Typically, you don’t think too much about the legal status of the document. It’s just plain collegiality.

Goes well with consensus culture and broad dialogue typical in a number of traditional contexts. For instance, during my fieldwork in a freemasonry-like hunters’ association in Mali, 20 years ago, it was part of the way traditional knowledge keepers managed secrecy. And I think there’s something similar among Quebec’s traditional healers.

Something which might be worth a thought, though it might sound really strange in a movement based on regulations: how about an OER system allowing people to easily grant specific permissions on an individual basis? Personally, I care less about actual attribution than about knowing that something I’ve done is used elsewhere. I care even more deeply about the direct connection. And while there are OER platforms which include a way to loosely track when people adopt and adapt resources, I’ve yet to participate in the type of peer-to-peer collaborative learning network that I feel should be at the very centre of the OE movement.

Yes, to this- - we underestimate the benefits of just direct communication. Human to human. Perhaps the focus on licensing which enables reuse without asking directly hampers this from happening (total conjecture)?

I am not sure we need new licenses or systems or means to track, maybe just some attention to what can happen when we contact, thank, express appreciation to content creator/sharers.

My experiences are centered on sharing of photos under CC license via flickr since 2004. Often I would get questions asking permission, and felt very “teacherly” responding with my explanation of what the license meant and that they did not need to ask permission.

Once I got a reply that said, “Yes, I know how licenses work. I just thought you would want to know.”

That changed everything and I never explained licenses again in that situation. After a few rounds of license flipping, I went all CC0 in 2016, as my own experiment in what might happen when terms of the license were “do what you want, no need to ask” – and how valuable it was when people using a photo took the time to thank me, to let me know where a photo of mine was used in a blog post, presentation, book cover, and yes, album covers (independent musicians seemed to be most appreciative).

Try this story on

Again, I do not necessarily think we need tools or systems to enable this, just acts of human communication. When people have let me know where my stuff has been used, I am more inspired to do the same.

Just the act of a random person you do not know, sending a message of appreciation/interest, to me, is more valuable than $. Like you suggest, it opens doors of communication.

I would sure like to hear other people share stories or examples where they maybe have made a connection by communicating with a content owner (be it permission seeking or gratitude).

Like I have a vague memory when I was early in my career at the Maricopa Community Colleges, when @lcbyoung shared how an activity? resource? on water resources she created and shared (maybe before there were even licenses) was reused by an educator in ?? Vietnam? Do you remember this, Lisa? What was the impact?

Agreed. The tools aren’t needed… yet they’re there. I was thinking more about adding features to existing tools than to pile on with tech. That’s directly related to that thread from @BarbaraClass’s question.
Input Sought: Choosing/Using an Institutional OER Repository - OEG Plaza - OE Global Connect
What if our OER repositories enabled meaningful interactions between OER adopters, adapters, and producers? What if the BCcampus Open Collection and OER Commons and MERLOT and others had “social features”?

As much as I dislike Academia.edu (and, to a somewhat lesser extent, ResearchGate), there’s something to be said about those connections we make when we download an article, often casually. Measurement culture and bean counting may make us focus on the money saved by the number of times an OER was used. There’s a lot to be done on the qualitative side of things.

Which affords testing. Personally, I get the impression that there are ways to amplify the human to human contact while maintaining most if not all of the benefits of CC licensing.

It’s a precious anecdote.

And, yes, indie artists can be specialists of gratitude. Speaking of which, @lcbyoung’s lightning talk in Nantes has been on my mind, in recent months. Especially since recognition is becoming an important theme for me and others.
Especially in the context of Keep Badges Weird, with Laura Hilliger and @dajbelshaw.