Development of Creative Commons licenses

[Mike Linksvayer <ml AT creativecommons.org>]

On Mon, Dec 12, 2011 at 11:01 AM, Brian W. Carver
<bcarver AT ischool.berkeley.edu> wrote:
> 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.)

I'm not 100% certain negotiating with CC would help -- "Get Creative"
was produced a long time ago (2002; before my time with CC), lots of
people contributed ... we'd have to investigate whether we obtained
all the rights necessary to grant them to you. I've had in the back of
my mind for a long time to do that so it could be released under a
non-NC license and/or to produce an updated version of that classic
and still most useful video. Someone at CC should probably do that.
:-)

> 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.

It would be very, very hard to get permission. The video incorporates
a track from NIN which is released under BY-NC-SA. Lots of photos
under BY-NC[-SA] are included from various photographers. Permission
would have to be obtained from each of them.

I hope that any future assets CC creates are released under non-NC
licenses. I believe we generally try for CC BY these days, but better
to start from CC0 in my opinion. No reason for any copyright friction
in the spread of this information. But that's somewhat off topic of
4.0. Irony points granted.

> 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

This was just raised as part of a broader proposal, see
http://blog.tommorris.org/post/14114334627/creative-commons-4-0-proposal-fair-use-baseline

My initial reaction to the educational use part, copied from
https://plus.google.com/110114902730268262477/posts/PTnqvZHKEBT

"Of the items that you list, I suspect the last (educational use) is
least feasible. People who want to allow that unambiguously should
just use a fully open license that permits commercial use. Entities
that sell copyright licenses for educational uses aren't going to find
much (any?) "protection" from an NC that effectively permits lots of
uses they'd consider commercial within their primary market. But there
are many other things to consider, longer discussion if people want to
have it. :-)"

Mike