development of an education license or license option for Creative Commons

[David Wiley <david.wiley AT gmail.com>]

On Apr 3, 2005 4:49 PM, Sanford Forte <siforte AT ix.netcom.com> wrote:
> 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.

I hope I understand your point, because there's a very straightforward
solution to your concern. The reason faculty at MIT, USU, and other
universities have been interested in using By-NC-SA is that they want
to reserve rights to commercial uses to themselves. The By-NC-SA
license is the default set of rights that individuals get to content.
If they would like a different set of rights, they can get them - all
they have to do is negotiate with the rights holder. So, in the case
of USU, the faculty are happy to By-NC-SA license OpenCourseWare
materials. This allows them to still take advantage of
commercialization opportunities, since they have *not* given those
rights away as part of the OCW project.

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

Very simple. They arrange another license agreement with the rights holder.
 
> 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?

No. Not at all. We just allow the original rights holder to stay
involved in any for profit undertakings that involve their content.
 
> 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?

They would be free to sell copies of the content, as would the
for-profit publisher, as long as they sold at cost and not for a
profit (no matter how small). If they *did* want to sell at a profit,
all they would need to do is contact the rights holder and negotiate a
new agreement.
 
> 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.

Understood. That's why CC has tried very hard to limit the number of
types of rights under consideration to three (attribution, commercial
use, derivative works).
 
> Who is going to want to take the time to understand all this? (open source
> 'copyright' attorneys?).  :)

Someone who has the time to read licenses but not the money to afford
commercial content?

> 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.

The idea isn't to boundary the content of from the rest of open
content. The idea is to make it easier for people who create these
kinds of materials to understand the movement and begin participating.
There's nothing that prevents people from releasing materials under a
more liberal license if they wish (like Connexions, where you have
some content published, that uses the By license).

> 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.

My personal goal has much less to do with licensors than with the
individuals who stand to benefit the most from access to a larger
quantity of higher quality free and open educational content. I work
with Creative Commons because I know the mean to that ends is making
it easier for people to understand / relate to the licenses. So cc.edu
is simply a means to an end for me.
 
> 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.

This clarifying language is what we're going to do in the commons deed.
 
> 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;"].

I have no interest in controlling the commercial publishers. I'm
interested in catalyzing the development of a giant ecosystem of high
quality educational content, some of which is free and open access.
The commercial publishers are never going to go away. And they're
never going to provide the content and services needed by a vastly
underserved and frequently ignored portion of the population. There's
no profit motive for them to do so, and they work for profit. I want
to see the ecosystem of content expand to serve the needs of
*everyone*.
 
> 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.

No, in instances where the By-NC-SA is used, we're just trying to keep
the rights holders involved in any conversations that involve
profit-making.
 
> 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.

That is 100% the situation we are proposing with By-NC-SA.

> 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.

Exactly. This is the ecosystem I described above.

David