Creative Commons is seeking an Executive Director for CC Learn, a new division that will focus on education, broadly defined — from kindergarten to graduate school, to lifelong learning. The mission of this new division will be to promote vigorous networks of Open Educational Resources: materials offered freely and openly for educators, students and self-learners to use, modify and re-use for teaching, learning and research.

More details. Too bad that in this day and age the person has to be located in San Fran… Shucks.

In doing some research for a book chapter I’m writing, I came across the following oddity: CC and MIT OCW have diametrically opposed interpretations of the meaning of the NC clause of CC’s own licenses.

Creative Commons’ own Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses begins with the following language:

A. Nature of the User:

(1) Is the person making use of an NC-licensed work an “allowable NC user� under the noncommercial license condition? Allowable NC users are:

(a) an Individual (b) a Nonprofit educational institution/library, (c) a Nonprofit organization as defined under US or equivalent law [1], (together with (1) and (2) “allowable NC users�) (d) A commercial copy shop, ISP, search engine, content aggregator, blog aggregator site or similar service provider who, in the course of providing a service at the direction of the allowable NC user, may exercise a right licensed under the Creative Commons license.

(i) No. License violation – this is not a noncommercial use. (ii) Yes. Continue to Question B.

Compare that language with this, from the MIT Interpretation of “Non-commercial”:

2. Determination of commercial vs. non-commercial purpose is based on the use, not the user. Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.

Example: A corporation may use OCW materials for internal professional development and training purposes.

Now, I might be wrong, but this seems like an instance of p = ~p. The CC approach to defining NC is a workflow laid out as a series of steps; the MIT approach completely rejects the very first step in the CC decision making process. Isn’t this problematic?

Of course, MIT OCW has the right to offer it’s users whatever use rights they see fit. And conceptually I prefer MIT OCW’s “nature of the use” definition. [But when working on the predestined-to-failure CC Education license we tried to take this same tack (in fact, this would have been the key differentiator of CC.EDU from the other licenses) but the CC legal advisors "recommended strongly" against, steering us back toward a "nature of the user" approach.] But when Creative Commons writes a license option and says “this is what it means,” can MIT OCW or USU OCW or anyone else adopt that license option, put the icon on every page, and yet try to redefine the option on a “Terms of Use” page?

If a user who was thoroughly familiar with CC licenses came to MIT OCW and saw “By-NC-SA” at the bottom of the page, they would assume a certain set of rights had been granted when MIT OCW is really trying to grant a different set. The big money question, then, is: if this user engaged in a use MIT OCW felt was in violation of the license and failed to “cease and desist” when asked, whose interpretation of the Creative Commons license would the courts apply?

Educators are sharers by nature – the very essence of teaching is sharing what we know with others. And while none of us has the time to work with as many students as we wish we could, the Internet affords us an incredible opportunity to share our educational materials with as many people as are interested.

As the creators of textbooks, lecture notes, and other materials, many educators are interested in their rights with regard to those materials. Worries that we might somehow be throwing away our copyright or the opportunity to commercialize our work keep some of us from sharing. Concerns about other people misappropriating our materials prevent some of us from sharing. And the thought of seeing our efforts distributed and used without attribution stops some of us from sharing. There are many reasons why we, as educators, may hesitate to freely and openly share our educational materials with as many people as possible – even though we wish we could.

So, is there something that can help you share?

The Creative Commons project at Stanford Law School has proposed one solution to the worries many educators have about sharing their materials. Creative Commons has created a license that educators can use to share their educational materials. The license controls the ways your materials can be used as follows:

1. Commercial Use Is Prohibited – Only individuals, nonprofit schools, nonprofit libraries, and other nonprofit groups are permitted to use your materials. They have to use the materials in not for profit ways – you retain the rights to profit from your work.
2. Citation Is Required – Anyone who uses your material must reference you as the author of the material.
3. Adaptation Is Encouraged and Sharing Is Required – Anyone who uses your material is permitted to translate, modify, and adjust the materials for their classroom context (or other permissible context). If modifications are shared, these modified materials must be shared back to you and others under the terms of this Creative Commons License.

The rebranding strategy has become increasingly common for CC (c .f. the new wiki license beta), and rebranding is now an option for us. I therefore propose we rebrand the By-NC-SA as the Creative Commons Education License, and create a special commons deed for anyone using the license (i.e., add some contextual language to the human readable part of the license – e.g., the way the new wiki license beta has been handled).

Thoughts? Please send them to the listserv at http://lists.ibiblio.org/mailman/listinfo/cc-education.

2. disallow commercial uses

3. allow only uses primarily and purposively intended to facilitate learning

4. require that modified works – if distributed – be distributed under the same license

5. require that modified works – if distributed – be distributed with a mechanism for determining what changes have been made to the original

6. allow use by anyone whose use meets the above guidelines regardless of affiliation

7. provide an option which allows the licensor to restrict use to individuals affiliated with an educational institution only

8. expand 7. above to include individuals affiliated with non-profit organizations with primarily educational missions in addition to individuals affiliated with educational institutions

You can add comments to your votes, but *please* include a clear nea or yea for each of the 8 items. Speak now or forever hold your peace. =)

Twelve (12) votes for “a) you would need to provide some reference or ?give credit? to the materials? creator”

Ten (10) votes for “c) that the materials were not to be used commercially”

Five (5) votes for “b) that any changes you made to the materials needed to be shared freely with others”

Four (4) votes for “d) that the materials should only be used in the context of a formal educational institution (e.g., not to be used for self-study by individuals not enrolled as students in a formal school)”

If we were to follow majority opinion here, we are back to a cc.edu composed of an attribution clause, a noncommerical clause, and an educational use only clause. Sort of where we started this disucssion several months ago (with a proposed educational use only clause).

Where do we go from here? Do we return to the “educational use only” language or should we just ignore the data and do what we think is best?

I’ll expose an assumption I am making. I believe that the best way to make inroads with an education license is to have it mean, as reasonably as possible, what people commonly think an “educational license” means. I believe doing otherwise will lead to confusion — people would see a “Educational License” and assume that it means one thing when it actually means another. This behavior seems to encourage violations of the license’s terms. If we want a license that means something else, then we ought to pick another title, to avoid “concpetual namespace issues.” Something like the “Learning License” or something.

Having opened that can of worms, I’ll reiterate that I think the best way to make inroads is to reify what people generally think about educational use in a license with strong legal terms and then waive the banner. Projects like the one Heather mentioned earlier need the license to exist before they can roll forward. So, without any further ado, here is our old working definition of educational use:

You may not exercise any of the rights granted to You in Section 3 above except in satisfaction of both of the following conditions:
(i) You do so in a manner that is directly related to and of material assistance to the primary teaching and learning activities of an educational institution, and
(ii) You do so solely for educational purposes.
An “educational institution” is a school or other organization primarily and directly engaged in facilitating teaching and learning.

I know people hated the strong tie to formal learning, but that’s what educational use means to the US legal system as reported to us by Kevin Rothman, the pro bono lawyer attached to the cc.edu project. And I see very little point in producing a license which is both (a) out of touch with what the common person thinks it should be, and (b) out of touch with what the courts think it should be.

As I’ve said before, a careful reading of this language will show that, while using the court’s historical conception of “education,” this language enables a significant amount of informal learning not available in other education licenses.

Also, notice the final phrase “An ‘educational institution’ is a school or other organization primarily and directly engaged in facilitating teaching and learning.” An organization like Open Education or somesuch might be able to play an interesting role in increasing the number of people who would qualify under this language.

Waiting for your responses….

a) that you would need to provide some reference or “give credit” to the materials’ creator, and/or
b) that any changes you made to the materials needed to be shared freely with others, and/or
c) that the materials were not to be used commercially, and/or
d) that the materials should only be used in the context of a formal educational institution (e.g., not to be used for self-study by individuals not enrolled as students in a formal school), and/or
e) that the materials are only to be used for educational or research purposes.

Please leave your thoughts in the comments section. Answers in the form of “a, c, and d” or “everything but a” would be most helpful, including any comments you would like to make about your feelings or rationale. This data will be used in the ongoing conversation about the Creative Commons Educational Use License. Thanks, and crossposting/linking of this little survey would be greatly appreciated.