My Current View on the CC-NC Licensing Option Controversy in OCWs

1. It’s an empirically verifiable fact that the greater number of rights a license reserves, the more people are willing to adopt the license. At the extremes of the continuum, almost everyone takes an “all rights reserved” approach while almost no one takes a “no rights reserved whatsoever” approach. The middle cases can be quickly verified by checking Flickr or any of a number of other sites that show the aggregate behavior of users allowed to choose between CC-licenses. I have done a little writing about this previously.

2. It’s also empirically verifiable that applying the NC clause to a bit of content adds steps to the process of reusing that content for commercial purposes. Yes, it is possible to contact the owner and negotiate a contract granting you rights to make commercial uses. But it is critically important to understand that these additional steps significantly increase the transaction costs associated with reusing content.

3. The elephant in the room that no one wants to acknowledge is that the CC-NC restriction may have no meaning beyond its “common-sense” meaning. In one of the better contributions to the whole debate, Adam Bosworth recounted the following:

My second question was towards the provision in many Creative Commons licenses that indicates content may not be used for ‘Commercial Use’. I asked, what is Commercial Use? Does reposting to a blog that has ads violate the copyright license? Larry Lessig’s answer was basically, “I don’t know”. The reason why is that these things are vague and untested. There are no definitive answers to this question of what is a commercial use. What is an advertisement anyways? Is a link to my resume an advertisement? How about just links to other websites I run? Because these questions cannot even be answered by Lessig, I would never ever re-use content that is tagged ‘NonCommercial’.

Any thoughtful person is forced to arrive at the same conclusion as Adam. If Lessig doesn’t know for sure what the NC clause covers and what it doesn’t, who does? I expect the courts will not. The hardest question of all: Are we being completely honest with faculty when we tell them that the By-NC-SA license prohibits commercial use? True, MIT has had success with cease-and-desist letters…

From 1., it follows that if we want more content to be contributed to the world-wide collection of “open” resources, we should provide NC as an option to faculty. From 2., it follows that even if there is more content in the world licensed “openly,” there will be real, actual costs associated with making certain uses of that content. From 3., it follows that if University of Phoenix ever were to take USU Instructional Technology OCW content and start using it in their classes – and a “cease and desist” request actually went to court – the odds are fair that the NC option would be invalidated.

So what does all this mean? Best case scenario is that we should probably be offering “choice” to our faculty in terms of how their materials are licensed. Let those who want to choose NC choose it (understanding how much protection it really offers), but don’t cram NC down the throats of people who don’t feel they need it. I certainly don’t need it, and yet my material is licensed By-NC-SA, just like all the other OCWs (and yes, we’re talking about internally at USU about “choice” in our OCW). Over time, hopefully faculty will abandon the NC clause. Let them move at their own pace – let’s just not prevent “early adopters” from doing what they want to in terms of adopting more open licensing.

5 thoughts on “My Current View on the CC-NC Licensing Option Controversy in OCWs”

  1. This article seems to still take the point of view of republishers or educators.

    The greatest beneficiaries of open access will be students and learners – people who want to read or use the materials in order to learn, not people who want to republish them for their own personal gain.

    It is true that most corporate – and even some non-profit – entities won’t use material stamped with a ‘NC’ clause. Big deal. Who cares?

    No student working on their own, blogging content, creating mash-ups, or sharing files would ever confuse themselves with a commercial entity, and no such student would be deterred by the ‘NC’ clause.

    We don’t need to know exactly where the fine line is. The important thing is to get out of this producer-consumer mentality. CC-NC is about sharing in a non-commercial community, a network of learners, not content producers.

    This, in my view, is the big danger of relying on publishers and industry in general for any aspect of open access and open learning – the danger of becoming bogged down in conditions and arguments that revolve around their needs and interests, the danger of turning what should be free into something that is (in perhaps everything but name) a commercial enterprise.

  2. I’m with Stephen, the NC part of CC is about creating a “learning economy” whereby people in the educational world are able to share resources openly without the commercial sector using them for their own finanical gain.

    And yes, while less people are likely to use CC at this juncture in time than full copyright -e.g. Flickr-, the tide is changing. More articles like this where CC are actively debated need to occur to raise the profile of CC, as well as test the legal boundaries.

    And start using the CC icon and copy-left symbol on everything out there! The power of the icon-symbol is what is going to make this thing work. I say we start lobying the keyboard standard people to make CC one of the symbols like copyright or trademark! – Still figuring out how to do this though?

  3. Sadly, with reference to the global OER initiative, many of the seedsof educational philanthropy are lying fallow in the fields of the NC restriction of the Creative Commons License.

    Given that the many educational activities are funded by public money — in other words, non-commercial activities — there is an unfounded belief that long-term sustainability of open educational resources will be enhanced if they are restricted to non-commercial activities. Understandably, there is an inherent fear within the academy that naked capitalism could monopolise and consume the well-intended efforts of open content creators. Educators fear that corporates will make a profit from their intellectual efforts and at face value it seems reasonable to apply a non-commercial restriction to the licence. However, the inclusion of the NC restriction has the undesireable effect of closing down an open educational resource in unintended ways.

    1.The most serious limitation is the incompatability of the NC license with other free content projects. You cannot mix content that uses an acceptable free content license with a CC license containing the NC restriction. This means that you will not be able to capitalise on building economies of scale by benefiting from the exponetial growth of free content from other open projects like Wikipedia. For example, if your project uses a NC restriction – you will not be able to include any of the images, sound files or video files of the Wikicommons project which now has more the 600 000 free content resources because the NC license is NOT compatable with the GNU Free Documentation License used by the Wikicommons project.
    2.You may be restricting useful services that would aid the distribution of free content to people who need it most. For example, the NC restriction would not legally permit local community institutions to package print versions of an online OER for resale on a cost recovery basis for the printing and repackaging. The NC restriction would seriously limit the scaleability of distribution channels that cannot be replicated or afforded by public education institutions.
    3.Realistically, it is highly unlikely that corporates will be able to make substantial profits from OERs, simply because the original version of the OER will always be open. Why would a “consumer” pay large sums of money for a commercial version of open content, when they can get the orginal version for free? Remember that large scale distribution is no longer the exclusive domain of large corporations — it can be done by anyone with an Internet connection or a DVD burner.

    In the event that creators of open education resources are concerned with the very low risk associated with commercial activites in the realm of free content, there is a more effective way to protect the freedoms of the resource – namely to use the “share-alike” protection. Share-alike means share-alike, namely that any published revisions and derivitive works must always be released with a share-alike protection thus ensuring the future freedom of the resource. This is a far more effective way of promoting the freedom of a resource, because it encourages community participation because all contributions will remain within the commons.

    The NC restriction results in a non-free license and in my view, should be avoided.

  4. I have to admit that I am completely on the side of not using the NC license. The NC license will create a serious impediment in time. Anything that inhibits the mixing/mashing/enhancement of knowledge is ultimately not a good thing.

    That said, if you’re trying to move toward openness a CC-SA license is so universally misunderstood by faculty that it is a show-stopper. It’s also a show-stopper with university counsel. They just flat don’t get it, and I don’t know how you begin to cross that chasm. it’s a catch-22. To understand it you have to live it, and if you’ve never lived it…

  5. Thanks David for this great post. I am glad to see that the tide seems to be turning. I remember that we discussed this issue extensively on the UNESCO IIEP list and the general opinion then was much in favor of the NC option. The problem with NC is that it “sounds” so right, everybody wants to be part of the sharing and caring non-commercial crowd. Yet, as wayne and david start unpacking the option has no real benefits, and certainly does cause problems. That’s one of the reasons why at the University of the Western Cape we have decided right from the start that our default license is BY-SA. We hope to see others adopt a similar position so that we can start mixing our content without having to worry about lawyers and licenses.

    Kevin – Some good pointers on how to explain the power of openness and make the case for open courseware can be found on the open courseware consortium site at – maybe useful, it’s still an uphill battle …

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