Beyond Copyright: the Ethics of Open Sharing

In a world where internet and mobile technologies are mainstream, communities, groups and organisations routinely produce materials in a wide range of digital formats. This position paper looks at some of the ways in which the impacts of openly sharing these materials, or deciding not to, is an ethical decision. This paper also looks at some of the ways in which sharing openly can be considered in terms of an organisational commitment to social responsibility.

Our purpose is not to ‘have the final word’ or to disallow different views and opinions in relation to the ethics of open sharing. The paper focuses on a narrow band of activity, and we appreciate there are many issues that we aren’t able to address — we hope our paper sparks further discussion and contributes to ongoing debates. We highlight key issues we believe need to be considered and make practical recommendations for policy and process development, but we cannot and do not attempt to provide definitive answers for specific cases or every circumstance that might arise.

Working definitions and scope

Our definitions of ‘ethics’ and ‘open sharing’ are necessarily limited for the purposes of this paper. ‘Ethics’ is a complex, contested and living social and historical field. We address it here primarily in relation to the principles of equity, diversity and inclusion, acknowledging that these principles and their application are themselves not universally agreed upon.

By ‘open sharing’ we mean the act of sharing digital materials either under an open licence, or by applying a public domain tool. This paper particularly focuses on the decisions that communities, groups and organisations take to share the materials they produce — including code, data and databases, images, software, sound and video recordings, written content, and 3D models — openly or not.

We are unable to look at ethics in relation to the different intellectual property laws that open licences run alongside. Neither are we able to look at arguments about the merits of the different open licences, although it is clear that this is a decision with ethical dimensions which deserves detailed attention.

Open sharing as ethical practice

The decision to share openly (or not) is an ethical decision. Creative Commons’ open licences were developed to supplement the limitations of copyright frameworks and empower individuals and organisations to provide broader, conditional permissions that work with the distributed nature of the internet so that works and ideas might “…foster creativity, innovation and collaboration, thereby enabling progress in addressing global challenges; […] open sharing is inherently an act of social solidarity, reflecting a belief that we all have a stake in our collective body of creative and intellectual wealth” Creative Commons’ Strategy 2021–2025 (2020).

Sharing resources openly can deliver social benefits

Many organisations have a commitment to social responsibility and public good, and they should consider how sharing openly can help them fulfil these commitments. The significant social value of sharing openly has been identified and demonstrated in many areas, including:

Rebalancing the historic record

Longstanding marginalisation of people from specific groups has resulted in significant representation gaps in global knowledge and culture, as achievements have been systemically ignored, erased, under-reported and under-valued. Openly sharing resources can help to secure these ‘missing’ records, helping redress the historical record. Campaigns such as Women in Red, VisibleWikiWomen, and Art+Feminism use Wikipedia and other platforms to enable people from around the world to openly share information and resources that help rebalance the record of human achievement by including contributions made by women and non-binary people.

Healthcare

Open sharing supports access to and dissemination of anonymised healthcare information that helps save lives and fight misinformation. During the COVID-19 pandemic, The World Health Organization and Wikimedia Foundation made use of open licences to expand public access to up-to-date and reliable information. In this post, Creative Commons outlines how open policies and open sharing has enabled reliable, up-to-date scientific information to be quickly created, developed and disseminated, so that the public and health professionals can respond effectively in a crisis. Sharing openly enables people around the world to understand healthcare issues and contribute to an effective response.

Education

The UNESCO Recommendation on Open Educational Resources (OER) calls for learning materials to be openly licenced as a condition of delivering the UN’s Sustainable Development Goals on Quality Education and Gender Equality, and to enable the collaborative practice required to deliver all of the goals.

Language and cultural heritage

Languages that have been historically marginalised, prohibited or subject to systematic erasure are being revitalised through open sharing. For example, The Nigerian Language Oral History Documentation Project acknowledges the core role of language in people’s values and identity, and is recording and openly sharing the oral history of some of the over 520 languages and dialects spoken in different parts of Nigeria.

The digitization of Balinese palm-leaf manuscripts held in museums and private collections led to the creation of a Balinese language Wikisource (an openly licenced repository of primary sources). This is both a new digital library and a place where young people can learn to type in Balinese script.

Other types of cultural practice are preserved and openly shared in projects such as Wiki Loves Folklore, which collects and promotes media about activities, foods, festivals and traditions.

Government and publicly funded organisations

Many organisations argue that public funds should be used for public good, and that open sharing can result in increased quality, reduced costs and innovation. The principles of the Digital Nations Charter, the Open Government Declaration, and many national open government action plans and policies are predicated on the use of open licences and public domain tools. The Cape Town Open Education Declaration states that “taxpayer-funded educational resources should be open educational resources”. The global Public Money — Public Good campaign led by Wikimedia Deutschland also supports the open sharing of publicly funded materials.

Not everything should be shared openly

The decision to openly share or restrict sharing materials can have far-reaching social consequences. Frequently, open sharing creates opportunities and benefits, but on occasion it may exacerbate or create inequality, or may result in both benefits and harms.

It may not be ethical to share certain types of material publicly, regardless of the copyright conditions. Examples of this include content that might compromise national security, directly identifies vulnerable individuals or groups, or that could result in the destruction of endangered ecosystems or species.

Where materials can be shared publicly, there may be good reasons not to share these under an open licence, or under a specific type of open licence.

Open licences provide additional levels of permission for use and reuse. Those permissions are irrevocable and perpetual, that is, as long as the terms of the licence are adhered to by users, they cannot be revoked by the rightsholder and are provided for the life of the copyright. This makes understanding the licence terms and understanding the practical meaning of the licence critical to considerations about when to apply it. We have identified three specific areas that organisations will need to consider in relation to the affordances of open licences:

Cultural appropriation

Organisations should ensure that individuals and communities that may be directly affected by any decision to share materials under an open licence are included in the decision-making process. One important model that demonstrates this is the UN Declaration on the Rights of Indigenous Peoples which reaffirms Indigenous rights to self-governance and authority to control their Indigenous cultural heritage. Decisions about sharing such material should be made with reference to the CARE Principles for Indigenous Data Governance and Right of Reply.

While the permissions provided by open sharing can support many benefits, these same benefits may be felt as intrusive. Ethical open sharing may require working in partnership with individuals, communities and groups and ensuring their voices are heard and approaches respected. While in some cases openly sharing resources can help to promote cultural heritage and redress gaps in knowledge, in others it may be experienced as cultural insensitivity, disrespect or appropriation — for example, in relation to sacred objects or stories and funerary remains.

Meaningful consent

Gaining meaningful consent is important in relation to openly licencing works.

Decisions around whether to openly licence content depicting or created by children and young people should be considered with caution. Organisations need to adhere to good online safeguarding practices in relation to making images, audio and video of children and young people available online, regardless of how these are shared. While children and young people own the intellectual property rights arising from any original works they produce, they may not be old enough to legally provide consent for these to be used by others or openly licenced.

Where children and young people’s consent is not legally recognised, parental consent may be required by organisations wanting to post materials depicting children and young people, or created by them, online. Regardless of the legal status it is still important to gain agreement from the child or young person themselves. Ensuring children and young people understand what is being asked of them and can give permission is a complex area, even without considering the significant permissions provided by an open licence. Organisations will need to seek a balance between empowering young people to make a positive contribution to open knowledge and open culture while also considering their ability to understand the implications of the licence. They will also need to consider the third area we identify — their right to withdraw consent at a later stage of their lives.

Historical consent should also be carefully considered before choosing to openly share archival materials. Permission may have been given before the mainstreaming of networked technologies, search engines, digitisation and the development of open licences — so consent may have to be sought again in order to acknowledge the reach and scope of openly shared digital material.

The right to withdraw consent

Although some countries formalise the right to be forgotten or withdraw consent (notably through the General Data Protection Regulation (GDPR) in Europe), recognising the right to withdraw consent at any time is an ethical approach which ensures its validity.

Many people provide important social and historical records through personal accounts and may only want to do so on the grounds that access to these accounts be limited or restricted. Others may feel that the visibility of their story is of the utmost importance and in these instances, the ethical decision may be to openly share these materials, to ensure that as many people as possible can access and make use of them. Organisations must respect individuals’ right to withdraw consent in relation to personal data held by them, and should ensure individuals who chose to apply an open licence to works are clear about the potential limitations of withdrawing copies of those materials at a future date.

Recommendations for ethical, open practice

1. Organisations need open sharing policies or positions, and these should consider social benefit

Senior leaders should ensure their organisations are clear about the benefits and disadvantages of open sharing so that the decisions they make can align to their commitment to social responsibility. Ensure your organisation’s governing body has considered open sharing and is clear about the materials it will and will not share openly, and why.

Understanding or developing a digital access policy is a useful way of exploring your options and developing basic copyright literacy, which is essential for any organisation sharing materials online. Many funders require materials to be shared under an open licence (for example, the Bill and Melinda Gates Foundation, the Hewlett Foundation, and The National Lottery Heritage Fund), and partner organisations may have their own commitments to openly sharing materials. Many repositories, as well as global platforms like Wikipedia and Wikimedia Commons, require content to be in the public domain or shared openly.

In some circumstances the decision not to openly share materials may limit the value and reach of your work, as well as the contribution your organisation can make to its field. The experience of successful case studies such as those of the Rijksmuseum and the New York Public Library demonstrate that the transition to open sharing does not significantly increase the risk of misuse of works. Ensure your decisions are based on a robust understanding of copyright rules and open licence requirements, and with realistic risk and financial information.

2. Policies and processes for sharing materials online should be periodically reviewed, opportunities for challenge should be promoted

Ethical practice in relation to open sharing is not just a question of applying licences and tools to support better access, but also about the quality and integrity of the frameworks and processes that support them.

Support informed challenges to your sharing policies, develop exceptions processes, and talk to similar organisations that publish materials openly online. Complex cases will require close review and decision making, so build in review processes that enable you to consider risks and benefits, and develop these as you learn more about issues relating to the materials you publish and how the open licenses work in practice. Be proactive in ensuring individuals and communities that may be affected by sharing or openly sharing materials are included in the decision making process.

3. Ensure the licences and tools you use to share openly are fit for purpose

Some frameworks for open licences and tools are legally robust, international recognised and well maintained, for example, the Creative Commons suite of licences and tools. Others are not. Poorly developed or maintained licences may not provide strong protections, and their use may add additional layers of legal risk and ethical concern.

The choice of which licence to use is an important one. Too restrictive a licence may unnecessarily limit benefits, so any decision should be made with a clear understanding of what permissions an open licence or public domain tool provides and what this means in practice.

4. Gaining informed consent is critical

Materials should not be openly shared if consent to do so from the rights holder or from a recognisable individual has been gained under false pretences, under duress, or if no specific consent to share material under a specified open licence has been given.

5. Keep openly licensed materials in circulation….

Where attribution is a requirement of your open licence, maintaining clear guidelines on attribution, and ensuring these are understood by staff and users is an important way of keeping materials in circulation. Attribution statements provide important information about resources, including who has created them, where they can be found online, and the licence they are shared under.

6. …and keep materials in the public domain in the public domain

Some organisations blanket-release non-contentious materials under open licence. However, applying an open licence to material that is already in the public domain is bad rights management, and it unnecessarily restricts potential reuse. Increasingly, organisations are adopting policies that ensure reproductions of public domain materials remain in the public domain through the use of public domain tools. The European Union enshrined this fundamental principle in Article 14 of the Directive on Copyright in the Digital Single Market.

In conclusion

Open licences and tools provide innovative ways to supplement and extend user rights and exceptions to intellectual property rights recognised by law. Tools and platforms for openly sharing materials provide the technical and legal infrastructure critical to leveraging the powerful affordances of technology to deliver wider social benefits.

Organisations need to be alert to the potential benefits that may be missed out on by not openly sharing materials, as well as the circumstances when sharing content under an open licence may fail to adequately recognise the rights of others. Ethical approaches and values are not themselves historically or culturally absolute, and because of this, the ethics, values and voices of individuals and communities must be properly weighed within their contexts. Organisations can support this by ensuring their policies and practices embrace challenge and ongoing development, and by including ethical considerations in their decision making.

List of Contributors

This policy position paper is the product of one of the four global working groups established in 2021 by the Creative Commons Copyright Platform, a global network of copyright advocates and practitioners, engaging with an emerging set of challenges affecting the open ecosystem.

Josie Fraser (Lead, UK)

Alwaleed Alkhaja (CC Qatar)

Susanna Ånäs (CC Finland)

Tanya Anderson (CMH Canada)

Danièle Bourcier (CC France)

Delia Browne (National Copyright Unit Australia)

Lorna M. Campbell (Wikimedia UK)

Kyle Copas (Global Biodiversity Information Facility, Denmark)

Lucy Crompton-Reid (Wikimedia UK)

Deborah De Angelis (CC Italy)

Stephen Downes (The National Research Council Canada)

Rajeeb Dutta (India)

Shanna Hollich (CC USA)

Kathryn Kure (CC South Africa)

Evan Leibovitch (CC Canada)

Alice Macpherson (Kwantlen Polytechnic University, Canada)

Ariadna Matas (Europeana, Netherlands)

Tomo Nagashima (Carnegie Mellon University, US/Japan)

Marcelle NGOUNOU (CC Cameroon)

John Okewole (Nigeria)

Isaac Oloruntimilehin (CC Nigeria)

Sarah Pearson (CC HQ, USA)

Jonathan Poritz (CC USA)

Karina Rodriguez (University of Brighton, UK)

Alek Tarkowski (CC Poland)

Freyja van den Boom (BU, Sorbonne, ITforChange, France)

Brigitte Vézina (CC HQ, Netherlands)

Andrea Wallace (University of Exeter UK)

Max Mahmoud Wardeh (CC UK)

Paul West (CC South Africa)

Michael Whitchurch (USA)

The group is grateful for the input of colleagues from across the world who generously contributed to a publicly shared draft. These include Dr. Robert Farrow, The Open University (UK) and Dr. Daniele Metilli, ISTI-CNR (Italy).

This work is shared under a Creative Commons Attribution 4.0 (CC BY 4.0) Licence. Please attribute it as “Beyond Copyright: the Ethics of Open Sharing (2021) by Josie Fraser et al./Creative Commons Copyright Platform Working Group 4, shared under CC BY 4.0”.

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Josie Fraser

Josie Fraser

I work in ethical & inclusive digital transformation & policy, helping people, sectors & governments get the most out of technology