development of an education license or license option for Creative Commons

["Sanford Forte" <siforte AT ix.netcom.com>]

Greg London has brought forward some very powerful reservations.

One of the problems with licensing something as "non-commercial", or "only
for education" is that there are always going to be exceptions to the rule,
sometimes significant exceptions.

What if a commercial publisher wants to take an open source project into the
commercial realm, for profit?

What if that commercial publisher (say, Pearson) finds itself in a
commercial position that has begun to force it to consider taking less
margin, and adopting new distribution and content aggregation models in
order to survive?  - i.e.  the publisher is forced to reduce the price of
its for-profit offerings in order to compete with nascent open content
efforts that are deemed "educational"?

Are we to eschew significant, already-established commercial educational
publishing distribution channels just in order to "protect" open content,
and keep it "pure" of commercial distribution for profit?

What happens of a for-profit publisher sets up a non-profit educational
publishing arm? For that matter, anyone could do this. How does this license
deal with that scenario?

Could it be that we're heading in a direction that is so fraught with fine
distinctions of delineated educational "use", and/or "fair use", that it
will render open source educational licenses relatively ineffective in the
long run, because more and more "special exceptions" will have to be written
into the licenses, thus confusing potential authors? There is a special kind
of paralysis that accompanies too many exceptions and distinctions in any
endeavor. In some ways, the distinctions being called for appear to
complicate the process somewhat, and make it more opaque.

Who is going to want to take the time to understand all this? (open source
'copyright' attorneys?).  :)

Maybe some academic authors will take time to understand these distinctions,
because they're often in the business of publishing information for
consumption, as part of their job description. Thus, professional educators
have the motivation to what to learn about and use open source licenses.
It's part of their job, and will help them to share (and profit
professionally from that sharing).

However, what happens to the educated or skilled "non-academic" who has
substantial intellectual capital, and wants to share openly with anyone who
wants to use what s/he has created, and doesn't care how it gets out there,
as long as people are able to use it? The latter scenario is far more likely
in the long term (as content production and distribution become more facile,
and cheaper to afford). Many of the current attempts to 'boundary' open
source content for education use may discourage those who simply wish to
create for wide-open distribution.

What if the open content in question is better than anything out there - and
created by a non-academic, but doesn't have a distribution champion that
enables it to get into the hands of educators and learners? What if the best
way to distribute this material *is* through an established commercial
publisher, who is able to make a profit, albeit a smaller profit than
heretofore realized by educational materials created in "textbook factories"
(as one example)? In fact, what if the commercial publisher wants to
distribute and stands a chance at significant profit under current
commercial publishing models.

I wrote something similar to the above in a past thread, in the interest of
not repeating, please see the following link, or read the salient part of
that post (relative to this topic), below.
https://lists.ibiblio.org/sympa/arc/cc-education/2003-August/000064.html

here it is, in part...
"From the perspective of most users, this is how we have to think - *what
are the goals of the user*. I see those goals as 1) assuring the user that
his/her content will not be misused; and, 2) that the language enabling
those goals must be clear, precise, and utterly without confusion. I'm not
condescending here, because I know that everyone is working to get something
happening that accomplishes the goals of people who use open or free
licenses, and wants to use them to optimal effect.

Why can't some language be created that simply says something like "This
material is for free educational use. If this material is reproduced in
whole, in part, or as an addendum to other materials for profit, the
producer must pay a fee to the creator of these materials". There could then
be some language that says that the material can be modified (or not), and
that the author wants attribution (or not). End of story.

Why am I suggesting something like this? Because, ultimately, there is no
way to control the creativity of the profit-making world. IN a way, this
reflects back on the statement I made above [i.e. "1) assuring the user that
his/her content will not be misused;"].

Someone, somewhere will always find a way to use free stuff, either by
lifting it wholesale, or addending/modifying it just enough to make a buck.
I get the sense that we're all trying to figure out how to control open and
free content to keep it from misuse, but we won't ever be able to do that.
And, in the process of trying to do that; in the process of trying to be too
pure (in a world that's pervasively grey) we're shooting ourselves in the
foot.

I say "put the stuff out there" and let it fly. If a for-profit company
wants to use my material to addend their materials, and charge a profit for
it, then they're going to have to pay me. If what they produce is better
than what is available (wholly, or in part) from free or open content, so be
it.

Eventually, when profiteers who do this put their stuff out there, other
contributors in the open and free content arena will add new materials to
new efforts that 'compete' with the for-profit group. What this leads to is
open market competition of the best *ideas*, the best combinations and
permutations of content, that spur more creativity and motivation to do
still better content.

Sanford


----- Original Message ----- 
From: <cc-education-request AT lists.ibiblio.org>
To: <cc-education AT lists.ibiblio.org>
Sent: Sunday, April 03, 2005 12:36 AM
Subject: cc-education Digest, Vol 11, Issue 1


> Send cc-education mailing list submissions to
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> than "Re: Contents of cc-education digest..."
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>
> Today's Topics:
>
>    1. A new hope for cc.edu (David Wiley)
>    2. Re: A new hope for cc.edu (Greg London)
>    3. Re: A new hope for cc.edu (David Wiley)
>    4. Re: A new hope for cc.edu (Zachary Chandler)
>    5. Re: A new hope for cc.edu (Greg London)
>    6. Re: A new hope for cc.edu (Matthew Haughey)
>    7. Re: A new hope for cc.edu (David Wiley)
>    8. Re: A new hope for cc.edu (Greg London)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Sat, 2 Apr 2005 11:03:14 -0700
> From: David Wiley <david.wiley AT gmail.com>
> Subject: [cc-education] A new hope for cc.edu
> To: cc-education AT lists.ibiblio.org
> Message-ID: <51a3c3050504021003417e033b AT mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> Back in August of 2003 I proposed that rather than create a new
> education license, <a
>
href="https://lists.ibiblio.org/sympa/arc/cc-education/2003-August/000058.htm
l">we
> rebrand the By-NC-SA license as the cc.edu</a>. The idea had lots of
> traction on the list - <a
>
href="https://lists.ibiblio.org/sympa/arc/cc-education/2003-October/000075.ht
ml">Stephen
> even agreed eventually</a> ;) - as did many others (see <a
> href="https://lists.ibiblio.org/sympa/arc/cc-education/";>August -
> December 2003 posts</a>).  However, because of some push back from CC
> about rebranding as  a strategy, the discussion moved another
> direction and to the frustration of many eventually fizzled out.
>
> 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 <a
> href="http://creativecommons.org/drafts/wiki_0.5";>wiki license
> beta</a> has been handled).
>
> Thoughts?
>
>
> ------------------------------
>
> Message: 2
> Date: Sat, 2 Apr 2005 13:28:16 -0500 (EST)
> From: "Greg London" <email AT greglondon.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: david.wiley AT usu.edu, "development of an education license or
> license option for Creative Commons" <cc-education AT lists.ibiblio.org>
> Message-ID: <47310.206.67.17.2.1112466496.squirrel AT webmail1.pair.com>
> Content-Type: text/plain;charset=iso-8859-1
>
>
> David Wiley said:
> > I therefore propose we rebrand the By-NC-SA as the Creative Commons
> > Education License,
>
> By education, you mean professors sitting around writing papers?
> Or do you mean people who go out and teach for a living?
> The difference is whether or not "NonCommercial" fits
> your definition of "education".
>
> If you license your work CC-EDU, would an instructor be able
> to use that in a class? Students pay tuition to the school,
> the school pays the instructor a salary. That may qualify for
> commercial use. Especially if the "school" is a one person
> corporation with the instructor being the sole shareholder.
>
> If you want instructors to be able to use the material in
> a paid-for class, then NonCommercial won't work, no matter
> what "rebranding" you do. You would need an exception to the
> "NonCommercial" restriction that would all commercial use
> for "educational purposes".
>
> At that point, not only do you have a mound of questions from
> "what is commercial use", you throw in a mountain of questions
> about "what is educational?"
>
> Can someone publish the work? what if the publication charges
> for its subscription? Do you make exceptions for "qualified"
> educational magazines and the like?
>
> The problem is the rebranding of NC-SA doesn't fit the
> natural understanding of "education" and I think it would
> lead to a lot of potential confusion.  If you're adamant
> about NonCommercial being in there, then the human readable
> license needs to be abundantly clear that it means
> NONCOMMERCIAL only and that "education" is limited to that
> definition.
>
> What "Education" means to me would probably better fit
> into BY-SA. Sharing knowledge. Share and ShareAlike.
> I wrote a perl training manual and licensed it under
> the GNU-FDL for its copyleft protection but it allows
> commercial use so that instructors can charge students
> for tuition and books.
>
> If you wanted to rebrand CC-BY-SA as the "Education" license
> then I'm all for it.
>
> But I wouldn't agree with the NonCommercial restriction
> or the confusion it would create.
>
> Greg
>
> I am not a lawyer. This is not legal advice.
> I do not speak for Creative Commons.
>
>
>
>
>
>
>
>
> ------------------------------
>
> Message: 3
> Date: Sat, 2 Apr 2005 17:31:45 -0700
> From: David Wiley <david.wiley AT gmail.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: development of an education license or license option for Creative
> Commons <cc-education AT lists.ibiblio.org>
> Message-ID: <51a3c30505040216316359ea8 AT mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Apr 2, 2005 11:28 AM, Greg London <email AT greglondon.com> wrote:
>
> > By education, you mean professors sitting around writing papers?
> > Or do you mean people who go out and teach for a living?
> > The difference is whether or not "NonCommercial" fits
> > your definition of "education".
>
> The current community of practice around educational uses of the
> BY-NC-SA license (MIT OCW, USU OCW, Johns Hopkins OCW, etc.) strongly
> encourages teachers to reuse the OCW materials in their courses (I can
> say this very confidently, having just sat around a table with them
> for another few days). Noncommercial use means things like selling
> printed copies of the licensed works for profit. Use by teachers in
> classrooms, by students, and by people with no institutional
> affiliation is strongly encouraged. Of course noncommercial doesn't
> only mean teaching and learning; many types of research are covered by
> the definition as well.
>
> In many ways we're better off having waited to engage in this
> conversation again, as there is now a significant amount of
> educational material the BY-NC-SA has been applied to, and some common
> practice has already emerged among the licensors. I think it would be
> a great way to begin marketing the Education License to have these
> very visible programs begin promoting it for us (switch from listing
> BY-NC-SA on their pages to listing the Education License).
>
> D
>
>
> ------------------------------
>
> Message: 4
> Date: Sat, 02 Apr 2005 19:39:14 -0500
> From: Zachary Chandler <zechandl AT colby.edu>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: david.wiley AT usu.edu, development of an education license or
> license option for Creative Commons <cc-education AT lists.ibiblio.org>
> Message-ID: <1112488754.424f3b325fd4a AT webmail.colby.edu>
> Content-Type: text/plain; charset=ISO-8859-1
>
>
> David,
>
> Great news. I had been wondering where cc.edu went since our voting round.
> Thanks for your efforts on this project, and thanks also for making the
process
> as democratic and responsive as you have.
>
> Philospohically I am still with the prevailing group consensus of
by-nc-sa, the
> copyleft and remix ethos that makes CC great. However, I have had another
year
> (or so) of working with faculty on creative projects, on my own small
campaign
> for spreading the word about creative commons. It's my duty to report that
a
> good portion of faculty (at a small liberal arts college) are not ready
for
> Share-Alike, and prefer ND.
>
> I am encouraged that many faculty across the curriculum are well-versed in
> copyright issues, and many have stories of how it has gotten in the way. I
> think that the climate is ripe for CC adoption. Should we keep an ND
opt-out in
> the .edu license? It seems reasonable to me that we can get folks started
with
> ND who might otherwise reject the CC concept.
>
> Sorry if this is an eleventh hour wrench in the werks...
>
> best,
> Zach
>
> ==================================
> Zachary Chandler
> Language Technology Consultant
> Director, Language Resource Center
> Colby College
> Waterville, Maine 04901
> http://www.colby.edu/lrc/
> http://studio.colby.edu/
> zechandl AT colby.edu
> 207.872.3898
>
>
> Quoting David Wiley <david.wiley AT gmail.com>:
>
> > Back in August of 2003 I proposed that rather than create a new
> > education license, <a
> >
>
href="https://lists.ibiblio.org/sympa/arc/cc-education/2003-August/000058.htm
l">we
> > rebrand the By-NC-SA license as the cc.edu</a>. The idea had lots of
> > traction on the list - <a
> >
>
href="https://lists.ibiblio.org/sympa/arc/cc-education/2003-October/000075.ht
ml">Stephen
> > even agreed eventually</a> ;) - as did many others (see <a
> > href="https://lists.ibiblio.org/sympa/arc/cc-education/";>August -
> > December 2003 posts</a>).  However, because of some push back from CC
> > about rebranding as  a strategy, the discussion moved another
> > direction and to the frustration of many eventually fizzled out.
> >
> > 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 <a
> > href="http://creativecommons.org/drafts/wiki_0.5";>wiki license
> > beta</a> has been handled).
> >
> > Thoughts?
> > _______________________________________________
> > cc-education mailing list
> > cc-education AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-education
> >
>
>
> ------------------------------
>
> Message: 5
> Date: Sat, 2 Apr 2005 19:41:35 -0500 (EST)
> From: "Greg London" <email AT greglondon.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: david.wiley AT usu.edu, "development of an education license or
> license option for Creative Commons" <cc-education AT lists.ibiblio.org>
> Message-ID: <9943.206.67.17.2.1112488895.squirrel AT webmail1.pair.com>
> Content-Type: text/plain;charset=iso-8859-1
>
>
> David Wiley said:
> > Noncommercial use means things like selling
> > printed copies of the licensed works for profit.
> > Use by teachers in classrooms, by students,
> > and by people with no institutional affiliation
> > is strongly encouraged.
>
> Commercial use by teachers doesn't fit CC-BY-NC-SA.
> What you propose isn't simply rebranding.
>
> It would require a new license that would allow
> commercial uses for educational purposes
> but prohibit other commercial uses.
>
> If you are willing to allow commercial use
> for educational purposes, why exactly would
> you prohibit other commercial uses?
>
>
>
>
>
>
>
>
>
>
>
> Of course noncommercial doesn't
> > only mean teaching and learning; many types of research are covered by
> > the definition as well.
> >
> > In many ways we're better off having waited to engage in this
> > conversation again, as there is now a significant amount of
> > educational material the BY-NC-SA has been applied to, and some common
> > practice has already emerged among the licensors. I think it would be
> > a great way to begin marketing the Education License to have these
> > very visible programs begin promoting it for us (switch from listing
> > BY-NC-SA on their pages to listing the Education License).
> >
> > D
> > _______________________________________________
> > cc-education mailing list
> > cc-education AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-education
> >
> >
>
>
> -- 
> Hungry for a good read? Crave science fiction?
> Get a taste of "Hunger Pangs" by Greg London.
> http://www.greglondon.com/hunger/
>
>
> ------------------------------
>
> Message: 6
> Date: Sat, 2 Apr 2005 20:44:54 -0800
> From: Matthew Haughey <matt AT haughey.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: development of an education license or license option for Creative
> Commons <cc-education AT lists.ibiblio.org>
> Message-ID: <595b3397f2b7b9d486c4b4d76eac82d5 AT haughey.com>
> Content-Type: text/plain; charset=US-ASCII; format=flowed
>
> On Apr 2, 2005, at 10:28 AM, Greg London wrote:
> > Students pay tuition to the school,
> > the school pays the instructor a salary. That may qualify for
> > commercial use.
>
> That seems like a pretty far stretch of the term "commercial." Almost
> comically so.
>
> > Especially if the "school" is a one person
> > corporation with the instructor being the sole shareholder.
>
> Example? Are you trying to describe something at the edge of commercial
> training/degree services and education, like the University of Phoenix
> or something?
>
> > If you wanted to rebrand CC-BY-SA as the "Education" license
> > then I'm all for it.
> >
> > But I wouldn't agree with the NonCommercial restriction
> > or the confusion it would create.
>
> Let's consider a popular adopter of a hypothetical license as an
> instructor sharing lesson plans in the form of lectures and lecture
> material. Instructors are very sensitive about commercial exploitation
> of their academic work. They don't want commercial services selling
> their notes or packaging 1000 lecture powerpoints onto a CD and
> charging people for it. I know professors that disallow paid note
> takers in their class, since they don't agree with the the practice of
> someone selling notes for their course.
>
>
> You've stretched the idea of commercial so far it barely makes sense,
> then you conclude that everything must allow commercial use to prevent
> future confusion. I don't know of any professors that would want their
> lectures bound by someone else and sold for profit, and so they'd
> definitely want the NC protection.
>
> Matt
>
>
>
>
>
> ------------------------------
>
> Message: 7
> Date: Sat, 2 Apr 2005 21:54:44 -0700
> From: David Wiley <david.wiley AT gmail.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: Greg London <email AT greglondon.com>
> Cc: development of an education license or license option for Creative
> Commons <cc-education AT lists.ibiblio.org>
> Message-ID: <51a3c30505040220543daaf7f5 AT mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On Apr 2, 2005 5:41 PM, Greg London <email AT greglondon.com> wrote:
> >
> > Commercial use by teachers doesn't fit CC-BY-NC-SA.
> > What you propose isn't simply rebranding.
> >
> I am not a lawyer; however, I can assure you that the interpretation
> of commercial use I offered before is the interpretation of MIT's
> General Counsel (in the context of MIT OCW educational materials). The
> entire MIT OCW initiative (1000 courses worth of materials) has been
> operating for years now under that interpretation, and I can't believe
> it's wrong.
>
> D
>
>
> ------------------------------
>
> Message: 8
> Date: Sun, 3 Apr 2005 03:36:08 -0400 (EDT)
> From: "Greg London" <email AT greglondon.com>
> Subject: Re: [cc-education] A new hope for cc.edu
> To: "development of an education license or license option for
> Creative Commons" <cc-education AT lists.ibiblio.org>
> Message-ID: <1341.209.6.166.19.1112513768.squirrel AT webmail4.pair.com>
> Content-Type: text/plain;charset=iso-8859-1
>
>
> Matthew Haughey said:
> > I don't know of any professors that would want their
> > lectures bound by someone else and sold for profit, and so they'd
> > definitely want the NC protection.
>
> You still haven't said why this is so.
> Do they want a cut of the action?
> or do they think money spoils it?
> Or do they want to slow down the
> distribution of their ideas?
>
> A few weeks ago, I proposed the idea of
> CC-BY-NC-SA being "rebranded" as the "Fan Club"
> license. It allows a musician to let their
> fans have a fan club, exchange music noncommercially,
> share music mixes, and do all the things that
> fans generally do. And the musician keeps
> the commercial rights so they can sell the work.
> Oh, and Attribution keeps the musician's name
> associated with all the works, so the fans
> know who it is.
>
> Anyway, that's a perfect fit for what CC-BY-NC-SA does.
> What you're talking about is a "Professor Fan Club",
> not an "Education" license. Because "education" includes
> tutors getting paid to teach students, instructors
> selling course materials, and all sorts of
> other commercial uses.
>
> I don't have a problem with you wanting it to be
> NonCommercial. I have a problem with you using the
> label "Education", when what you're talking about is
> a small subset of what "education" means to people.
>
>
>
>
> ------------------------------
>
> _______________________________________________
> cc-education mailing list
> cc-education AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-education
>
>
> End of cc-education Digest, Vol 11, Issue 1
> *******************************************