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:

• SERC – CC-BY-NC-SA
• Learn NC – CC-BY-NC-SA
• MIT OpenCourseWare – CC-BY-NC-SA
• Utah State OpenCourseWare – CC-BY-NC-SA, but some specific courses such as Intro to Instructional Design has a CC-BY-SA
• Johns Hopkins OCW - CC-BY-NC-SA
• Notre Dame - CC-BY-NC-SA
• The Open University – CC-BY-NC-SA

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?

Help

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?