Development of Creative Commons licenses

["Brian W. Carver" <bcarver AT ischool.berkeley.edu>]

Hello,

I teach Copyright law. I am developing an online course for
undergraduates to be offered by a university (that charges money for its
courses). I thought I could explain some concepts of copyright law by
using some Creative Commons videos. I would need to host and distribute
the videos in the online course platform. In particular, I thought I
might edit down and use part of:

http://creativecommons.org/videos/get-creative

However, it is licensed under the Attribution-NonCommercial-ShareAlike
license, and I assume my use would be a commercial use.

So, my options are: negotiate with Creative Commons directly or rely on
fair use. (For those not familiar with that video, the irony of not
being able to "skip the intermediary" may not be as apparent as I
intend. Go watch it.)

So then I thought maybe a different video could serve my purposes, so I
looked into using:

http://creativecommons.org/videos/a-shared-culture

But it is also licensed Attribution-Noncommercial-Share Alike and I
still assume my use would be a commercial use.

So I figured out that the author, Jesse Dylan, maintains a website at
http://wondros.com/contact but after reviewing all those job titles I'm
still not sure who I should contact to get permission to use that video.

If Creative Commons videos themselves cannot (easily) be used to educate
students about copyright, then something has gone terribly awry. I
believe that many authors, not just Creative Commons, would not object
to educational uses of their content and select the NonCommercial option
only to prevent someone from directly selling the content for profit.

Given that, and given Creative Commons' support for Open Educational
Resources (OER), I think it is time to mitigate the harm the
"NonCommercial" license option does to OER by providing authors with an
option to signal that "Educational" uses are excluded from the
NonCommercial prohibition.

"Educational" would have to be defined carefully so as not to create
another term that confuses authors and re-users, but I think it could be
done. Probably along the lines of an exception for "...performance or
display of a work by instructors or pupils in the course of teaching
activities of an educational institution, in a classroom or similar
place devoted to instruction or as part of instructional activities
transmitted via digital networks..."

Faculty developing online courses should not have to try to figure out
Section 110 of the Copyright Act (the TEACH Act), which I read to
require me to use some sort of DRM that I don't have access to or
inclination to use anyway. See the Berkman report that states,
"...restrictions so limit the reach of the TEACH Act, and make it so
difficult for educators to comply with its requirements, that most
observers believe the exception from liability it offers has little or
no value." [1]

Implementation of an educational uses exception could be handled however
CC likes, but I would initially suggest that "permit educational uses?"
be a follow-on option to those that select "NonCommercial" leaving us
with a plain NC license option and an NC-EDU option. I know that creates
some undesirable license proliferation, but I think the educational
market is so large and so important so as to justify it. I offer this as
a less radical suggestion to eliminating the NC license, something I
would also likely support.

[1] http://cyber.law.harvard.edu/media/files/copyrightandeducation.html

--
Brian W. Carver
Assistant Professor
University of California, Berkeley
School of Information