[cc-licenses] NC Proposal No. 12: clarifying noncommercial

Andrew Rens andrewrens at gmail.com
Wed May 16 15:53:51 EDT 2012


> Hi Heather
>
> A few questions
>
>> > There is a trend for the Open Education Community to use CC By for open
>> educational resources. For example Connexions uses CC By. Siyavula, the
>> most successful open school textbook project in the world uses CC By.
>>
>> A local open educational repository offers only the CC-BY license. The
>> largest community that actively participates in this service gets around
>> this by placing NC licenses on the actual works.
>>
>
> That is very interesting. Please send us some links so we can see how this
> taking place.
>
>>
>> >
>> > The explicit reference to education in a future non-commercial license
>> would divert some licensors from using CC By resulting in fewer free
>> culture licensed works.
>>
>> This is speculation.
>
>
> >
>
> > NC Proposal No. 12 (Heather Morrison): NC Proposal No.12 Define NC to
> specifically allow educational uses. "(f) NonCommercial means not intended
> for re-sale or re-use of the Licensed Work for private monetary
> compensation (for example, as a means to attract advertising revenue). For
> purposes of this Public License, the exchange of the Licensed Work by
> digital file-sharing or similar means is NonCommercial provided there is no
> payment of monetary compensation in connection with the exchange. For the
> avoidance of doubt, educational use - teaching and learning - is
> Noncommercial, and permitted by this Public License, while including the
> content in a package intended for sale to educational institutions for
> profit is Commercial, and prohibited by this Public License.
> >
> >
> > This would replace the problem of defining non commercial with the
> problem of defining educational use or 'teaching and learning'.
> >
> > Is that either teaching or learning, or must both teaching and learning
> take place?
> > Is that intended to be auto-dicactic use?
> >
> > Is use by British American Tobacco for in house training teaching and
> learning?
> >  Is use by Kaplan.com teaching and learning?
> > Is use by  Pearson incorporates the work into a textbook that it sells
> is that still educational use?
>
> No, according to the language of this proposal:  "provided there is no
>> payment of monetary compensation in connection with the exchange".
>>
>
> I don't follow you here.
> The words that you quote is intended to clarify the file sharing
> exception. In full the sentence reads "For purposes of this Public License,
> the exchange of the Licensed Work by digital file-sharing or similar means
> is NonCommercial provided there is no payment of monetary compensation in
> connection with the exchange." The exchange referred to is exchange by
> digital file-sharing or similar means.
>
> Therefore the "no payment of monetary compensation"  caveat is confined to
> digital file sharing. There is nothing to indicate that it applies to the
> avoidance of doubt mention of education that follows it. You would have to
> redraft your definition if you want that caveat to apply more broadly.
>
>>
>> > What if Harvard incorporates the work into a cousepack that it sells to
>> its students, is that teaching and learning?
>>
>> See above.
>
>
> Since the monetary compensation language is not applied to the education
>> exception in the definition you've proposed this question remains
>> unanswered.
>>
>>
>> > And if Harvard sells the coursepack to all comers is that taching and
>> learning?
>>
>> See above.
>>
> Since the monetary compensation language is not applied to the education
> exception in the definition you've proposed this question remains
> unanswered.
>
>>
>> > If I use the work on my blog that also earns ad revenue and I deem my
>> blog to a teaching blog then is that permitted?
>>
>> Something that is "deemed to be a teaching blog" suggests that it is not
>> in fact a teaching blog. If the primary purpose is ad revenue, than no,
>> this would not be permitted.
>>
>
> The problem that I am pointing out is that I might say and indeed believe
> that a hypothetical blog is a teaching blog but you as licensor might
> believe that it is not. Even if the characterisation of a blog as
> educational or not is something that could be meaningfully described as a
> "matter of fact" it is the kind of issue that on a pragmatic level is
> exceptionally difficult to determine, the result is legal uncertainty.
>
> You might believe that as a matter of fact that the blog is not
> educational but as licensor you won't be able to know what revenue is
> generated, nor what is done with that revenue whether it is spent on
> champagne or creating more educational resources. In other words your
> belief would be speculative. It is not a good idea to draft licenses that
> rely for their definitions on knowledge that is solely held by the licensee.
>
> Would the same purposes be achieved by defining commercial as sale,
> barter, letting and use in a paid for advertisement? Would any of the
> educational uses that you want to permit be prevented by defining non
> commercial in this legally certain way?
>
> cheers
>
> Andrew
>
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