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Tuesday, March 09, 2010

Creative Commons Use in For-Profit Company eLearning?

As part of the Big Question this month Open Content in Workplace Learning?, I’m exploring whether Open Content can be used by for-profit companies.  And, since Open Content comes in under the Creative Commons license structure.  Actually, I’m curious if Open Content ever is not Creative Commons?  It’s by definition Open, but theoretically you could choose a different open license. I’ve just never seen it.

In any case, to understand the use of Open Content, it’s important to understand Creative Commons licensing.

Creative Commons Licensing Terms

Creative Commons licensing terms.  All CC licenses start with:

  • Attribution (CC-BY) – Allows others to copy, distribute, display and perform a copyrighted work – and derivative
    works based upon it – but only if they give credit. All CC licenses contain this condition.

Licenses may have one or more of the following permissions or restrictions:

  • Non-Commercial (NC) - Allows copy, distribute, display and perform a work – and derivative works
    based upon it – but for non-commercial purposes only.
  • Share Alike (SA) - Allows others to distribute derivative works but only only under the same conditions as the original license.
  • No Derivative Works (ND) – Allows copy, distribute, display, and perform only verbatim copies of the work, but not make derivative works based on it.

These get combined into one of six licenses:

  • Attribution (CC-BY)
  • Attribution Share Alike (CC-BY-SA)
  • Attribution No Derivatives (CC-BY-ND)
  • Attribution Non-Commercial (CC-BY-NC)
  • Attribution Non-Commercial Share Alike (CC-BY-NC-SA)
  • Attribution Non-Commercial No Derivatives (CC-BY-NC-ND)

Licenses on Open Content

I took a bit of a sampling of various sources of content found via the OER Commons and from the OCW Consortium:

There’s a definite pattern here.  Most of the OCW content appears to come under the Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Licence.  There were a few exceptions such as Stanford Engineering Everywhere with a CC-BY license.

But, I think this really turns into a question of the implications of CC-BY-NC-SA.

Implications of Noncommercial Use

Creative Commons noncommercial licenses disallow “commercial use” – i.e., they preclude the use:

… in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

From what I’ve read, it’s intentionally fuzzy what this exactly means and I am by no means an expert (or a lawyer) around this stuff.

Creative Commons themselves conducted a study to understand commonly held interpretation of this definition – which is itself important from a practical standpoint.

The study itself tells us that people generally consider the following unacceptable:

  • Promotional use (advertising)
  • Use makes money

Perception is that greater scrutiny is required as you move from:

  • Private or individual,
  • Charitable or social good,
  • Non-profit,
  • For-profit

In other words, generally use by an individual (i.e., self-study is considered okay).  If it’s for a charity, social good or non-profit, you are generally safe if you are not making direct revenue / donations from it.

I interpret that putting up links as a means for employees to access the content themselves would generally be considered safe.  I would be curious if anyone disagrees with this.  Of course, you can always find a corporate attorney who doesn’t want to do that even, but you probably can’t access common websites from that company either.

Here’s the tricky questions.  Maybe there are clear cut answers, I just don’t know what they are. 

What if I want to use the course content or part of the course content to teach employees or partners behind the firewall.  Is that commercial use?

A question from the study:

“Work would be used by a for-profit company, but no money would be made”

  • Definitely commercial - ~33%
  • Can’t say - ~40%
  • Definitely noncommercial - ~27%

Shows that people are generally split on the question of whether the scenario I describe is considered commercial or noncommercial.  So it’s a bit of a gray area.  And likely it’s even fuzzier based on whether you are linking, copying, modifying, etc.

Any thoughts on the practical answer here?  If I want to create eLearning for use by my employees, can I use CC-BY-NC content as part of it?  Under what conditions?

Implications of Share Alike

Share Alike has some interesting challenges in interpretation for this situation as well.  From the Creative Commons FAQ:

If you are combining a work licensed under a ShareAlike license condition, you need to make sure that you are happy and able to license the resulting work under the same license conditions as the original work.

This suggests that if you use ShareAlike licensed materials in a course for your employees, then the resulting work must be licensed the same way. 

There’s a lot of gray around this as well.  First, likely the course is being provided only behind your firewall.  There’s nothing specifically that I can see that says you have to distribute the resulting work or make it widely available.  However, there is a clause that causes a bit of concern:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

Of course, the license would allow anyone with access to the work to distribute it themselves.  Thus, an employee could theoretically make a copy and distribute it.  Doubtful that an employee would do this, but since it would be consistent with the license, I’m not sure you could pursue.

In practice, I’m pretty sure you would want to approach the use of this content a bit differently.  If you are taking ShareAlike content and either using a subset or modifying it, you might just want to create a derivative work that is ShareAlike on its own.  It can be fully redistributed, and you wouldn’t care.  Then you can link to that work within your broader course.

It’s somewhat a loose coupling of content, but it is consistent with the spirit of the ShareAlike license.  Create new, public works based on the original work.  Don’t put stuff in that new work that is specific to your organization that you don’t want shared.  That creates a new ShareAlike work.  And you can link to a public instance of that.

If you think about it, having a large collection of these smaller chunks that could be used by employees probably could provide value to others.

Question for Images and Other Content

Of course this same question comes up about a whole lot of other content.  For example, Flickr provides access to images according to Creative Commons license.  See Flickr Creative Commons.  The images under the Attribution license obviously give you a fair bit of freedom to use in your eLearning.  How about those under Noncommercial?  Can you put one of those images inside your internal corporate training as long as you provide attribution?

It’s really the same question as the noncommercial use as described above.

ShareAlike would seem to be a bit problematic for images.  You are very likely using it as a copy inside the course.  Doesn’t that run you into the problem described above?


Again, I’m by no means an expert on this stuff, nor an attorney.  But what would be good is to have some people who know more about this weigh in with help on how to proceed.

I’m also curious to find out what corporate attorneys are deciding around this?


Paul Angileri said...

Thanks for posting this extension of that OC discussion.

I know in my current workplace, such a license would be out of the question, at least on anything technical. This alone would preclude the company from going down the open content road, unless it was for skills development at a general level, or specific to the professional capacity of a particular team from a field-based perspective. So in this particular case they would want to deploy internally only; no ShareAlike.

As far as attribution goes, the company would be willing to enforce that standard I think.

I'm no legal expert either so I can't dig into this language very far at all. Have you turned up any blogs that talk about open source license, copyleft, and so on? I found this one.Hope it is helpful.

Tony Karrer said...

Paul - thanks for weighing in. I'm trying to get more expert help on this one.

That said, I'm wondering if there isn't opportunity to make use of large chunks of SA material where you create a new (derivative work) that you essentially just link to within something that is proprietary to you company?

Faraz Qureshi said...

Here's a recent case study related to this topic. got in trouble for using open courseware on its site in a 'framed' browser. I've not used their service but it sounds like during a paid tutored service, a tutor can point a student to free open courseware resources...which the student browses while in the browser window.

I can see how the argument can be made that was making money off this free resource. Here is the link to this story:

would love to know your thoughts.

To me, the question is is there a way to leverage open courseware resources to create derivative works which are value added enough where its fair to monetize the derivative work...with of course clear attribution to original content owners?

Tony Karrer said...

Faraz - first, it appears that the resources in question are not under a Creative Commons license.

Also, assuming that it was an NC license, then my guess is that is directly making revenue from the use of the material. It would probably not fly around that. Just like SkillSoft likely can't sell a course that directly embeds NC license material.

But this does put a laser like focus on the whole issue of framing vs. linking and that people perceive those quite differently.

To you last point, if you are dealing with an NC license, trying to "monetize" the resulting content is going to be problematic. You are best to be really safe and provide links to the NC materials where students would go back onto a completely separate site that has a similar license. That could be the original or a derivative that you've created. But there would need to be clear separation.

christytucker said...

I had a conversation with an IP attorney a few years ago about some of these issues. IANAL, but here's my understanding based on that conversation and a lot of my own research:

* Linking to other content is OK as long as you don't put it within a frame. Even deep linking is acceptable; the precedent of the Ticketmaster case and others make that fairly clear.
* If you republish content on your own site as a for-profit entity, pretty much the only content you can safely use is CC-By.
* That said, CC doesn't remove fair use rights. Quoting two sentences from a 20-page CC-NC-SA resource is fine. Ethically, you should still attribute it (although copyright law doesn't prevent you from plagiarizing 2 sentences).

Putting CC-By-SA content (such as Wikipedia articles) behind your firewall isn't in the spirit of the license. An attorney is likely to tell you to avoid it so you can avoid being sued. If you're going to publish your own version of the content under a CC-By-SA license and make it publicly available, that's another issue.

I wouldn't use a CC-NC Flickr image for internal training at a for-profit company, personally. Unless you're willing to argue that you're developing training that provides no financial benefit to your company and zero ROI, the training is helping make a profit. That's a commercial use, IMHO.

Ditto for the SA question. If you put an image in a course, I think you're "building upon" it and need to make your course available under a compatible license. Your solution of breaking part of out and sharing just one section would work though.

Of course, you can always ask permission for a particular item if you really want to use it. If you're in the gray area and you ask the owner, you may just get their permission. As you pointed out, the NC clause is especially gray, and individual content creators may have different ideas on what that means. I tend to be pretty conservative in assuming that "for-profit company = no NC content without explicit permission." But individuals may be happy to see their content reused anyway.

Tony Karrer said...

Christy - thanks for your comment. Valuable stuff.

Can you somehow cache CC-SA content for use as linked materials? My claim would be that making a copy of it and making it public is a good way to ensure that it's available to your internal course.

And it's interesting that linking content (maybe even images) is okay, whereas embedding is not.

Makes it pretty fuzzy.

What do you think this means for OER/OCW content?