Guest Post: Openly Commercial

Creative Commons has an important role to play in providing a legal framework which permits reuse of resources. But as Joscelyn Upendran describes in this guest blog post, how the Creative Commons NC (non-commercial) licence are interpretted can cause confusion. Will CC+ provide an answer?

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Openly Commercial

The Non-commercial component of the Creative Commons (CC) licences has occasionally given rise to some uncertainty and debate amongst those interested in copyright licensing. (See About the Licences for a reminder of the different CC licences.)

The CC licences which contain the NC component refers to commercial use, as used:

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

So what does that cover exactly?

CC guidance below and from @mollyali is very useful, but as with many things of a legal nature, they do not provide absolute certainty, as there are usually a number of factors at play. As described in the FAQ which asks ‘Does my use violate the NonCommercial clause of the licenses?‘ on the Creative Commons wiki:

In CC’s experience, whether a use is permitted is usually pretty clear, and known conflicts are relatively few considering the popularity of the NC licenses. However, there will always be uses that are challenging to categorize as commercial or noncommercial. CC cannot advise you on what is and is not commercial use. If you are unsure, you should either contact the creator or rightsholder for clarification, or search for works that permit commercial uses. Please note that CC’s definition does not turn on the type of user: if you are a non profit or charitable organization, your use of an NC-licensed work could run afoul of the NC restriction; and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term.

A CC commissioned study on “how people understand ‘noncommercial use’” was published in 2009. @plagiarismtoday provides a good potted summary of the report. Notwithstanding the 2009 report and “known conflicts” relating to the NC licensed being “relatively few” the NC component of the CC licence still generates much deliberation and debate.

Some objections to the NC licences relate to a viewpoint that they are not truly ‘open’ as they block licence interoperability and frictionless remix and reuse of content. The NC licence remains popular, however, and some CC adopters may well experiment initially by using a NC licence before choosing more permissive licences in due course.

The CC BY NC SA licence is a popular choice of licence amongst Higher Educational Institutions (HEIs). The Open University’s OpenLearn, MIT Open Courseware (MITOCW) and Open Yale Courses (OYC) all use a Creative Commons (CC) BY NC SA licence for their open educational resources (OER).

The JORUM Final Report published in 2011, indicates that the majority of the resources deposited within the JORUM repository are from the Academy/JISC OER Programme and a high percentage is from HEIs and licensed with a CC BY NC SA licence.

Although OpenLearn, MITOCW & OYC, all use a CC BY NC SA licence, all three institutions provide additional ‘”guidelines intended to help users determine whether or not their use of OCW materials would be permitted”

There are differences between the guidelines provided by the three institutions in the degree of permissiveness. For example OpenLearn permits “educational institutions, commercial companies or individuals to use the CC licensed content” and permits use of the “content as part of a course for which you charge an admission fee” and permits the charging of “a fee for any value added services you add in producing or teaching based around the content providing that the content itself is not licensed to generate a separate, profitable income” This would therefore appear to permit a commercial training company to reuse OpenLearn CC BY NC SA licensed content as part of a fee paying training course as long as the licensed content itself is not monetised.

OYC, by contrast, does not permit sites, that “provides and/or promotes services for which the user will be charged a fee (e.g., tutor services)” to use the CC licensed content.

MITOCW, whilst stating that “A corporation may use OCW materials for internal professional development and training purposes“also states “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“. So a commercial organisation can carry out staff development using MITOCW CC BY NC SA licensed content but they may not provide chargeable external training.

Does it matter that even though MIT, Yale and the Open University all use the CC BY NC SA licence yet they intend and permit different uses of their licensed content?

Some of the benefits of CC licenses include the ease of use, and the familiarity of the symbols and the speed in understanding the human-readable Commons Deed. This enables the user of the licensed content to glean quite easily and quickly what their rights and obligations are in respect of the content. The provision of additional guidelines in the above examples may undermine some of these benefits and place an unnecessary burden on the user. It also contributes to uncertainty and detracts from any possibility of  consensus on the use and understanding of a NC licence.

The reason many institutions choose the NC licence may be to control the potential or perceived potential commercialisation of the licensed content. There is quite a compelling argument that content arising from state funded programme should be licensed with the most permissive terms. For example the US Department of Labour is funding $2 billion over four years to create OER materials for career training programs in community colleges. Where new learning materials are created using the grant funds, those materials must be made available under CC Attribution licence (CC BY).

I imagine it would not be easy in UK universities and colleges to demarcate “sate funded content” from the University’s “privately funded content” . Many HEIs and FEIs have a revenue generating ‘business arm’. What is state-funded and what is the commercial arm of the institution may be quite blurred.

To achieve the widest possible access and participation in global education the most appropriate CC licence for ‘open’ educational resources is the CC BY licence. But it doesn’t appear to be always such an easy procedural or cultural step for organisations to take.

If an institution decides that a CC licence with a NC component is the most appropriate licence for its needs, the CC+ Protocol may be worth exploring  for example by universities who may be making moves towards becoming private.

Creative Commons developed its free licences to enable people to share their works as they choose. Using the CC+ protocol permits copyright owners to easily accommodate acceptable non-commercial uses while directing commercial traffic to their own fee-based agreement.

What is CC+?

CC+ is a Creative Commons license plus another agreement, for example:

A copyright owner may pair a CC Attribution-Non-Commercial license [that is the CC] with a non-exclusive commercial agreement [that is the +] enabling a copyright owner to license the work commercially for a fee.

The [+] is a means to provide a simple click through to rights or opportunities beyond those offered in the CC licence. The creator is able to leverage the expanded exposure that results from otherwise freely distributed content.

CC+ is not another CC licence; rather it is a means to point users toward the copyright owner’s own “extension” of rights that may be additional to the existing CC license. The copyright owner is responsible for constructing the license that expresses those additional terms and conditions.

CC+ has many uses and advantages for both commercial and non-commercial users, for example:

• A copyright owner of content may choose to use a CC Attribution Non-Commercial (CC BY NC) Licence to make content available on the web so they can be shared easily and freely on a non-commercial basis providing attribution is given
• The copyright owner in this example may pair this CC BY NC licence with a + click-through to non-exclusive rights beyond those permitted under the CC licence such as allowing commercial use in return for a fee.

Other additional permissions beyond those provided in CC licences may include: permission to reuse without providing attribution (paired with any of the six CC licences); or permission to use without having to share alike (paired with CC BY SA or CC BY NC SA licences) or permission to create derivative works (paired with the CC BY ND or CC BY NC ND licences).

CC+ is another means by which copyright owners are able to exercise their copyright as they choose, on their own terms. Using the CC licence enables the free, easy and legal means of sharing on the web whilst the “extension” of permissions provided by the + has the benefit of clear “signposting” to commercial terms for additional uses of the copyrighted works.

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This is a guest post by Joscelyn Upendran (@Joscelyn on Twitter). Any views expressed are personal views and not that of any organisation or employer, and not intended to be legal advice nor should they be relied upon as such.