CC General Counsel Diane Peters addressing affiliates / DTKindler Photo / CC BY

The Creative Commons 2011 Global Summit was a remarkable success, bringing together CC affiliates, board, staff, alumni, friends and stakeholders from around the world. Among the ~300 attendees was an impressive array of legal experts. Collectively, these experts brought diversity and depth of legal expertise and experience to every facet of the Summit, including knowledge of copyright policy across the government, education, science, culture, and foundation sectors. We designed the Summit’s legal sessions (pdf) to leverage this expertise to discuss our core license suite and the 4.0 license versioning process.

The 3.0 License Suite

The current 3.0 license suite has been in service since 2007, and is faring extraordinarily well for many important adopters. Notably, government adoption and promotion of the licenses for releasing public sector information, content and data has increased in the intervening four years, predominantly leveraging the 3.0 licenses. From the New Zealand Government Open Access and Licensing Framework, to the explicit acceptance of CC BY by the Australian government as the default license for Australian government materials, to the official websites of heads of state, to numerous open data portals, governments are increasingly looking to and depending on CC licenses as the preferred mechanism for sharing information.

As robust as the 3.0 continues (and will continue) to prove for many adopters, we also have learned that limitations exist for other would-be adopters that inhibit use of our licenses. These limitations set the stage in some instances for the creation of custom licenses that are at best confusing to users and at worst incompatible with some of CC’s licenses. One of the more compelling limitations driving the need for versioning now is the existence of sui generis database rights throughout the European Union, and the treatment of those rights in CC’s 3.0 licenses. But other limitations also exist for important categories of those would-be adopters. For example, although 55+ jurisdictions have ported some version of the CC licenses to their jurisdictions, there remain many others that want to leverage CC licenses but are without necessary resources to undertake the time-intensive process porting demands, and do not wish to use the international (unported) suite however suitable those licenses are for adoption worldwide.

So as well as our 3.0 licenses operate for many, we recognize as license stewards there exists room to improve if we are to avoid risking a fragmentation of the commons. Of course it bears emphasizes here and throughout the versioning process that 3.0 license adopters can continue to count on our stewardship and support for that suite, just as we have done with all prior versioning efforts. We are committed to remaining alert to revisions that might undermine or compromise pre-4.0 license implementations and frameworks, and will now more than ever look to the expertise and dedication of our affiliates to assist us with the process and the subsequent adoption efforts.

Beginning the 4.0 Process

Michael Carroll / Kalexanderson / CC BY

Against this backdrop, Professor Mike Carroll, CC board member and founder, led a discussion around CC’s plans for beginning the versioning of its licenses from the current 3.0 version to 4.0. His remarks provided a detailed explanation of the reasons leading CC to version in 2012, given the limitations for several adopters in the existing suite, the many opportunities at hand, and the current environment of accelerating adoption by governments and others.

CC’s goals and those of our affiliate community for 4.0 are ambitious, and include:

• Internationalization – position our licenses to ensure they are well received, readily understood, and easily adopted worldwide;
• Interoperability – maximize interoperability between CC licenses and other licenses to reduce friction within the commons, promote standards and stem license proliferation;
• Long-lasting — anticipate new and changing adoption opportunities and legal challenges, allowing the new suite of licenses to endure for the foreseeable future; and
• Data/PSI/Science/Education — recognize and address impediments to adoption of CC by governments as well as other important, publicly-minded institutions in these and other critical arenas.
• Supporting Existing Adoption Models and Frameworks – remain mindful of and accommodate the needs of our existing community of adopters leveraging pre-4.0 licenses, including governments but also other important constituencies.

These goals for 4.0 are not arbitrary — rather, we have recognized them as important levers for the CC license suite to support achieving CC’s mission and vision.

Addressing Restrictions Beyond Copyright – sui generis database rights and more

By design, CC licenses are intended to operate as copyright licenses, granting conditional permission to reuse licensed content in ways that would otherwise violate copyright. Once applied, wherever copyright exists to restrict reuse, the CC license conditions are triggered, but not otherwise. Yet what about that category of rights that exist close to, or perhaps even overlap with, copyright, making it difficult to exercise rights granted under CC licenses without additional permissions? This question drew the focus of Summit attendees across several of the legal sessions, particularly in the context of sui generis database rights that exist in the European Union and a few other places as a result of free trade and other agreements. Participants evaluated the practical problems associated with continuing CC’s existing policy of waiving CC license conditions (BY, NC, SA and ND, as applicable) in the 3.0 EU ported licenses where only sui generis database rights are implicated. Among others, Judge Jay Yoon of CC Korea provided a practical perspective on the challenges associated with CC’s current policy.

DATABASE at Postmasters, March 2009 by Michael Mandiberg / CC BY-SA

Sui generis database rights are widely criticized as bad policy, and are unproven in practice to deliver the economic benefits originally promised. While these views were shared by the vast majority of affiliates attending the Summit, many also agreed that a reconsideration of CC’s current policy is appropriate, and that we should shift to licensing those rights in 4.0 on the same terms and conditions as copyright. This change in policy would be pursued in the greater interest of facilitating reuse, meeting the expectations of licensors and users, and growing the commons.

As foreshadowed earlier this year, and now with support from CC’s affiliate network, CC intends to pursue this course in 4.0, absent as-of-yet-unidentified, unacceptable consequences. Importantly, we will take great care to ensure that by licensing these rights where they exist we do not create new or additional obligations where such rights do not exist.

As the steward of our licenses and one of several stewards of the greater commons (including the Free Software Foundation and the Open Knowledge Foundation), we remain mindful and take with utmost seriousness the risks associated with shifting course. We fully intend to (and expect to be held accountable for) strengthening our messaging to policymakers about the dangers of maintaining and expanding these rights within the EU and beyond, and of creating new related rights. We also plan to develop ample education for users to help avoid over-compliance with license conditions in cases where they do not apply.

Further Internationalization of the CC Licenses

Until version 3.0, the CC licenses had been drafted against U.S. copyright law and referred to as the “generic” licenses. At version 3.0, that changed as we made our first attempt to draft a license suite utilizing the language of major international copyright treaties and conventions. While a vast improvement over pre-3.0 versions, there remains ample opportunity to improve to reach those who cannot or would prefer not to port. Thus, one of our major objectives with the process will be to engage with CC’s knowledgeable affiliates around the globe with the intention of crafting a license suite that is another step further removed from its U.S. origins, and more reflective of CC’s status as an international organization with a global community and following. This focal point will impact the versioning process in several respects, and will require the engagement and focus of our affiliate network, other legal experts and the broader community. But it will also impact our work post publication, where the legal expertise of our affiliates will become still more relevant to adoption efforts and implementations.

As part of this discussion at the Summit, Paul Keller of CC Netherlands and Kennisland led a robust conversation on the wisdom of the CC license porting process, and Massimo Travostino of CC Italy and the NEXA Center gave a presentation on the legal and drafting issues involved with creating global licenses.

Defining Noncommercial; License Enforceability

The legal program also included a presentation by Mike Linksvayer on the definition and future of noncommercial and an update from Andres Guadamuz on CC license enforceability. While a decision about retaining or modifying the definition of NC in 4.0, and branding thereof, remains open, any change has a high barrier to demonstrate it would be a net benefit to the commons, given the broad use and acceptance of CC licenses containing the NC term. And CC’s licenses in court continue their strong enforceability record, most recently with a favorable decision in September 2011 that enforced BY-SA in Germany. We plan to take caution when drafting 4.0 to avoid making changes that could compromise this record.

Next steps in the versioning process will be announced shortly to this blog and the CC license discuss list. Subscribe to stay apprised of future announcements about the 4.0 process and how you can contribute.

Thanks to everyone who contributed to the license discussions and helped make the Summit a success!

For those of you who don’t know Karien Bezuidenhout, she is the Chief Operating Officer at the Shuttleworth Foundation, one of the few foundations that fund open education projects and who have an open licensing policy for their grantees. A couple months ago, I had the chance to meet Karien despite a six hour time difference—she was in Capetown, South Africa—I was in Brooklyn, New York. Via Skype, I asked her about Shuttleworth’s evolving default license (CC BY-SA to CC BY), her personal stake in OER, and how she envisions us (CC Learn and Shuttleworth) working together. She also gave me some insights into three innovative open education projects they have a hand in: Siyavula, M4Lit, and Peer 2 Peer University (P2PU).

The conversation below is more or less transcribed and edited for clarity. It makes for great holiday or airplane reading, and if you’re pressed for time, you can skip to the topics or projects that interest you. This is CC Learn’s last Inside OER feature of 2009—so enjoy, and happy whatever-it-is-that-you-are-doing-in-your-part-of-the-world!

How did you arrive at your current position and its relation to open education and open educational resources?

I did an undergraduate degree in accounting and taxation, but I very quickly realized I don’t ever want to be in a purely finance job. I wanted to be in social development, but when I went to university I didn’t actually think of this as a viable option. After I finished my degree, I started looking around and I was fortunate enough to find a job in social development, helping to establish an organization and its programs. Next the work of the Shuttleworth Foundation looked interesting so I joined them as a Project Manager in their free and open source software unit. It wasn’t software development; it was basically advocacy programs around free and open source software, engaging government, education, the private sector and the public on the use and underlying philosophies of free and open source software. From there, I moved into the education unit at the Foundation, it was actually a very natural progression. We believe in the principles of free and open source software, and the Foundation became interested in saying, well, it’s not just about software, but also about an intersect between the ideas behind free and open source software and education. We became interested in this idea of open education or open educational resources, and it went from there. My position grew with the organization’s interest in this area. So I started as a Project Manager specifically around this area, grew to a Program Manager, and from there I became the Chief Operating Officer.

Were you interested in open source and openness in general before you joined Shuttleworth?

Not really; I didn’t really know about it before I joined. Once I joined I thought, wow, everyone should actually know about this—why don’t people know? That was in 2004. Now I actually find more and more people have at least heard about something in this general area, whereas at that stage it really was just in the realm of geeks. I joined based on the fact that I could project manage, but I don’t know anything about this stuff. I told them I’d like to learn and it’s actually been a very interesting journey.

What were you doing before that?

I was in program work as the Project Coordinator at the Trade Law Center for Southern Africa.

How has that work influenced what you do at Shuttleworth?

It’s very interesting because we were working on trade law and trade regulations and one of the things that was being investigated at the time that I was there was the TRIPS provision on Intellectual Property rights. A lot of the work we did was in preparation of and in conclusion from the Doha Declaration on protecting African interests in the trade negotiations and implementation around it. So I had the formal exposure to, “we should protect and we should lock down!” Coming here (to the Foundation) it was really interesting because you see the other side of it. What it did help me do was think about the other side of the issue, what the arguments are that people use when they’re talking about lock-down and increasing rights for owners and decreasing rights for users… So when I started working in this area, it was easier to understand the contrast and to be able to present the case to people in a way that counters their arguments.

So then, as an overarching mission statement, what would you say the Shuttleworth Foundation stance on OER is if you could sum it up in a few words?

The underlying philosophy of the Foundation is around methods of openness, you know the values that underly the free and open source software movement. Transparency, building communities, collaborating, sharing, building on what others have done, making available what we’ve done. These, for us, are the values of what we’re trying to do in open education as well. And then of course the Cape Town Declaration which Ahrash (Bissell, from CC Learn) was a part of developing. So there are three things from the Cape Town Declaration that is important for us: People should participate. (Open education is about more than open licenses.) People should make their works available under open licenses. And people should make policies to allow for and encourage these things to happen.

What would you say is the role of Creative Commons in facilitating that process or that mission?

It’s an interesting question because the Creative Commons license for me is actually the key part, and enabler. I mean we wouldn’t be able to do it without the Creative Commons licenses, simply because trying to explain and make clear to people what it is they can and can’t do in each instance would be almost impossible. You’d have different lenient licensing statements on each and every site which would result in things that are almost as difficult to navigate as the uncertainties in the prevailing copyright system. So basically licenses set the rules of the game for everyone who wants to play. And they’re absolutely essential in that.

The question about what Creative Commons as an organization’s role is, is a completely different one. And that’s one to which the answer isn’t entirely clear to me. I think, especially in the early days, there was a lot of pressure on Creative Commons, and I think the same for CC Learn when it started, to be the community leaders. And it didn’t appear to me that that was what the organization wanted to do. It mostly tried to focus on the licenses. Now, looking back at it, I think that was appropriate, making sure that the licenses are clear and understandable and usable and are used—I think that was the most important part that they had to play. Of course connecting people is equally important. It seems the role is evolving, including more networking and connecting the people in this space, in the way that you now do the interviews and showcasing of projects, saying these are the people who use these licenses, you guys should know about each other.

Going back to what you said about the licenses and how they’re a key part of open educational resources, I found that really interesting because there is sort of this trend going towards people arguing how Creative Commons is part of the infrastructure of open education. So I was wondering if you had any analogies or real world analogies that you would use for the licensing aspect of open educational resources.

Hmm, I started thinking of them as the rules of the game, but a colleague suggested they are actually more like the rules of the road. Because the roads are part of the commons (like knowledge) and everyone uses them, nobody thinks this is my road, I’m here now, and nobody else can be here. It’s about there being something for everyone to use that’s valuable, that everyone contributes to in terms of development and upkeep, and that people need rules to be able to use safely and happily and get where it is they need to be going in their educational journey.

I guess getting more specific, talking about the actual OER initiatives that are funded by Shuttleworth, including the M4Lit project, Siyavula, and the P2PU, could you tell us a little bit about all of them?

Sure. Siyavula is an initiative to provide access to open educational resources that specifically match the South African school curriculum for grades 1-12. The making available of the resources is a key element of it, but it’s not the only one. It’s more like a grain of sand when you’re trying to make a pearl, because what we’re actually interested in are the processes around that—how teachers collaborate, how teachers form communities of practice around the materials, how they adapt the materials for their own uses and share that back with the greater community. And we believe teachers have a lot to offer in that regard, but that it’s under utilized by the teachers themselves. They just don’t have the time or they’re not mobilized around it. By making the resources available, we give them a head start, but then we’re interested in how those communities form and how to help teachers with professional development and curriculum delivery in the classroom.

M4Lit is a practical exploration of the use of mobile phones specifically in education. In South Africa there’s still, and I think it’s the same for around the world, there’s still a great deal of  suspicion from schools and teachers around mobile phones, most considering it a distraction. But it’s a pervasive technology in the hands of teens and learners anywhere, so we’re interested in finding ways of actually using them for education. It’s a way that kids communicate; they do more writing on mobile phones than they would have ever done in essays and/or letters in school, so is there a way that we could harness that in South Africa? So we made available this serial story specifically for mobile phones to see—do kids read more, do they interact, do they write back, do they comment, those kinds of questions. It’s a small project in the sense that we started with one story and a small focus group, wanting to engage with learners directly, and we’ve had some pretty good responses so far—pretty good comments from kids and the focus groups have been really positive about it. That’s actually been really great.

So have you gotten a lot of participation from the students?

We didn’t publish it that widely, we wanted to make it a small pilot, because there are so many mobile phones around and so many potential uses, it’s easy to get lost in trying to meet too many needs and requirements, when actually there are specific solutions we’re exploring for specific groupings, and so we tried to keep it small. Initially we had a couple of hundred teens participate, which is pretty good, but eventually we reached a couple of thousand teens, exceeding readership numbers for accepted “best seller” figures for teen literature.

What would be the next step for the project after this initial phase?

Once we have all the findings back, I think there will be two ways of taking this forward. One is to go into schools and try to create direct links to the curriculum and involve teachers. We could show that we have interest from learners in terms of engaging in this way with long form writing and mobile phones, so instead of just chatting and responding via text message, [it would be] reading things that are a bit more substantial. It would be interesting to see how teachers respond, how they could use it for language teaching as it happens in the classroom. Or as a matter of fact, beyond the classroom. The other path is, of course, that we’ll make the platform and the story available under open licenses, if anyone else wants to try it in their local area, then they’re open to do so. We’d love to see more applications of the approach, and some variations on it.

And then of course you know about Peer 2 Peer University… Given that there is so much open courseware out there now, how do we support self-learners who want to use some of those materials.

Which direction do you see P2PU going in? Because I’ve heard it described more as a study group for peers to get together and the role of the course organizers is less of a teacher or an instructor but more as an organizer or facilitator. And then other people might view it more as these volunteer instructors [that’s] more akin to distance learning but with open educational resources. And I was wondering what your stance or view on that was.

I have my personal preference but I think it should be open to both options. I think it should be the kind of platform where you can have, as we have now, courses run in different ways. My personal vision, if I were to put it in that way, for the Peer 2 Peer University, would be more peer study group—less distance education.  But I think the really important part is that there should still be a course coordinator, who puts together the curriculum and reading list, because I think for self-learners, what’s sometimes difficult is that you can find fifty different articles on a specific topic. How do you know you’ve got the balanced view? How do you know you’ve got all the information you need? I think the course outline done by a tutor or coordinator is important and I think that peer learning is the way to go.

On the specific course that I was on, we had peer assessment and it was really challenging! You read other people’s work and it’s difficult to assess while you’re still learning yourself. But it was also very valuable, because we made sure that we read all the other answers to the weekly questions, and we thought well, do we agree, don’t we, is it similar to ours and if it isn’t, why isn’t it. The subject matter (copyright for educators) also meant that the answers would be jurisdiction specific. I’m in South Africa, so I focused on the South African situation, but then I also had the opportunity to learn what’s happening in Australia, the U.S. or India and that was great.

So all these initiatives that the Shuttleworth Foundation is supporting, they’re all licensed pretty openly, either under CC BY or BY-SA, and I was wondering why the foundation decided to support these initiatives that allow for commercial adaptation of its content when a lot people are pushing the Noncommercial term in other open educational projects.

Well, I think, to begin with, we were open to the commercial angle because in the greater Shuttleworth group we’re the only nonprofit entity. We’ve got venture capitalists that’s part of the group, so commercial pursuit was normal to us, I think that kind of predisposed us to be open to that. I just don’t think that you can separate out education and commercial use so easily. If you look at a private school, for instance, is that commercial use or isn’t it? If you take schools in South Africa, they can’t survive with only the government subsidies so they charge school fees. In some instances they charge for the printed educational resources; is that commercial use or isn’t it? I don’t think that commercial use is clearly enough defined, and I also don’t think that you can entirely separate it out of education and say, education is always not-for-profit or noncommercial and therefore, it’s only those people out there who are trying to make money off it.

Secondly, I think commercial enterprises are key participants and an important part of social development. Otherwise you will always have nonprofit entities or donor entities pushing money into certain sectors, and at some point you don’t want to only transform the nonprofit sector, you also want to transform societies, and you want people to be social entrepreneurs and you want society to take up the ideas. The only way I believe you can sustainably do that in the long run is by involving commercial entities and allowing them to be part of the process. It’s not to say that every single thing should have a commercial leg or anything like that; I just think that we should also allow them to be part of it. If you brought a big enough community around open educational resources and you say, we’re going to make available these resources for free; we’re going to put them on our websites, we’re going to publicize that they’re there for use—that will actually prevent those who are trying to profit unjustly off other people’s work by making it widely known that there’s a free version available. People who do use it for commercial purposes are going to have to add value to be able to sell it as a commercial product. And therefore I think that’s okay to allow that in.

So then even within those projects I mentioned, you have distinctions between the kinds of licenses that they use, and I was wondering what was driving those distinctions, and how it affects those projects. For instance, M4Lit is BY-SA and P2PU is CC BY.

Part of it is an evolution in our own thinking, and part of it is specifically project driven. The evolution in our thinking happened as the open educational resources community matured. Initially we picked CC BY-SA, because there were very few open educational resources out there, and we believed it was the only way that you could grow the community and provide some comfort and security to early adopters. We were essentially saying, don’t worry, everybody else has to do the same. Everyone else who uses your material is going to have to contribute back into the pool.

But as the content pools have grown and as the community has grown, opportunities for partnerships came up and we started running into interoperability challenges more and more. Because of this, [interoperability] started becoming more important to us. The ShareAlike provision was a safe condition for people who were worried about adopting open licenses and saying, won’t someone else use my work and benefit without giving back. But actually there are bigger questions than that. It’s about saying, do you want to participate? Do you want to contribute and collaborate? And do you really believe in the principles behind this? Then you should contribute and collaborate; you should participate. And it should be as free and open for people to use as possible. We don’t want unintended restrictions. We don’t want to end up with people who can’t translate our work, or who can’t include our work in their collections, thereby limiting their reach. If OER Commons wants to use it, or Curriki, or CK12, or anybody else, they should be able to, and they shouldn’t be stuck with a licensing restriction that prevents them from reusing and remixing the work in ways that we want to support.

Siyavula for instance [is a project where it] became most apparent and important to shift. Even though we were philosophically thinking in that way already, we hadn’t yet made the shift in the license we applied throughout all of our projects. Then we started working with Connexions on Siyavula and we realized that Connexions used CC BY and we used CC BY-SA, and essentially those weren’t compatible and we could lose a partner because of the more restrictive license we used. That was the final point at which we decided that CC BY was the license for us.

We still allow projects and initiatives to debate the licensing issue for themselves and motivate for an alternative license for their specific situation if they’d like, but CC BY is now the default position.

So judging by a lot of your answers, CC Learn and Shuttleworth—we seem to be on the same page about a lot of these things. And I know you mentioned before how you envisioned Creative Commons or CC Learn’s role in sort of developing the community a bit and serving as community leaders. Do you picture us working together in the future? And what do you see CC Learn’s role becoming in the future?

Yeah, so we would love to work together in the future. I think one of the things we’ve been doing over the past couple of years is staying in touch and sharing information which has been really valuable. This links to the role CC can play, putting people in touch and saying, this is what other people are doing, take note, how does it impact on what you might want to do. It has changed some of my own thinking over the years and that’s been really, really valuable.

Also the Shuttleworth Foundation has a fellowship program, which I’m sure you know a little about given that you know quite a few of our current fellows. The fellowship program is really about freeing up the time of individuals who have a vision for their part in bringing about positive change in the world, to do just that—go and change the world in the way that they see it. There is also the possibility of matching project funding – if the fellow wants to implement a project idea within the scope of their fellowship, the Foundation will match every unit they invest themselves by at least ten-fold to help them get their projects off the ground. I think that it would be great if CC Learn could share ideas with us on individuals that they think are valuable to support in this way.

And then obviously I think networking and connecting the community around the licenses are really important, especially in [the] education sector, and CC Learn can (and does) help to drive discussion and establish a base around issues like, what does commercial and noncommercial really mean? What is the best license for my situation? CC Learn just recently released a paper on Why CC BY. Those kinds of activities are very important because the community really looks to Creative Commons and CC Learn to see what the right thing is to do. CC Learn are the ones who should drive making the rules of the road and supporting others in using them.

Do you have anything else to add, any last words?

I think that [open licensing] is really important for foundations and funders to do. I don’t know if you’ve seen the Berkman report on open licenses and private foundations. It mentions the Foundation, among others, and our approach to open licensing. It is important for funders and foundations to actively use open licenses. Because if anyone can say, I don’t have to earn my keep by commoditizing this content, I really do believe that our funding should go as far as possible and that the investments that I make should reach as many people as possible, it’s funders and foundation—using open licenses is the way to do it. It’s a policy within the Foundation to release everything under an open license. We’ve had a couple of potential partners who’ve said, no we don’t want to do that, and then we walked away and said that, well maybe they’re not a good match for us anyway. We have also found people are more and more open to this idea, and if anyone can afford to do this it’s funders and foundations. I really do think that they should prioritize that.

We have a recommendation sheet just on this, on encouraging funders. It’s called, Increase Funding Impact. It’s on learn.creativecommons.org/productions. And we have a bunch of documents on there—Why CC BY? Stuff like that. So I would encourage you to check it out.

I will, definitely, thank you very much. That is one of the challenges, starting from scratch on every discussion. Advocacy documents are so valuable. It helps convey the message that the ideas we present aren’t coming from a lone ranger, but are well established and backed by sound arguments from a growing global community.

CC BY-NC by Stephen Downes

So I caught up with him via Skype; and though different operating systems and timezones may have jumbled some of our conversation, I was still able to catch most of his words, if not the heart of his views. Below is our chat transcribed, in more or less the same fashion as it progressed.

If you could just briefly introduce yourself and explain your position at the National Research Council of Canada?

I’m Stephen Downes. I work for the National Research Council of Canada based near New Brunswick, Canada, and my position here is officially titled Senior Research Officer. So I’m a researcher–that’s kind of like being a professor, except without students, although I do teach a course with George Siemens online, so that’s sort of like having students, too. My work involves research… I do some project development, project management, I do some writing. I do some public speaking and talking in areas like this. I do a daily newsletter; it goes out to several thousand people around the world, and [I do] basic, various other activities that are relevant.

So how does this position facilitate your mission related to OER or Open Education?

Well, for me it’s how does OER facilitate my mission. My mission is to make it so that every person around the world has full access to educational opportunities and equal opportunity to make the most of their lives. Open educational resources are an important part of that because, of course, access to open materials enables all of that. So what I do works hand in hand with open educational resources in the sense that a lot of what I’m up to is building and recommending networks and structures to facilitate the easy creation, easy reuse and redistribution of resources, and ideally, these are free in every sense of the word resources.

So that kind of gets a little bit at what access means. What constitutes the ideal level of access for you? Is it just having free access online to view [the resources]?

That’s sort of a funny question. Because now there’s a lot of other discussion that’s sort of sitting there. Because of course access isn’t just viewing stuff free online. But then, what does it mean? Does it mean having a copy locally on your computer? Does it mean being able to incorporate it particularly into your own work? Yeah, I think it does. It’s similar to Stallman’s four freedoms. Which are, roughly adapted to the OER space, the freedom to access, the freedom to adapt, the freedom to redistribute, the freedom to remix. So you know, it involves not just seeing it, but seeing how it was created. To be able to take it and rework and harvest it. I think all of those are important. I might add that learning itself is not a passive activity. In order to learn, we have to be active. You have to do things; we have to create things. So learning, whether it occurs in the classroom, in a formal situation or informal situation, it involves not only accessing, but remaking, remixing, repurposing, and rewriting learning resources; the creation of learning resources; the redistribution of them.

Assuming that everyone has achieved this initial access to open educational resources, and to education in general, would the open education movement have achieved its end goal? Or do you think there’s something more that has to be done?

No, that’d probably do it. (Laughs) I’m sure the people involved would find something else…

Well, if we assume for a moment that we have a deep and diverse quality-tested and wide open corpus of open educational resources, what additional barriers would remain for more positive and transformative impacts that we are hoping for in education?

Other than the educational system itself? George Siemens and I had this in our course and we talked about three dimensions of open education. The first dimension is access of resources themselves–the reading, tests, whatever. The second dimension is harboring [leveraging] that corpus, and that’s access to learning deliberately… offering more instructional delivery openly. So we’re offering not only the resources, like MIT does, but we’re going a step further to actually offering the instruction itself online.

So [George and I] get these additional enrollments. Last year the course had 2200…this year it’s not nearly as popular as it only has about 700 people. Anybody can access any part of it.  And then there’s a third dimension of openness that we’ve talked about and that we are adding to our corpus. And that’s open assessment, which offers a way outside the system.  Or how in order to get a degree you must go to a college first, and this offers some other way of doing it. This is open access to evaluation to assessment… So we talked about opening that social source community or open assessment and various levels of that.

I read in your recent post on copyright, the one on Half an Hour, and you mentioned that while you were a self learner, going to night school classes in Ottawa, and at the University of Calgary obtaining your first degree, you found that the biggest barrier for a self learner in wanting an affordable education was copyright. And in that sense, Creative Commons licenses have offered an alternative to “all rights reserved” copyright, allowing the creator of the open educational resource to choose how open their resource is.

I recently read a post by David Wiley talking about how openness is not a binary factor; he used the analogy how a door that is open at 2cm is still partially open, but you know… the door is obviously not open enough for a person to walk through that door. So in light of your statement about access to education and everything that comes with it, how open is open enough for OER for you? In terms of the particular license you would choose for OER or anything else?

Well for me the big barrier as always is a financial barrier. So what I mean is–a system of information distribution that existed at the time was based on information sale–the sale of books for example, the sale as default. And so for me, fundamental open access is free access. You know to me it’s a contradiction to say that we have open access but you have to pay for it… So as I mentioned earlier, free access is not simply to look at it. Learning involves more than just looking at things and displaying content; to learn is essentially to work with material. To conceptualize the material, to remix material for open access of a form that enables resubmission of the work… The educational system doesn’t have that open access that’s something like the four freedoms… so I would say it’s the freedom simply to read, [and then] to take the material and repurpose it for your own uses.

In that vein, what CC license do you prefer for OER? Obviously, the Noncommercial-No derivatives license (CC BY-NC-ND) doesn’t fit that ideal because it doesn’t allow adaptation.

I mean, this is a debate David [Wiley] and I have had on many occasions. The license I would use for educational material is Creative Commons Attribution Noncommercial Share-Alike (CC BY NC-SA), and you know Noncommercial is a contentious clause… and the reason I use the noncommercial clause is that I don’t want to participate in a plan where educational materials are taken and made commercially available in such a way that the openly and noncommercial available version of the resources is not available. And that’s what happens where you share things with a license that allows commercial use.

But making your work available through an Attribution only license (CC BY), [though] it does allow others to reuse it and maybe even use it in a commercial enterprise, it does not prevent the access of the original work online. So how–

Here’s what happens right: You allow for commercial use so somebody prints that and say, takes it overseas and takes it to this remote community and then lobbies against the provision that enables access to the materials on the grounds that the content is available anyways. See, there’s a situation in these communities where their only access to a resource is commercially, and the commercial quarter’s interest is ensuring that the noncommercial access is not allowed, is not available. They take and produce commercially in proprietary formats, like the Kindle reader… so the materials are not available outside the Kindle, or only commercial materials are. So a person using the Kindle, say, that has acquired it perhaps through their high school, can only access the commercial version of the resource. This is what happens. To the person, access to the noncommercial material is closed so that only the commercial content is accessible.

So you’re talking about areas that don’t have Internet access to the original?

Well that’s one kind of closed, right? But that’s not the entire picture. You can have them closed by geography; you can have them closed by technology; you can have them closed by legal arrangements.

So do you have a specific example of any country or region in the world that this has happened to–where they’re not allowed to access the free [and open] work but only the commercial versions of them?

I mean, not allowed or not able? ‘Cause I gave an example of the Kindle… which is a case where they’re not able to access the open version of the work. Go try to open up Kindle right now; you cannot open your Kindle. And then any place with limited Internet access is a place where only the Kindle version is available.

But what’s stopping people from… or other enterprises from taking the original work and making it available in those regions?

Well, look at what’s happening in Britain with the BBC. The BBC is attempting to take educational materials and make them accessible and agencies like BSkyB are taking them to court because they view it as a quote-on-quote ‘unfair competition’. Let’s take the public Internet companies in the U.S. It’s the same story. People, themselves, are forming pockets in order to create Internet wireless gatekeepers… And companies who aren’t actually involved in wireless of any sort, in communities, are taking them to court… Again, arguing that free content is an unfair competition. So this is the sorta thing that these kind of examples reflect.

Since they’re dealing with it in the courts, your preference is just to operate in a separate sphere outside of the commercial sector? [And you're way of doing that is] not licensing it with a Noncommercial license.

Basically, yeah..

But you still support initiatives like Flatworld Knowledge, for instance, who–they’re the only ones who have control over the work to commercially make it available because they have licensed their textbooks under a Noncommercial [license]…

Yeah, I find it kind of ironic that after all the conversations I’ve had with David Wiley whether we should use a Noncommercial license, he gets involved with Flatworld Knowledge. I mean, one of the purposes of Noncommercial licenses is to protect the commercial advantage of the person who issued the license. I don’t have a problem with that; I don’t consider the sale of content to be the provision of free learning, the provision of open educational resources, but if they can make money selling something that they’re already offering for free, I don’t mind that. Besides if it’s not a matter of whether it’s open or not, it’s outside my realm, my interest.

Ok, I guess we can move on from noncommercial. I’m interested in your view on open courseware. David Wiley recently distinguished between open courseware 1.0 and open courseware 2.0, and that was in reference to the recent discontinuation of funding for Utah State Open CourseWare.  And he suggested that it wasn’t the lack of funding on the part of the university, but the lack of priority for developing resources which, after the fact, would become OER.

Yeah, what did George Siemens say…

There’s a quote by George that says, “Openness should be built into the process of curriculum design and it should be systematized.” I was wondering if you agreed, or what your view on that was.

Yeah, in the short version I agree. There’s a longer version that’s a lot longer. Now, the point George made, and that is the inspiration for mine as well, is that creating an open educational resource is kind of like creating a customized version of the resource. It’s like creating a low carbon emission car is what you’re doing, but in general you just want the car… It’s like you want whatever comes in the box however it is you want to throw it in the box. And you don’t want to set up a development like a car where the creation of open resources is only some kind of add-on or customization, and that’s the case right now.

The other aspect has to do with sustainability. Like David Wiley who was at Utah. Then he moved to Brigham Young and there wasn’t the local support at Utah to continue the program there… and that creates a great division between open resources that seek funding from foundations and community based resources, such as Wikimedia, Wikiversity, Wikieducator and the like… The model we see coming out of foundations is a model where some content producer creates its content and sends it out into the world with a great act of charity, and the world sits and receives those open resources that rain down upon them. The other model is more sustainable, where it is community based or driven. The community is part and parcel of the process, and OER is the consequence of doing other activities that creates, almost if you will, a chapter of learning materials and open resources, in the process of doing other work. Like if it’s physics, just in the course of doing teaching, you develop resources, and these resources could be open educational resources. Something like that… you can’t depend on foundations for it to work. If we’re going to have sustainable open educational resources, it’s going to have become people and groups sharing for themselves.

So then are you suggesting that, instead of approaching it as an institution-wide type of policy of OER or open courseware we should just focus on the local–the cultural and different local, academic and open access groups, etc., for them to each develop their own resources?

Yeah, and with concern to the initiatives that get funding, I would focus much more on tools and processes that enable development of resources rather than the production of the resources themselves.

I think that’s all the questions I have for now… thank you so much for doing this.

Oh, you’re welcome.

Almost one year ago we launched a study of how people understand “noncommercial use.” The study, generously supported by The Andrew W. Mellon Foundation, included in-depth interviews and two waves of in-person and online focus groups and online questionnaires. The last included a random sample of U.S. (geographic restriction mandated by resource constraints) internet users and in an extended form, open questionnaires promoted via this blog (called “CC Friends & Family” in the report).

Today, we’re publishing the Defining Noncommercial study report and raw data, released under a CC Attribution license and CC0 public domain waiver respectively — yes, this report on “noncommercial” may unambiguously be used for commercial purposes. Also see today’s press release.

The study was conducted by Netpop Research under advisement from academics and a working group consisting of several CC jurisdiction project members as well as CC staff and board members.

Study findings

Creative Commons noncommercial licenses include a definition of commercial use, which precludes use of rights granted for commercial purposes:

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

The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition; 6% or creators and 4% of users replied “don’t know/not sure.” 74% and 77% of creators and users respectively think others share their definition and only 13% of creators and 11% of users wanted to change their definition after completing the questionnaire.

On a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial” creators and users (84.6 and 82.6, respectively) both rate uses in connection with online advertising generally as “commercial.” However, more specific use cases revealed that many interpretations are fact-specific. For example, creators and users gave the specific use case “not-for-profit organization uses work on its site, organization makes enough money from ads to cover hosting costs” ratings of 59.2 and 71.7, respectively.

On the same scale, creators and users (89.4 and 91.7, respectively) both rate uses in which money is made as being commercial, yet again those ratings are lower in use cases specifying cost recovery or use by not-for-profits. Finally, both groups rate “personal or private” use as noncommercial, though creators did so less strongly than users (24.3 and 16.0, respectively, on the same scale).

In open access polls, CC’s global network of “friends and family” rate some uses differently from the U.S. online population—although direct empirical comparisons may not be drawn from these data. For example, creators and users in these polls rate uses by not-for-profit organizations with advertisements as a means of cost recovery at 35.7 and 40.3, respectively — somewhat more noncommercial. They also rate “personal or private” use as strongly noncommercial—8.2 and 7.8, respectively — again on a scale of 1-100 where 1 is “definitely noncommercial” and 100 is “definitely commercial.”

See much more in the study report and draw your own conclusions from the data.

The below is drawn from the Section 4 of the report, titled “Next” — we urge you to read that section for more, including ideas for future research.

Import for Creative Commons noncommercial licenses

In the next years, possibly as soon as 2010, we expect to formally kick off a multi-year, international process for producing the next version (4.0) of the six main Creative Commons licenses.

This process will include examination of whether the NC term should be usefully modified as a part of that effort, or if the better approach might be to adopt a “best practices” approach of articulating the commercial/noncommercial distinction for certain creator or user communities apart from the licenses themselves. Whichever the result, this study has highlighted that in order to meet the expectations of licensors using CC NC licenses it will be important to avoid any modification of the term, however manifested, that makes a use widely agreed to be commercial — or only agreed to be noncommercial with low consensus — explicitly noncommercial. There is an analogue in our statement of intent for CC Attribution-ShareAlike, which provides assurances that we will not break the expectations of licensors whose intent is to release works under copyleft terms.

While the costs of license proliferation are already widely appreciated and resisted by many, the study weighs against any lingering temptation to offer multiple flavors of NC licenses due to strong agreement on the commerciality of certain use cases that, in the past, may have been considered by some to be good candidates for splitting off into specialized versions of the NC term, such as online advertising. For even in those cases where strong agreement may appear to exist upon initial inquiry, such as with online advertising, nuances and sometimes strong differences of opinion are immediately revealed when more specific use cases are tested and facts presented — such as those involving cost recovery or support of nonprofit organizations.

The study results also advise against any concerted effort by CC to attempt appeasing all license users, all the time — study participants are divided over the value of more or fewer specific “use cases” to delineate the commercial/noncommercial divide, some see the lack of specific uses as a strength and others as a weakness, and many others still disagree with the notion that a single definition of noncommercial use could be workable. Thus is the challenge, and opportunity, of public license stewards.

Aside from decisions about the NC licenses themselves, we will be looking back to the study as we update explanations of noncommercial licensing on our license deeds, license chooser, and other materials. Your ideas and feedback are most welcome (see below).

Creative Commons recommendations on using noncommercial licenses

Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term. The study hints at some of the potential reasons for this state of affairs, including that users are in some cases more conservative in their interpretation of what is noncommercial than are creators and that in some cases creators who earn more money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is noncommercial than are those who earn less.

While it would take a more focused and exhaustive study to conclude that these seemingly fortunate attitudinal differences are correct, strong, and global, they do hint at rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses — licensors should expect some uses of their works that would not meet the most stringently conservative definition of noncommercial, and licensees who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain) or ask the licensor for specific permission (interestingly about half of respondents to the “CC Friends & Family” questionnaire who had released works under a NC license indicated that they had been contacted for specific permission). Note that this rule of thumb has an analogue in network protocol design and implementation known as the robustness principle or Postel’s Law: “Be conservative in what you do; be liberal in what you accept from others.”

One way to think about Creative Commons generally is of providing tools to prevent the failed sharing that results from relying on copyrights’ defaulting to “all rights reserved” — uses that you would allow but that will not occur because you haven’t authorized them (maybe haven’t even thought of them) and the costs of finding you and getting authorization are too high for the intended use (or maybe you’re dead and even scholarly use of your works is suppressed by your estate). This sounds dry, but think about the anti-network effects of failed sharing at the level of a society, and the costs are large indeed. Some have realized that too much use of NC licensing suppresses uses that a licensor who wants to share may wish to allow, at a cost to NC licensors and licensees and a greater cost to communities and the broader free culture movement — failed sharing, though at a much smaller scale than the failed sharing engendered by default copyright. The Definition of Free Cultural Works website includes an article summarizing reasons to avoid NC licenses (and use a free license such as CC BY or CC BY-SA). If you’re concerned about the costs of NC licensing to yourself, the free culture movement, or society at large, review the arguments and consider “dropping -NC” from your license.

The potential negative impact and corresponding lack of use of noncommercial licensing differs across fields. For example, noncommercial licenses do not exist at all in the free and open source software world (note that CC recommends using a free and open source software license for software). Science and education are two large fields in which we believe that liberal licensing or the public domain are most appropriate. Unsurprisingly Wikipedia, with strong relationships with the free software, open access (scientific publishing), and open education movements, mandates liberal licensing, and many other massively collaborative projects are following.

However, compelling use cases for NC licensing remain — most obviously when an existing significant revenue stream from a work would be compromised by release under liberal terms. Giving your audience legal certainty that they won’t be prosecuted for doing what comes naturally from using digital networks — copying and remixing for no commercial gain or monetary exchange — while exploring the sharing economy and still protecting existing business — these are great reasons to start or continue releasing works under a NC license. It is little surprise that major music and book publishers’ use of CC licensing thus far has almost exclusively been of the NC variety.

How to participate in the discussion

There are a variety of ways you can participate in discussion of this study, the future of CC NC licenses and accompanying material, and future research on this and other topics related to voluntary sharing:

• Leave a comment on this blog post.
• Add to the study’s Talk page on the wiki.
• Discuss on the CC Forum or cc-community mailing list.
• Subscribe to the very low volume cc-licenses mailing list to be alerted when the 4.0 process commences.
• Join the commons-research list to connect with researchers studying free culture topics.
• Send a comment to noncommercial@creativecommons.org

Thanks to everyone who has contributed in any way to this work!

We’ll be publishing preliminary data (note: free text answers will be removed for privacy) and reports from the first round after this second questionnaire is closed — as well as some thoughts from CC on noncommercial licensing that won’t be any news to anyone who has followed really closely this blog, the initiatives of our science and education programs, and our CEO Joi Ito’s speeches. Many thanks to everyone who has asked about study results so far. We’re getting information out as quickly as possible, given how busy we are, and not wanting to interfere with this round of data collection. Of course as mentioned previously a full report on the entire study will be available in July.

To whet your appetite (and hopefully encourage your participation in the current questionnaire), we’re releasing preliminary slides (.pdf) reporting on interesting data gathered in the first round that won’t influence the current round — on the profiles and activities of a random panel of U.S. content creators and those of “CC Friends & Familiy”, i.e., people who took the first questionnaire as publicized from the CC website — a self-explanatory slide from that set is to the right, as well as a list of questions asked in the first round (.ods), as some of you have requested.

Please contribute to this research — take the questionnaire on noncommercial use for users — and spread the word. You have through May 5!

Update: The questionnaire closes 6PM Pacific on May 5. That’s 01:00 GMT on May 6.

During the first phase of the study, which took place last fall, we focused on talking with and surveying creators, using a questionnaire that was fielded to a sample of US-based content creators, and also made available (in an expanded version) to anyone interested. See 1, 2, 3.

Now we want to hear about noncommercial use from the user’s perspective — recognizing of course that the creator/user distinction is itself worthy of study! Whether you consider yourself a member of the Creative Commons community, or are interested more generally in copyright, we hope you will respond. While answering all the questions can take a while, particularly if you have a lot to say, many people who participated last time found it an interesting and useful experience.

Note that we could not incorporate as many suggestions from the previous questionnaire (see comments on posts linked above) as we would have liked due to the structure of the study — we want to be able to compare data from the two phases of research, and to be able to do that, we have to retain the wording of certain concepts and questions.

While to our knowledge this is the first empirical research project to tackle understanding how people define “noncommercial use”, we hope it is only the first of many efforts to explore the many dimensions of the subject. We will release the raw empirical data collected and some early reports from the first (creator) questionnaire next week, and will release a report on the full study and all data this summer. We hope others will be able to mine and build on this data.

If you’ve read this far, we know you have an opinion, and we hope you understand that we’re trying to provide a way for you to share that opinion. What are your views? Please help us make the data set as robust as possible! Take the questionnaire (allow 15-25 minutes), and help us tell others about it.

Questions about the study or this poll may be sent to noncommercial@creativecommons.org.

… a few graphs and a link back to our site isn’t a Creative Commons issue, but a fair use issue, and they would probably win on that one.

Today, however, Seward posted a piece on how CC’s NonCommercial license plays into the case. Featuring an interview with David Ardia of The Citizen Media Law Project at Harvard’s Berkman center, Seward suggests that the issues CC is currently investigating surrounding NonCommercial complicate the case.

We respectfully disagree.

Put simply, we do not believe that CC licenses, or our research on the definition of NonCommercial are relevant to Gatehouse’s complaint. The real debate is about fair use — just as Howard Owens pointed out in his e-mail to other Gatehouse staff. Creative Commons licenses do not prohibit fair uses of CC licensed content. This means that a NonCommercially licensed work (such as Gatehouse’s) can be used commercially so long as the use is fair.

Is The NY Times Co. using Gatehouse’s content fairly by linking to it using snippits and headlines? We’ll leave that up to the courts to decide, but if the famous Perfect 10 v. Google Inc. case is any indicator, condensing and linking content by third parties has been upheld as a fair use in court already. There are obviously differences between the Perfect 10 case and this one, but if the Gatehouse claim were upheld, it would do far more damage to fair use than Creative Commons ever could.

The EFF reports that the trial is set to begin on Monday. Watch their page dedicated to the case for further developments.

UPDATE: The suit has been settled, download the joint statement here. Also, it should be noted (as Gatehouse counsel has pointed out below), that Howard Owen’s original e-mail was not in fact referencing the NYTimes’ usage of Gatehouse CC’d content, but another party’s use of it.

We hope to connect with individuals and organizations from a variety of communities and industries, using a variety of content, in many different media. We seek insight and experience, not any endorsement of Creative Commons, its licenses, or any particular perspective.

We are currently scheduling a limited number of in-person focus groups, to be held in New York City, on Thursday, February 12, and San Francisco, on Tuesday, February 17. In order to get input from persons who live outside these regions, we are also conducting a limited number of online bulletin board type focus groups, which will take place over the course of three days, from Wednesday, February 18 through Friday, February 20. The time commitment for both the in-person and online focus groups is approximately two hours. Please note and understand that all groups, including the online focus groups, will be conducted in English. Unfortunately, we are not able to cover any travel or other expenses you may have in connection with participating.

If you are interested in participating in one of these focus groups, please fill out a questionnaire, which will explain what we plan to do with the data we collect, and will also ask you for some basic background information.

There are a limited number of spaces in each focus group. Please understand that we may not be able to respond individually to everyone who fills out the questionnaire, but if you are selected to participate, we will contact you as soon as possible to confirm your participation.

Thank you for your interest and help with this study.

Highlights included the CC Network, progress with the Free Software Foundation with respect to CC and the GFDL, CC0, integration with additional tools such as Picasa, the “Defining Noncommercial” study, partnership with the Eurasian Foundation, the fall fund-raising campaign, website updates, updates from Science Commons and ccLearn and the launch of four new jurisdictions – Romania, Hong Kong, Guatemala and Singapore.

See our June 2008 board meeting summary, or for more excitement, video of the Berkman/CC event from the night before the December board meeting. Video from the CC tech summit of the same day will be up very shortly.

Full disclosure: taking the questionnaire requires a significant investment of time — 15 to 25 minutes, and it isn’t an “easy” questionnaire — you’ll have to think. Unfortunately the meaning of “NonCommercial”, or at least people’s understanding of the term, is a nuanced issue (we’ll see what the results actually say about that, after analysis), requiring nuanced, even difficult questions to tease out the sub-issues. So a huge thanks to those who have participated, and thanks in advance to those who will. If you’re ready, go on and take the questionnaire.

For a bit of further background, see our previous post on the questionnaire.

Thank you!