A Case Study in Obstacles to and Strategies for Negotiating the Relicensing of Third-Party Content

Over the past four years, the Saylor Foundation has developed over 300* college level courses, made up of nearly 28,000 educational objects (essays, textbooks, videos, assessments, etc.).  Initially, our goal was to use the wide breadth of resources available online to build these courses.  We encouraged the use of openly licensed and public domain materials, in order to give our users the most flexibility.  However, in an effort to include the highest quality materials, we also allowed the use of open-access (i.e. protected by copyright, but freely available) material.  But populating our courses with third-party links led to some instability, especially when websites changed or content was removed.  In an effort to combat this issue, the Saylor Foundation launched an initiative aimed at persuading content creators (professors, organizations, universities, etc.) to either:

  1. Relicense their content under a Creative Commons license; or
  2. License their content in a way that would allow the Foundation to mirror it.

In our early negotiation experiences, we found content creators almost universally in favor of making a separate agreement with the Foundation over adopting an open license.  Many of them were unfamiliar with the concept of an open license, and even after detailed explanations, they remained resistant.  Chief concerns included the loss of control of materials, commercial reproduction, and loss of traffic/ad revenue.

Loss of Control

Discussing open licenses is a battle of perception.  Many content creators come into the conversation with preconceived ideas about the quality of open content (generally, as inferior), or of the alleged direct correlation between open licenses and instances of illegal use.  They worry that by allowing others to edit and change their content, their reputations will suffer.  Despite the “Removal of Attribution” clause in the licenses, they are quick to point out that “Google doesn’t forget”; in fact, Google often times caches documents permanently.  Another worry comes from Content Creators who regularly update their content.  There is no infrastructure in place to compel users that have downloaded older and outdated versions of a work to use the new one instead.  Having multiple versions with differing information can present a confusing picture to students, and that is a persistent worry to educators.

Commercial Reproduction

This issue is fairly straightforward.  It can be very difficult to disabuse professors of the notion that there are commercial publishers waiting in the wings to scoop up anything licensed under a CC-BY license and charge unsuspecting students for it.  While they are sympathetic to the idea of open, they do not want to enrich folks that would profit off of exploiting students.  While it is true that publishing companies would need to compete with the free version, it is not overly cynical for professors to imagine publishing companies using their entrenched paths of distribution to take advantage of students.

Loss of Traffic/Ad Revenue

This concern occurs most often with content creators who have posted videos to YouTube and rely on the advertisement revenue that they derive from the platform.  Unfortunately, there is no system on the YouTube platform to credit an “original poster” for views of a reposted video.  Therefore, any content creator dependent upon views (or traffic, in the case of Google Ads) loses out financially by applying an open license.  Such a system of tracking views, and crediting an original source would be a huge boon to open licensing, as it would incentivize its use tremendously.

With the launch of the Open Textbook Challenge (OTC), the Saylor Foundation stepped into the realm of paying a content creator to relicense his or her work under a Creative Commons license.  We were willing to offer a $20,000 honorarium to a textbook author who relicensed his or her text under a Creative Commons Attribution (CC BY 3.0) license and aligned that text to our course structure.  This initiative was met with limited success.  While there were numerous submissions, many did not meet the approval of our review committee.  Reviewers expressed concerns over both the quality of the writing, as well as the content.  Overall, four textbooks were accepted: Mathematical Analysis I by Dr. Elias Zakon, Elementary Linear Algebra and Linear Algebra: Theory and Applications by Dr. Kenneth Kuttler, and Computer Networking: Principles, Protocol, and Practice by Olivier Bonaventure.

Despite the modest success of the OTC, the Foundation realized that we needed a more flexible tool to address some of the content gaps in our courses.  This led to the development of Saylor’s Direct Relicensing program.  Through this program, the Saylor Foundation expanded the types of content for which it was willing to offer a monetary honorarium in exchange for relicensing under a Creative Commons license.  We created a scale through which we determined the value of a particular collection of resources.  This scale ($500-$10,000) was based upon two factors: course necessity and the license the content contributor was willing to choose.  We offered greater compensation for a more open license (BY, BY-SA) than would for a more limiting one (BY-NC, BY-NC-SA).  However, we chose not to incentivize relicensing under any of the no derivative licenses.  We determined that it would be more cost effective to simply create our own replacement resources under a more open license than to accept the terms of a no derivative license.

This new approach yielded positive results.  Over the course of a year, the Foundation succeeded in relicensing over 5000 pages of content, and over 300 lecture videos in six unique disciplines.  By offering compensation, we were able to mitigate the second and third issues discussed above.  This was enough to change the minds of many of the content creators that we had previously contacted.  In the winter of 2012, the Saylor Foundation switched to a model that only permits the use of openly licensed or public domain materials in its courses.  By using the methods discussed above (Outreach, the OTC, and Direct Relicensing) and creating new openly licensed content ourselves, the Saylor Foundation hopes to have courses that are entirely open, re-mixable, and redistributable.

*Some of which have yet to go live at the time of writing.

One thought on “A Case Study in Obstacles to and Strategies for Negotiating the Relicensing of Third-Party Content

  1. May 6, 2013

    Kamil Śliwowski Reply

    great and very practical text! We’ve done polish transtaltion (also CC BY licensed) here http://conasuwiera.pl/negocjowanie-zmiany-licencji-zewnetrznych-zasobow-edukacyjnych-problemy-i-strategie/

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