Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

Hi Heather

A few questions

> There is a trend for the Open Education Community to use CC By for open educational resources. For example Connexions uses CC By. Siyavula, the most successful open school textbook project in the world uses CC By.

A local open educational repository offers only the CC-BY license. The largest community that actively participates in this service gets around this by placing NC licenses on the actual works.

That is very interesting. Please send us some links so we can see how this taking place.

>
> The explicit reference to education in a future non-commercial license would divert some licensors from using CC By resulting in fewer free culture licensed works.

This is speculation.

>

> NC Proposal No. 12 (Heather Morrison): NC Proposal No.12 Define NC to specifically allow educational uses. "(f) NonCommercial means not intended for re-sale or re-use of the Licensed Work for private monetary compensation (for example, as a means to attract advertising revenue). For purposes of this Public License, the exchange of the Licensed Work by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. For the avoidance of doubt, educational use - teaching and learning - is Noncommercial, and permitted by this Public License, while including the content in a package intended for sale to educational institutions for profit is Commercial, and prohibited by this Public License.
>
>
> This would replace the problem of defining non commercial with the problem of defining educational use or 'teaching and learning'.
>
> Is that either teaching or learning, or must both teaching and learning take place?
> Is that intended to be auto-dicactic use?
>
> Is use by British American Tobacco for in house training teaching and learning?
>  Is use by Kaplan.com teaching and learning?
> Is use by  Pearson incorporates the work into a textbook that it sells is that still educational use?

No, according to the language of this proposal:  "provided there is no payment of monetary compensation in connection with the exchange".

I don't follow you here.
The words that you quote is intended to clarify the file sharing exception. In full the sentence reads "For purposes of this Public License, the exchange of the Licensed Work by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange." The exchange referred to is exchange by digital file-sharing or similar means.

Therefore the "no payment of monetary compensation"  caveat is confined to digital file sharing. There is nothing to indicate that it applies to the avoidance of doubt mention of education that follows it. You would have to redraft your definition if you want that caveat to apply more broadly.

> What if Harvard incorporates the work into a cousepack that it sells to its students, is that teaching and learning?

See above.

Since the monetary compensation language is not applied to the education exception in the definition you've proposed this question remains unanswered.

> And if Harvard sells the coursepack to all comers is that taching and learning?

See above.

Since the monetary compensation language is not applied to the education exception in the definition you've proposed this question remains unanswered.

> If I use the work on my blog that also earns ad revenue and I deem my blog to a teaching blog then is that permitted?

Something that is "deemed to be a teaching blog" suggests that it is not in fact a teaching blog. If the primary purpose is ad revenue, than no, this would not be permitted.

The problem that I am pointing out is that I might say and indeed believe that a hypothetical blog is a teaching blog but you as licensor might believe that it is not. Even if the characterisation of a blog as educational or not is something that could be meaningfully described as a "matter of fact" it is the kind of issue that on a pragmatic level is exceptionally difficult to determine, the result is legal uncertainty.

You might believe that as a matter of fact that the blog is not educational but as licensor you won't be able to know what revenue is generated, nor what is done with that revenue whether it is spent on champagne or creating more educational resources. In other words your belief would be speculative. It is not a good idea to draft licenses that rely for their definitions on knowledge that is solely held by the licensee.

Would the same purposes be achieved by defining commercial as sale, barter, letting and use in a paid for advertisement? Would any of the educational uses that you want to permit be prevented by defining non commercial in this legally certain way?

cheers

Andrew