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(2) It is important to remember that NC is triggered by use - not by the user. That is:(1) If it's useful, I'm happy to arrange a webinar with a member of Creative Commons Legal team ... and me (the non-lawyer education guy. And we can talk through NC.Greetings Open Friends:I've been watching this thread with great interest.
A few points:
- IBM (a for-profit company) can legally use NC licensed resources for non-commercial purposes (e.g., providing free staff professional development for its staff).
- The Open University (a non-profit institution) could not use NC licensed resources primarily for commercial purposes. e.g., OU could not put MIT OCW (BY NC SA) content on its web site and sell downloads of MIT OCW content for 100 pounds (or other).
- It is, however, widely accepted in the global open education community, that OU can use the MIT OCW (NC licensed) content in its courses, charge tuition for those courses (as long as OU was not explicitly charging for the content), and not violate the NC license.
- Another example of allowed NC use: the OU bookstore could print an NC work (e.g., an NC licensed textbook) and sell that book to OU students as long as it was on a cost-recovery basis.
(3) In my 3 years at Creative Commons, I have learned (about NC use in education):
- There is a significant amount of unused middle-ground with NC. What I mean is: most licensors (the copyright holder putting an NC license on their work) want to share the work broadly (or they wouldn't have put a CC license on their work in the first place) ... and they simply don't want others to blatantly make commercial use of their work.
- Licensees (users of the NC work) tend to be overly cautious about using NC licensed works for fear that their use might be deemed "commercial" by the copyright holder.
- The result is a broad range of available use of NC works that goes unused.
(4) All of this nuance around NC is one of the reasons many open education projects avoid NC and instead use:
- CC0 - dedicating works to the public domain
- CC BY
- CC BY SA
Warmest regards,
Cable
PS - I am on the road... so please forgive my slow response times...
Cable Green, PhD
Director of Global Learning
Creative Commons
@cgreen
http://creativecommons.org/education
reuse, revise, remix & redistributeOn Wed, Mar 19, 2014 at 6:45 AM, Robert John Robertson <[log in to unmask]> wrote:
Pat,It should be noted though that ,as far as I recall for the strand of ukoer '3' UoN's pairs was part of, use by a third party outside of tertiary education was part of the call, so that use of the license in connection with that project may not reflect any given institution's practice or even their understanding of the license in other contexts.Cheers,John--On Wed, Mar 19, 2014 at 8:32 AM, Pat Lockley <[log in to unmask]> wrote:
OER 3 Paris project did just thatOn Wed, Mar 19, 2014 at 11:54 AM, Fred Riley <[log in to unmask]> wrote:What's the university of Nottingham's view on 'non-commercial', Julian? Seeing as UoN is a big OER provider via UNow, releasing its materials as CC BY-NC-SA, would it have a problem with its OER being used for non-profit purposes by third sector organisations?Fred
www.fredriley.org.ukOn 18 March 2014 22:56, Julian Tenney <[log in to unmask]> wrote:
I think ultimately, it comes down to a reasonableness test. I think there is a general consensus about that reasonableness, but applying it on a case by case basis is evidently difficult. Common law, as I understand it, is based on a legal consensus around reasonableness.
________________________________________
From: Open Educational Resources [[log in to unmask]] On Behalf Of Pat Lockley [[log in to unmask]]
Sent: 18 March 2014 13:05
ok, so 4 pints IOU attached
So if NC is defined by the licensor, then you'd need some level of due diligence (to upgrade from "getting it") would be required and logistically this could only be via a side letter / communication with the licensor? Which works with a small set of materials but not really with a large collection
Thanks though
On Tue, Mar 18, 2014 at 12:12 PM, Jason Miles-Campbell <[log in to unmask]<mailto:[log in to unmask]>> wrote:Jason Miles-Campbell | Manager | Jisc Legal | T 0141 548 2889 | E [log in to unmask]<mailto:[log in to unmask]>
The fundamental issue here is that ‘non-commercial’ is not an externally-defined concept. As part of a licence, it represents the understanding between the licensor and the licensee, in the particular context which brings them together. Statutory terms are often defined explicitly, or through the consideration of the courts. However, terms of a licence can only be defined as part of that licence. So it’s not about ‘getting’ NC, it’s about the in-built ambiguity of a concept that depends on its context. That’s why the report that Creative Commons commissioned on the NC restriction didn’t conclude with definitive statements as to its meaning. Instead, it analysed various factors which could be considered.
Now, it might be advantageous to remove such uncertainty, and, as I understand it, I think there may have been some consideration of removing the NC qualified licences from the CC 4.0 suite (as it happens, they stayed in). The sticking point, I think, is that there is a strong demand from licensors to be able to restrict commercial use. Perhaps if licensors were offered a more closely defined restriction “NTBS” (not to be sold), they’d be willing to switch.
In the meantime, licensors are free to define their interpretation of NC, or answer queries on such, as they like. They are likewise free to use an ad hoc licence if the CC terms don’t suit them. As much as I would like to be granted omnipotence to define ‘NC’ once and for all for the universe, that doesn’t fit, alas, for better or worse, with the art of licence interpretation.
In the absence of omnipotence, I’m always willing after four pints and a signed disclaimer to give my views on the application of NC in any particular use scenario ☺
Cheers,
Jason
From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Pat Lockley
Jisc Legal, a part of Jisc, is hosted by the University of Strathclyde, a charitable body, registered in Scotland, with registration number SC015263
To: [log in to unmask]<mailto:[log in to unmask]>
Sent: 18 March 2014 11:51
Subject: Re: non-profit = non-commercial
The only time at work I wanted to use a NC license I asked the creator for their definition and we agreed the use case I presented was commercial so I didn't use it.
So to summise so far
1) No one really gets NC
2) Some people feel the spirit of NC means non-profit is ok (which I agree with)
On Tue, Mar 18, 2014 at 11:34 AM, Scott Wilson <[log in to unmask]<mailto:[log in to unmask]>> wrote:
On 18 Mar 2014, at 11:22, David Kernohan wrote:
> Hi all - no-one has ever understood the creative commons non-commercial clause. There are rumours that somebody at CC central once did, but this was quickly hushed up and the person responsible is now safely hidden away in Kazakhstan.
>
> Unsurprisingly, there is little case-law around NC.
>
> A former Dutch MTV VJ (remember VJs?) shared some images on Flickr via a BY-NC-SA license and a gossip magazine reprinted them. The magazine was fined and told not to do it again, but this centred on the SA component of the license.
> http://news.cnet.com/2100-1030_3-6052292.html
>
> The Vodafone Australia case (http://en.wikipedia.org/wiki/Virgin_Mobile_Australia ) was the other main one, but all mentions other than on Wikipedia now appear to be behind "The Australian" 's paywall.
>
> I've been consistent in advising people always to go for -SA clauses rather than -NC clauses to avoid confusion (and I'll reiterate this here for any new readers). But if something is NC and your use may be commercial in some obvious way I would advise people to contact the source of the material and ask them.
Also worth remembering that the rights owner can issue the same resource with different licenses. So there is nothing to prevent the rights owner issuing a standard commercial use license that removes the "NC" ambiguity.
Though if you do issue resources under an NC clause, I think the best strategy is to prominently display an explanation of what YOU think NC means, as that will help licensees figure if they can comply with your intent.
>
> David
>
>
> -
> David Kernohan
> Jisc
>
> -----Original Message-----
> From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Alex Fenlon
> Sent: 18 March 2014 11:01
> To: [log in to unmask]<mailto:[log in to unmask]>
> Subject: Re: non-profit = non-commercial
>
> Hi Pat et al.
>
> I remember several of these discussions taking place over recent weeks and months (and years even!) as we've struggled with the different interpretations. I seem to recall there was something from CC themselves about taking care to define what NC means. I think the advice was for each Licensor that grants an NC licence to consider what it defines as commercial use and also NC. This would remove the ambiguity at least for Licencees of those particular works and help in those circumstances. (I also have bells ringing where certain OER-ers did do this ... ?)
>
> Not sure that helps much either with the umbrella approach you might be looking for Pat.
>
> Alex.
>
> -----Original Message-----
> From: Open Educational Resources [mailto:[log in to unmask]<mailto:[log in to unmask]>] On Behalf Of Chris.Pegler
> Sent: 18 March 2014 10:53
> To: [log in to unmask]<mailto:[log in to unmask]>> From: Pat Lockley [[log in to unmask]<mailto:[log in to unmask]>]
> Subject: Re: non-profit = non-commercial
>
> Pat
>
> If its non profit its not profitable after all costs are accounted for, which raises an issue about what the costs are and so what the 'cost price' is. For example its common in universities for the cost of an academic to include not only their salary but also a whole load of overheads. This can almost double the cost and includes an automatic allocation to all sorts of general expenses. Did you mean 'direct costs'?
>
> This sort of discussion also comes up when charities charge large admin fees. For example including large salaries.
>
> This may not be the solution that you are looking for?
>
> Chris
>
> ________________________________________
> To: [log in to unmask]<mailto:[log in to unmask]>
> Sent: 18 March 2014 10:41
> Subject: non-profit = non-commercial
>
> Hello all,
>
> Discussion in the other place led me to an sticking point with NC licenses
>
> If there was a site which sold - at cost price - physical copies of presently digital OER, say bound printed epubs or CDs / DVDs, and in the sale of these items made no profit (so was non-profit /
> provident?) would you consider that commercial?
>
> Thinking is for people who don't have easy access to the internet this might prove a useful intermediary
>
> Pat
> -- The Open University is incorporated by Royal Charter (RC 000391), an exempt charity in England & Wales and a charity registered in Scotland (SC 038302).
R. John RobertsonePortfolio and Online Learning SupportLearning TechnologiesUniversity of Wisconsin OshkoshTwitter: @kavubobSkype: rjohnrobertson
--