[Oer-community] On-line education is using a flawed Creative Commons license

Wed Nov 28 23:10:19 MST 2012

Hi David (& Brian)

I agree that pointing a student to an NC licensed textbook in a course
which charges tuition would not violate the NC restriction because the
contractual relationship is between the student and the copyright holder of
the NC work.

However, in the OERu context when we remix a variety of open content
resources to develop independent study materials which become the core
learning materials, this defence would not hold for OERu courseware because
the resultant work would constitute an
adaptation<http://wiki.creativecommons.org/Frequently_Asked_Questions#Does_my_use_constitute_an_adaptation.3F>.
 OERu partners are free to adopt OERu courses in parallel mode where the
course is used for full-tuition students (as well as the tuition-free OERu
learners.)  In this scenario, there will be a contractual relationship
between the full-fee paying students and the university based on NC
materials which have been remixed and re-licensed. The payment of fees may
not align with the intent of the copyright holders of the original NC works.

This is not a theoretical supposition. This week, I have been working with
colleagues at the University of the South Pacific, an OERu anchor partner
and regional university "owned" by 12 Pacific Island states.

The first OERu prototype course is a first-year level course in Regional
Relations for Asia and the
Pacific<http://wikieducator.org/Australia%27s_University_of_Southern_Queensland_launches_the_first_OERu_prototype>,
which was developed by the University of Southern Queensland. As you will
appreciate, a course like this is of prime interest to the University of
the South Pacific.  I ran a practical demonstration and installed the
AST1000 <http://wikieducator.org/AST1000> course on the local USP LMS in 3
minutes. This illustrates the power of the open model -- a full course,
installed in 3 minutes which can be offered to full-tuition students at USP
without spending a cent on course development costs! The pedagogy of the
course has been designed in a way which would not require
re-contextualisation.  This is an attractive proposition to universities
who would like to diversify curriculum without incurring capital
development cost.

The OERu university network has adopted a principle of engagement to only
use free cultural works approved licenses for the core materials hosted by
the OER Foundation to minimise the litigation risks associated with using
NC licensed materials where service fees may apply. Stephen Downes (btw
Stephen -- my name is not "*McIntosh" *let's get the attributions correct.
Getting you back for a Freudian slip calling you Steven in an email a few
years ago when you politely corrected me * ;-) *)* *highlights the risks of
enclosure. This is a material and costly risk for open education. * *However,
the NC restriction is not sufficient to protect against the risk of
enclosure in my view.

By way of example, one of the nominated courses for OERu prototype
development was an Introduction to Management course. The best source of
materials we could find for remix, was a Flat World Knowledge publication
with an NC restriction. We took a decision to stall the development of this
nomination because we could not find a free cultural works approved
alternative. In hindsight this was a smart decision, because the text will
now be enclosed not too mention the grey areas associated with the
definition of non-commercial.  Sure, a CC license is irrevocable, but the
intent of FWK is becoming clearer -- and I doubt whether they would approve
of OERu's intended use of these materials.

As the "disruptive innovation" (don't like the term that much) index
increases in higher education, we need to be more alert to the potential
risks associated with innovations which may change the landscape. Take
Stephens objections to the OERu model charging cost-recovery fees as an
example, and he is the friendly guy who works in the non-commercial arena
promoting free learning. Consider the future challenges and litigation
risks when open education starts challenging the "business" models of
conventional universities and the commercial education sector. We need to
be squeaky clean.

On Thu, Nov 29, 2012 at 11:04 AM, David Wiley <david.wiley at gmail.com> wrote:

> Brian,
>
> The answer to your question is no, charging tuition for a class that
> uses an NC licensed textbook does not violate NC. I'm trying to keep
> my contributions on this open, so I've posted the actual response on
> my blog - Tuition is a Movie Ticket, OER are Popcorn
> (http://opencontent.org/blog/archives/2618).
>
> This is nothing but publisher FUD and we simply need some case law to
> put this argument to bed. But you will never see a publisher litigate
> on this issue because they know they will lose, and for their trouble
> will have paid the legal fees necessary to establish the case law that
> undercuts their FUD.
>
> David
>
> On Wed, Nov 28, 2012 at 1:00 PM, Brian Lamb <brlamb at mail.ubc.ca> wrote:
> > I am finding this discussion on the NC clause to be provocative and fun
> to
> > read.  I find points made on both sides worthy of consideration. I am
> > confused by this point of comparison by Rory:
> >
> >
> > RORY>>> Not true. NC does NOT prevent commercialization. It encourages
> it.
> > Private companies want the exclusive right to distribute so they license
> it
> > directly from the author a la Flatworld.  NC promotes and supports
> > commercialization. People in Canada have free access to water. Others
> bottle
> > it and people pay for it. The fact that some companies choose to sell it
> > does not make water unfree. Granny can bottle her free water and sell it.
> > Others can take the free water and use it gratis.
> >
> >
> > ...Water is free you can use if as you like or you can sell it. NC
> > restricted content limits the selling option to one person.
> >
> >
> >
> > In most places I've been, water is a publicly regulated commodity.
> "Granny"
> > either pays a water bill, or helps support a public utility through her
> > taxes. She can bottle her free water and sell it, but if she were doing
> it
> > on such a scale that it exceeded a reasonable personal usage, she would
> > likely face legal sanction. In places where water is scarce, water
> rationing
> > is common.  And I would hope corporations or individuals would not be
> > permitted to engage in commercial activities that endanger the careful
> > management of a limited and valuable resource - whether by polluting it,
> or
> > by excessive use (or control) of it.
> >
> > On another note, have y'all read this post by Mike Caulfield?
> >
> > http://hapgood.us/2012/10/31/coursera-cc-nc-and-ocw/
> >
> > Turns out the application of an NC license does not absolutely forbid all
> > commercial use for all time. "A CC-NC license is not a blood oath; the
> > license holder can negotiate exceptions."  Wow, who knew? But we would
> have
> > to talk to each other. And this mailing list just demonstrates how much
> > educators hate to talk to one another.
> >
> > Finally, can somebody tell me if an NC license forbids reuse by
> non-profit
> > public education institutions that charge tuition? Seems like a fairly
> > simple question, but I've heard authoritative responses that wholly
> > contradict each other on that point. If such basic definitions of use are
> > this unclear, I suspect we will not find consensus on this discussion.
> >
> > Though again, I am enjoying following the debate. Thanks to all the
> > participants.
> >
> > Brian
> >
> > Brian Lamb
> > Director, Innovation
> > Thompson Rivers University
> > Kamloops, BC, Canada
> > (On leave from UBC)
> >
> >
> >
> >
> >
> >
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> >
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-- 
Wayne Mackintosh <http://wikieducator.org/User:Mackiwg>, Ph.D.
Director OER Foundation <http://www.oerfoundation.org>
Director, International Centre for Open Education, Otago Polytechnic
Commonwealth of Learning Chair in OER, Otago Polytechnic
Founder and elected Community Council Member,
WikiEducator<http://www.wikieducator.org>
Mobile +64 21 2436 380
Skype: WGMNZ1
Twitter <http://twitter.com/#%21/Mackiwg> |
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