Once again, the folks at USU’s COSL group put on a fantastic conference last week, one that I will be digesting for some time. Mia Garlick, Creative Commons’ General Counsel lead things off with a great talk about the impact (or non-impact) of the non-commercial clause on open educational resources, making a number of interesting points. She pointed out that the NC clause really wasn’t the sticking point between CC licensed materials and Wikipedia, one of the oft-cited examples. The licenses have other incompatibilities that prevent remixability.
I was most interested in her explanation of what non-commercial really means, which reinforces what I’ve understood previously: it essentially says that if you’re not sure your use is non-commercial, you really ought to ask. Many people object to this situation, saying it’s little better than full copyright if you are going to be imposing this level of transaction cost on any use that might potentially be considered commercial, but I don’t agree. I think over time, sites or groups like the Consortium can build list of affirmative statements of acceptable use, clearing an increasing number of use cases from transaction costs while still retaining a measure of control over how materials get used.
For instance, on tOFP, I specifically note that use at non-profit educational institutions that charge tuition is acceptable. It’s in the interest of the materials owner (in this case me) to keep the transaction costs down on those uses I’m not concerned with. I don’t want every instructor looking to use the materials in a class to contact me—it is a drain on my time, since I’ll always say yes. But I do want someone working for a for-profit writing workshop to contact me before using the materials. I may approve the use, but I want to have a look at how it’s going to be used first. As I come across other clear areas where I can make a blanket statement on the site about acceptable use, I’ll continue to include them.
The most compelling argument I’ve heard in the whole discussion is that the NC clause limits the possibilities for redistributing the materials offline in developing regions. Companies looking to distribute educational materials on CD for instance need to at least recover production and operating costs, and the NC clause might prohibit this. But again, it comes down to simply asking. I haven’t met anyone producing OER that feels that if the materials were distributed in Sub-Saharan Africa on CD, they distributor shouldn’t be able to recover costs. I do know of some who want to review potential distributors and have safeguards in place to ensure the materials get to end users at cost, however, and there are I’m sure some distributors I wouldn’t be comfortable with.
Are the transaction costs too high in this scenario? Perhaps, but that may be where umbrella organizations such as the OCW Consortium can play a role. With one entity representing large chunks of content, the amount of communication and deliberation can be significantly reduced, and institutions sharing content can pool oversight resources. There are certainly challenges around the NC clause, but it doesn’t yet appear to be the poison in the well that some seem to suggest.