Why Not NC (Non Commercial)

Sharing clearly: When creating and sharing educational content, one of the first things that author's (and their sponsors and funders) must think about are the circumstances under which others can use their work. I work with an open education project, Connexions (cnx.org), that chose one of the most liberal of the Creative Commons licenses, the Attribution only license (CC-BY). The Attribution license requires anyone redistributing content to give credit to the content's authors. Creative Commons human readable version of the license explains the terms clearly and succinctly. Connexions thinks of itself as like Type O blood, the universal donor. While proper attribution is required, almost anything else goes. Take the content and adapt it, translate it, transform it, improve upon it (or not!), package it, market it, sell it, sell ancillary content and services based on the content, etc.

The Non-Commercial Choice: Quite a lot of freely available educational content, however, is licensed with a non-commercial restriction, the Creative Commons NC license being one of the most popular. The restriction is quite natural and content producers gravitate toward it from a basic sense of fairness. If I put a lot of effort into creating and sharing free content, it is natural to think that if someone else makes money off of that content, then some of that money should come back to me.

Why not? I find three compelling reasons to recommend that philanthropic foundations, national science and education agencies, education organizations, and individuals reject the non-commercial restriction for Open Education Resources (OER), if their goal is to accelerate human development through access to high-quality education.

• One of the reasons is a positive reason. Commercial entities bring resources and sustainability to open content. 
• Two of the reasons are negative. It is impractical to find and negotiate with the creators of most content that is available under the non-commercial restriction. 
• Finally, the definition of commercial versus non-commercial is undefined, and I would argue that it is likely to remain murky indefinitley. 

First, the positive: Commercial enterprises can market, package, and support open educational resources (OER), in a way that most of us sharing content cannot or aren't interested in doing. Foundations and agencies fund the creation of OER, but, typically, not the distribution and long-term support of OER. The OER movement is still fairly young, but can look to open source software for guidance here. Most of the popular and successful open source software use licenses that do not restrict commercial use. Large companies like IBM, Sun Microsystems (now Oracle), Mozilla, and Google have been instrumental in supporting open source operating systems, web services (ex. Apache) (you are probably relying on one right now while you read this), and word processing software. These companies support open-source software, because they use it themselves. They use the software because of the quality and continuous improvement. In addition to the support of companies that use the software, Red Hat, Canonical, and others specifically focus on selling services to support open source software. Now we certainly don't yet have significant commercial support for the OER movement yet, but the commercial restriction forecloses this positive opportunity.
 
Secondly, the negative: Finding and negotiating with OER producers is expensive and often impossible. Authors share their work but may or may not say how to get in touch with them. Even when they do provide contact information they may move, lose interest, or even pass away. One of the clearest and most entertaining illustrations of the complexities and pitfalls in rights negotiation is the comic, Bound by Law, by the Duke Law "Center for the Study of the Public Domain". Read about how the classic documentary, "Eyes on the Prize", was pulled from circulation because its music rights expired.  The point is not that everything should be shared freely, but that if our purpose is specifically to create and spread education widely, the non-commercial restriction adds significant drag.

Thirdly, the issue that I find most troubling:  The Non-commercial restriction is hard to define and it seems unlikely to get settled any time soon. Some of the trickier issues that I have seen discussed are whether ad-supported sites can reuse non-commercial work (mostly, but the details may be important), exactly what sorts of costs can be recouped without being commercial (it depends), and whether charging for related ancillary services would be allowed (probably not, but it depends, because existing educational exceptions would apply). Take a look at this long list of situations by Evan Podromou, for instance, and see whether you could make an easy call for each of them.

The history of copyright and copyright legislation makes it seem unlikely to me that the non-commercial distinction will be settled quickly or ever. In the U.S. alone, Congress has enacted unbelievably arcane and specific rules in the Copyright Act to settle just these sorts of issues about what is commercial and non-commercial. Take a look at section 5 (B) on this page of the United States Copyright Code, at the detailed wrangling over when performances are public, using square feet calculations (exclusive of parking), speaker number and power, and screen size. This is followed by some sort of specific allowance for the government for annual horticultural and agricultural events. Huh?

Notes:

• I chair the Connexions Consortium Technology Committee and my fellowship with the Shuttleworth Foundation is helping to make Connexions easier to publish to and work with.
• Creative Commons points to quite a bit of further reading about the NC restriction.