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

Cable Green cable at creativecommons.org
Thu Nov 29 10:48:29 MST 2012 

Hi Randy:

I have inserted few comments below re: how CC licenses work.

Cable


On Thu, Nov 29, 2012 at 2:20 AM, Randy Fisher <wikirandy at gmail.com> wrote:

> Hi All,
>
>
>
> In my experience, contacting the original copyright holder is
> time-consuming and a pain – if you can get in touch with him / her at all.
> If that person works at an education institution or similarly large
> organization, and the legal department gets involved – one might as well
> forget about using the content – and seek it elsewhere or start from
> scratch.
>
>
>
> Is there a possibility that materials could have dual licenses from the
> get-go – like people who hold dual citizenship. They understand there are
> bound by different rules for different countries – even though they are the
> same person.
>
>
>
> For example, for my resource, I originally assign or tag it as both: CC-BY
> & CC-BY-NC.
>

   - This is fine - the copyright holder is allowed to dual-license. From
   http://wiki.creativecommons.org/Frequently_Asked_Questions

   - *All CC licenses are non-exclusive -- creators and owners can enter
      into additional, different licensing arrangements for the same
work at any
      time, a practice known as dual-licensing. Note, however, that once
      granted, CC licenses are not revocable in the absence of a
breach, and even
      then the license is terminated only as to the particular licensee.*



> This could send a signal to the person and/or institution who wants to use
> my resources (original or remixed) that I am open to having the
> conversation about a possible “commercial” use of these resources.
>


   - Important note: if you dual-licensed your work CC-BY and CC-BY-NC (as
   noted above), the licensee / user may choose to use the work under *
   either* license. That is, a person or institution who wishes to use your
   CC BY licensed work for commercial purposes may do so without additional
   permissions from you.



>
> In a way, this comes down to a “what’s in it for me” argument. When I
> share / publish resources under CC-BY, I know that I am contributing to the
> larger community AND that derivative works are similarly licensed.
>

   - If you want "derivative works [to be] similarly licensed" you'll need
   to use one of the Share-Alike (SA) licenses, e.g. CC BY
SA<http://creativecommons.org/licenses/by-sa/3.0/>.
   CC BY does not derivative works be licensed under the same or similar terms.



> If I share/publish materials with an NC-restriction, it doesn’t mean that
> I an not open to a ‘commercial use’ of my works, it just means that if
> these works are to be used in a commercial way, I would want some form of
> compensation – whether individually, or my organization or governing body
> benefits in some way.
>

   - Creative Commons has a CC+ protocol that may be useful for this
   scenario: http://wiki.creativecommons.org/CCPlus
      -

      *CC+ is a protocol providing a simple way for users to get rights
      beyond the rights granted by a CC license. For example, a work's Creative
      Commons license might offer noncommercial rights. With CC+, the
license can
      also provide a link by which a user might secure rights beyond
      noncommercial rights -- most obviously commercial rights, but also
      additional permissions or services such as warranty, permission to use
      without attribution, or even access to performance or physical media.
      *

      *The CC+ architecture gives businesses a simple way to move between
      the sharing and commercial economies. CC+ provides a lightweight standard
      around these best practices and is available for implementation
      immediately. *


>
>
>
> BTW: I’m with Mark – it’s a fascinating discussion – and both (and all)
> perspectives are of value – this healthy tension keeps the OER movement
> moving forward, and includes many voices than would otherwise be the case.
>
>
>
> - Randy
>
>
>
>
>
>
>
>
>
>
> On Thu, Nov 29, 2012 at 1:10 AM, Wayne Mackintosh <
> mackintosh.wayne at gmail.com> wrote:
>
>> 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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>>> > Oer-community at athabascau.ca
>>> > https://deimos.cs.athabascau.ca/mailman/listinfo/oer-community
>>> >
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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> | identi.ca<http://identi.ca/waynemackintosh>
>> Wikiblog <http://wikieducator.org/User:Mackiwg/Blog>
>>
>>
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>>
>
>
> --
> ________________
> *Randy Fisher, MA *(Fielding)
> *Organizational Performance, Learning & Evaluation*
>
> 1. Education Specialist, Information and Communications Technology
> Council (ICTC) <http://www.ictc-ctic.ca>
> 2. Co-Founder, Ottawa Learnery <http://Learnery.org>
>
> **Open to consulting, mentoring and coaching opportunities.
>
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-- 


Cable Green, PhD
Director of Global Learning
Creative Commons
http://creativecommons.org/education
http://twitter.com/cgreen
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