Reconsidering the NonCommercial Clause in CC

Maybe we should reconsider the default license that we wrote for the CTL and replace it with a By-SA license. One of the moral dilemmas in the use of the CC NC is that the definition of NC is nebulous and ambiguous and one of the things that it really limits is the compatibility with other CC licenses. It severely limits the shareability among resources that are “open” but are not really “open” because of license compatibility (Mackintosh, 2006).

In addition, the same license can have differing meanings. Wiley (2007) “CC [best practices guidelines] and MIT OCW have diametrically opposed interpretations of the meaning of the NC clause of CC’s own licenses.” In reflection on the articles I read about the NC clause, there seems to be a good reason to not use it because it really does prevent the combining of resources especially in situations where they are non-compatible licenses. This also goes against the idea of OpenSource Free Software, which was created to openly share with anyone and the whole worked to make it better, whether commercial or non-commercial (Hill, 2005).

Wayne Mackintosh in response to Wiley's (2006) article regarding the NC clause stated “You may be restricting useful services that would aid the distribution of free content to people who need it most. For example, the NC restriction would not legally permit local community institutions to package print versions of an online OER for resale on a cost recovery basis for the printing and repackaging. The NC restriction would seriously limit the scaleability of distribution channels that cannot be replicated or afforded by public education institutions.” In this way we would be limiting the good that can be done with open content just by the license that is placed on it.

Wiley (2006)said “these additional steps [of trying to convince a licensor to change a license or to grant permission for the work to be used] significantly increase the transaction costs associated with reusing content” and this is part of the difficulties that arise in sustainability.

Möller (2005-2007) in his article, The Case of Free Use, noted “Indeed, to make a substantial profit with your work, a company will have to provide added value beyond what is available for free. An -NC license stops any such attempt to add value; this may be the author's intent...Commercial use can be highly mutually beneficial where it does occur. The Share-Alike principle, while not applicable to monetary benefits, does protect the content from abusive exploitation without forbidding experiments. These experiments, however, are essential to build a true, innovative economy around free content. Especially when dealing with collaborative works, -NC makes such commercial experiments practically impossible, as every single contributor would have to give explicit permission...Prohibiting commercial use except by special permission, on the other hand, puts you on the fringes of the free content movement, where the beer is free, but the philosophy is shallow. You lose much of the potential for your work to be improved, combined, aggregated and shared by those who believe in unrestricted freedom of use. You exchange the opportunity to be part of a dramatic shift in the ideology of ideas for a vague sense of security. At the same time, you give up much of the opportunity to make money the old-fashioned way by making the content in question perpetually available for free.”

The articles suggested that the use of the NC clause really should be about the intent for which the content is used, but unfortunately would be difficult to be upheld in a court of law (Wiley, 2006) but the clause is at the same time a part of what content providers wish to be used. In the case of the CTL, I can see why they would like to have an NC clause, but I question if it is making a limitation on the good that the OERs we provide can do if others are able to use more openly and/or contribute – especially if users “refrain from using NC material” (anders, 2007) strictly because of the NC clause. I am leaning a lot more on the side of BAN THE NC (in most cases) because it really doesn't help the cause of openness as we think it may have when CC was organized. Maybe NC just needs to be redefined, but we need to address the good that this clause actually does. This clause by itself will probably be one of our biggest challenges as we begin to pull resources together for the Open High School project.