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Monday, April 05, 2010

Failure of Creative Commons Licenses

As part of last month’s big question Open Content in Workplace Learning?, I’ve been trying to find out more about specific answers to Creative Commons Use in For-Profit Company eLearning.  I was contacted by someone out of the Creative Commons organization, but in going back and forth with them, we realized that I was looking for legal interpretations which they clearly can’t do.  They are there to help set up the licenses.  But that said, it also shows a failure of the current licenses.

What do I mean by a failure?

As I pointed out in my previous post, Creative Commons themselves conducted a study to understand commonly held interpretation of the understanding of the meaning of these licenses.  This common interpretation is important if you are going to defend your use of licensed materials.  But it also shows that lots of interpretation is required.

The person from Creative Commons suggested I post to the cc-community mailing list my questions.  I only received one response with the following suggestion:

Contact the copyright holder to verify that:

a) The work was distributed under the license you received it under;

b) Their understanding of what the license permits and your understanding of what the license permits are congruent;

MIT,for one, has a couple of pages that outlines their interpretation of the CC-BY-SA-NC license. Most other educational institutions have similar pages, albeit not always with the same degree of examples as MIT.

But that leaves us with having to go and contact the license holder of each work which somewhat defeats the purpose right?

That’s what I mean by failure.

We don’t have an answer to some pretty basic questions!

The one good thing that came out of it was that at least MIT recognized this failure and has additional information: MIT Interpretation of "Non-commercial"":

Non-commercial use means that users may not sell, profit from, or commercialize OCW materials or works derived from them. The guidelines below are intended to help users determine whether or not their use of OCW materials would be permitted by MIT under the "non-commercial" restriction. Note that there are additional requirements (attribution and share alike) spelled out in our license.

  1. Commercialization is prohibited. Users may not directly sell or profit from OCW materials or from works derived from OCW materials.
    Example: A commercial education or training business may not offer courses based on OCW materials if students pay a fee for those courses and the business intends to profit as a result.
  2. Determination of commercial vs. non-commercial purpose is based on the use, not the user. Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.
    Example: A corporation may use OCW materials for internal professional development and training purposes.
  3. Incidental charges to recover reasonable reproduction costs may be permitted. Recovery of nominal actual costs for copying small amounts (under 1000 copies) of OCW content on paper or CDs is allowed for educational purposes so long as there is no profit motive and so long as the intended use of the copies is in compliance with all license terms. Students must be informed that the materials are freely available on the OCW Web site and that their purchase of copied materials is optional.
    Example: An institution in a remote area has limited Internet access and limited network infrastructure on campus, and a professor offers to create CDs of OCW materials relevant to her course. The professor may recover the costs of creating the CDs.

If you have questions about acceptable use of OCW materials, please contact us.

For those of us in eLearning, the key line is “A corporation may use OCW materials for internal professional development and training purposes.”

That’s great news.  But it doesn’t necessarily hold for other Open Content, just MIT.

Bottom line is that Creative Commons is failing to really help us.  If you have to go and contact each license holder to find out, you are basically in the same boat as with copyright.


Dianne said...

Re: "For those of us in eLearning, the key line is “A corporation may use OCW materials for internal professional development and training purposes.”

Just a further note...that doesn't mean an agency, eLearning vendor can sell OCW materials to a corporation that will be using it internal professional development and training purposes ...The corporation might not be violating the license but the agency/vendor would be.

Peter Rawsthorne said...

You are asking a very good question, though I don't believe it goes far enough. Should we be asking the question if copyright in general has become a failure. And who really does copyright serve?
I believe this is particularly true for educational resources. I have never seen education as a for profit activity. Education is about building stronger communities, businesses and people. Profiting from that is shallow... There is a growing movement of people who would like to resist copyright. maybe this is a better answer to the copyright question...

Lisa R. said...

We've been debating this at ATS as well, as far as using materials in our paid workshops. We intend to make the materials freely downloadable from our website, but are we in violation if the CC content is distributed to paid attendees? We think not, since you do not have to pay for the workshops to access the material, but we're still worried.

Tony Karrer said...

@Dianne - Wow, that's a great point. There's a pretty fine line there. As an agency are you getting direct payment for including the OCW content? Yikes.

@Peter - Wow, that's quite a step. This seems like a rather edge case - not very mainstream. Is there much support for going to that extreme? And I don't see that happening anytime soon. I'm more interested in getting help today.

@Lisa - and that's the whole point. You then are almost back in the same boat. You have to contact the copyright holder. That may or may not even be sufficient depending on how they answer and the amount of hoops you jump through. Basically, CC has not helped you. Fail!

Tahiya Marome said...

So really the only failure is that of people who wish to make money from someone else's expression without sharing that money with the originator. These people are the reason copyright law has become such a barrier to non-commercial entities like schools, libraries and museums. Frankly I'm pleased as punch that anyone who believes artists and creatives should just render up their talents for the money grubbers without getting anything in return are having a hard time perverting the intention of open source and creative commons. Good! That means it IS working.

Bill Ferriter said...

Another challenge that I've had with the Creative Commons is that artists themselves rarely understand the licenses that they are placing on their work---and they often change their licenses without warning!

That leaves me as a content producer in a legal lurch. What happens if I find a piece that is licensed CC-A, use it in a product that will generate revenue, and then the artist changes the terms of their license after my product is published?

Don't get me wrong: I LOVE the Creative Commons AND the artists who freely license their work.

I'm just not sure that we've gotten to the point where CC licensing is on completely solid ground. There's messy kinks to be worked through.


Gary H said...

Licensing and copyright are two different things. If I take a photo, register it with the copyright office, then license it as CC I still retain the copyright. I've just decided to license it using CC. The burden is on me to be explicit in what is allowed use. The creative commons group should have clear examples, but they can't cover every use. As a copyright holder I am making a legal choice to use CC license, so the burden is on me to understand it. If I fail to properly explain what is acceptable use, that's my fault. I can't expect people to know how to use my materials unless I tell them. People who want to use CC material should contact the copyright holder to get specifics. But, examples would help a lot.

I recently had a case in which a person wanted to use one of my photos and wasn't sure if it was commercial use or not. He contacted me and I gave him permission to use the image. His use was commercial, but I still allowed him to use it. I think CC worked for me in that case because he got to use the image and I controlled the use.

Stephen White said...

From my POV, creating new art and ideas from existing CC licensed work and allowing for free distribution is where CC plays an important role. As such, there is value to corporate elearning in that CC licensed material can (I believe) be included in corporate blogs, wikis etc and/or made freely available to employees (in the case of whole courses) as long as it is attributed (whether part of the license or not)

The issue is when money changes hands. As soon as that is in the mix, no matter the type of copyright, the license holder will need to be contacted. As a content provider, I will not include CC material in a solution we are developing for sale to a client without contacting the license holder. If that is too much of a hassle, we find alternate material.

Does that constitute a Fail? Well no, not in my opinion. But I never viewed CC material as free to resell. Just free to use and distribute - for free.

Phil said...

If you need to ask whether your use is commercial - it is.

Tony Karrer said...

The reason I see it as a failure is that having to contact the copyright holder is the same thing you have to do without a CC license. All you can say is that by seeing that something is CC, it's given you an indication that this person might be okay with use, but you still need to make contact to determine whether your use is considered permissable. And, of course, you could look from the other side, that since it's fuzzy, people may choose to use it in ways that you don't like and you would have to pursue them in a fuzzy situation. You need to come up with more definition than is in the CC license to allow people to understand what's allowed. That's the failure.

Tony Karrer said...

I just saw that Stephen Downes pointed to this post and commented - "The precise meaning of the 'Non-Commercial' clause matters only to those who want to violate it. This is my view, at least, and I would add that people looking for precise definitions are looking for loopholes. It's like the definition of 'expensive'. If you have to ask, you probably won't like the answer. Tony Karrer, though, argues for precise definitions. "Bottom line is that Creative Commons is failing to really help us. If you have to go and contact each license holder to find out, you are basically in the same boat as with copyright" (Karrer also doesn't need definite articles). But you don't need to go asking to find out. Because, if you're asking about this, you already know the answer. Right?"

Stephen - is it okay for an educator to use NC material in a course? What about if it's being delivered at a for-profit education institution?

My belief is that it's gray in a lot of cases - and the point is to try to make it a lot less gray. Give us some examples of what's clearly in or out so that if we match with those examples, we are okay. MIT at least starts us down that path. But we need a lot more.

Phil said...

To be honest I can't see much that is gray in: "You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation."

The license is doing exactly what's intended. It makes it plain to those who have absolutely no commercial interests that they can go ahead and use the materials without bothering the copyright holder.

It's also plain that those who are working wholly for profit that they need to purchase (or negotiate) a license.

Any ambiguity is coming from the licensee's lack of clarity.

I'm reminded of a recent post on Clients From Hell.

Tony Karrer said...

"primarily intended for or directed toward commercial advantage or private monetary compensation" - that's the issue ... who's to define that. And when you say - "absolutely no commercial interests" well that's even hard to say. You could argue that as a professor both I and my university receive commercial benefit from using the content.

You can tell that there's quite a bit of interpretation required and that different people will have quite different answers. Yes, there are some clear violations, but otherwise you are back in copyright land asking for permission.

Isn't the point to have more clear understanding of what's in or out?

Phil said...

Re: "You could argue that as a professor both I and my university receive commercial benefit from using the content."

Yes. If you're incorporating the creative commons content into your own branded course materials that you're selling to others, either directly or as part of a service delivery, you're acting commercially and you should budget for the cost of copyright clearance.

I'd hope that your institution already has an efficient copyright clearance process in place to handle this in just the same way that you'd handle clearance of more traditionally licensed content.

You always have the option of linking to the resources or limiting your incorporation of the materials to a "fair use" application.

When in doubt, ask.

If you can't be bothered to ask you're probably not acting in the spirit of the license.

Tony Karrer said...

Phil - I don't believe that use by a corporate university and use by an education institution is that different in most cases. That aside - when you come back to:

"If you can't be bothered to ask you're probably not acting in the spirit of the license."

Takes us straight back to the issue - isn't the purpose of Creative Commons to help us avoid having to ask?

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Phil said...

Re: "Takes us straight back to the issue - isn't the purpose of Creative Commons to help us avoid having to ask?"

No. The purpose is to let authors choose the circumstances in which you need to ask.

"Our licenses help authors keep and manage their copyright on terms they choose. Our public domain tools, on the other hand, facilitate the discovery of works already in the public domain and enable authors and copyright owners who want to dedicate their works to the public domain to do so."


Tony Karrer said...

Phil - fair enough - but I would think as a copyright holder / license holder you would want to let people know what you consider to be appropriate use and not appropriate use. The less clear it is the more issues you likely will face, i.e., you may have to pursue people who think the license means one thing while you believe it means something else.

christytucker said...

Creative Commons does a great job--if you assume that the purpose is to keep all content open. The NC clause is one way to keep content that was created freely from being put behind a paywall. That's part of the goal, and it does that pretty well.

Creative Commons is quite useful in the education world, but I agree that it isn't generally much use for businesses.

As a side note--part of why my blog is CC-By is because I don't want to deal with these murky questions. CC-By is pretty clear and doesn't require a request. The process is pretty frictionless. But I've made that choice for my own content; that isn't the right choice for everyone else out there blogging.

christytucker said...

One more thing--it would be nice if everyone who uses an NC license would define clearly how they interpret "commercial," like MIT did. Stephen Downes has been pretty clear in his own writing, although I don't know if it's spelled out in site terms.

Tony, to answer your question about for-profit education: I never used NC-licensed content when I was developing content for a for-profit education company. It's still a business (sometimes a publicly traded one). Tuition is profit generation in the for-profit education world. I used some CC-By materials, but nothing with a stricter license than that.

Tony Karrer said...

Christy - good point that it's the SA and NC that are the problem. CC-BY is pretty clear. However, a lot of material, especially OCW/OER is SA-NC.

It's interesting that MIT's SA license explicitly allows workplace learning use. To me, that makes a lot of sense. But obviously other people will make different distinctions. I believe Stephen Downes sees most for-profit entities, even educational institutions, as not being allowed to use NC material in any way - although if you just put a link and let employees find the resource for personal learning it's probably okay. What a rat's nest!

gih said...

Copyright remains copyright as long as the holder releases it as public. People/holders try to go with this for their product security.