development of an education license or license option for Creative Commons

[David Wiley <david.wiley AT usu.edu>]

Downes, Stephen wrote:

Hiya,

My opinion is that we need resolution of the issues raised in the original
discussion of the concept on the Creative Commons website:
http://creativecommons.org/weblog/entry/3633 The only draft I am aware of
appears on this page.

The current draft of the cc.edu option was posted on this listserv on June 19 and is available from the listserv archives at https://lists.ibiblio.org/sympa/arc/cc-education/2003-June/000001.html

 Some significant objections and concerns were posted
by several writers, including myself. 

Specific concerns included:

- the suggestion that CC already granted the necessary rights (Schwartz,
Carver) - Brown responds, "Our current set of license options does not allow
a licensor to permit educational uses per se." Wiley responds: the education
rights would be a subset of the standard CC rights.

I think this is related closely to the next concern.

- the suggestion that educational use should be de facto part of the CC
project (Ray, Gerv). Ray: "I'd vote to make educational use part of all
licenses rather than something that needs to be explicitly granted."

I think this shows a misunderstanding of the licenses. Unless a type of activity is specifically prohibited (like the noncommercial clause allows one to do) educational use is acceptable under the standard cc licenses. The point of an educational use license is to allow people to license material for *only* educational uses. In other words, the point of cc.edu is to allow people to reserve more rights than with the standard cc licenses, but still not all rights.

- non-commercial use is essentially the same thing as educational use
(Carver)

There are several very large categories of noncommercial use which are not educational; research and governmental use seem like two of the largest.

- CC.Edu favoring one type of educational use (Wiley, Downes). As Wiley
writes, "this license would make it impossible for anyone to "do education"
except for universities and other formal organizations."

Correct. If you define "informal educational use" as anytime someone uses something and learns from it, then almost any use is educational, and there would be very little distinction between the noncommercial use option and an "informal educational use option". At first I shared this concern about wanting to support informal uses, but realized that the noncommercial options covers this. And I believe that people who were previously willing to use the noncommercial clause will continue to do so.

However, I also know that there are people (many of whom are my colleagues) who would make materials available for educational use, but not governement or military uses. In other words, there are materials in existence that could be freely supporting learning, but currently are not (within the cc infrastructure). By providing a specifically educational use only license, we will expand the amount of content available for educational use.

As for the formal versus informal issue, I believe we have done a better job in the current draft than others have previously. Many educational use licenses are limited to employees of institutions acting in their formal capacity. Under the wording of the current cc.edu draft, students in informal study groups outside of class will be able to use materials, for example.

- the educational use license would be used for commercial purposes
(Pormann): "that is really just the bait to hook you into viewing ads, or
buying consulting services, or whatever."

I don't really have a response to this "concern." I guess I don't really understand it. I think the concern is that free content might be given as a way to get people to see ads? In other words, it might work like TV. I have no problem with that personally. I would like to understand better why this is a problem.

- It creates an uneven balance between commercial and non-commercial
services (Pormann): "Thus a big company could advertise that they have their
proprietary content *AND* the CC-enabled content. The CC-author could only
post CC-enabled content. Hardly seems fair?"

The primary benefit is described as follows:

- "this license option might attract copyright holders who wouldn't
otherwise consider CC." (Hallman)

An alternative, the CC anti-license, "which forbids any educational
classroom use" was proposed by Hove.

Again, this misses the point of the licenses as described above, and does not gain us entre to the set of works available for educational use only (e.g., not governmental use).

In view of these comments, the following would have been (and, in my view,
still is) an appropriate course of action:

1. Discussion, debate, and decision on whether there ought to be a CC.Edu
license. Several of the objections were directed at this level. Some
responses were offered. It is not clear on what grounds the decision to
proceed was made.

I would appreciate your thoughts on my responses above. Specifically, I would like to know of scenarios in which the cc.edu license would lead to a decrease of materials available to support education, as that is the primary goal here. If such scenarios exist, then I believe we should take a hard look at the question of "to cc.edu, or not to cc.edu". More on this below.

2. Even given whether such use ought to be described, the significant
question of whether an 'education' subuse can be identified needs to be
addressed. This is especially the case with the current draft, where
'educational' really refers to traditional institutions.

I would appreciate your comments re: my brief arguments above.

3. Finally, the potential use - or abuse - of educational licensing by
commercial publishers is a concern. Educational use typically comes with
strings attached, either in terms of 'bundling' with commercial content,
'no-compete' clauses or privileged repositories, or tracking and reporting,
as required, for example, under the U.S. TEACH Act.

Could you provide a specific scenario of bundling free educational content with commercial content? On the surface, this seems to be oxymoronic. If I understand what you are saying about bundling, one would be required to pay for commercial content before getting access to free content. If that's so, then that's not free content. Either way, there's certainly no mechanism for expressing these kinds of bundling rights reservations in the cc infrastructure. Technically it is not even be possible to license content through cc AND apply terms other than attribution, noncommercial, no derivative works, and share alike (hopefully education soon!). I don't think bundling is so much of an issue since, according to the cc baseline rights and restrictions,

<quote>

Every license allows licensees, provided they live up to your conditions,

• to copy the work
• to distribute it
• to display or perform it publicly
• to make digital public performances of it (e.g., webcasting)
• to shift the work into another format as a verbatim copy

Every license

• applies worldwide
• lasts for the duration of the work's copyright
• is not revocable

</quote>

So even if they were bundled, the first person to pay would have rights to distribute, etc. This might call for a new bit of language in the option which states that the cc.edu is the entire and complete statement of rights reserved and granted with regard to the content.

Also, I'm not sure why you ref the TEACH act and tracking and reporting requirements. These would apply to copyrighted content used in educational ways without express permissions. A cc.edu licensing would completely relieve this requirement, since the copyright holder has chosen to explicitly permit educational uses. I may be missing your point, but I think your argument argues against you. =)
 

These considerations - which in my view are not balanced against the
inducement to attract copyright holders to license content - lead me to
argue against an education-specific instance of Creative Commons.

Obviously I disagree, but I'll wait for your next response.

In my view, a CC.Edu license would hinder the development of free content
because the requirements of commercial publishers would be 'built in' to the
system of distributing free content, creating an overhead that all must bear
in order to satisfy the needs of the few.
  

What requirements are you talking about? DRM? Once content is cc.edu'ed, and rights to distribute, etc., are granted for the duration of the work's copyright, it need only be posted on a webpage. Again, I don't follow you here.

No formal mechanism for reaching a resolution of this (or any) decision
(that I am aware of) has been proposed. I think that additional
participation in these discussions would require that some framework for
open and democratic decision making would be essential.

That's the purpose of the listserv -- to allow discussion and facilitate reaching a resolution on the issues. If by formal mechanism you mean Roberts' Rules of Order and voting, etc., then you're correct. I certainly hope we don't reach the point where such a schism exists that such a thing, i.e. formal votes where dissenting voices are silencesd by the majority, is necessary. I know the Sampling project has not needed one. Our goal is to reach consensus through discussion. If we're unable to help that happen, we may well explore a more formal option.

Looking forward to your thoughts,

D