Debate Wrap-Up


To date we have heard from a variety of organizations urging that developers of OERs adopt a commercial-friendly license. We have not heard so much from individuals (except perhaps those trying to figure out how to post a response to this forum).

The vast majority of individuals do not want to commercialize their educational resources. Most people are happy just posting articles to their blog sites or uploading photos to Flikr or Picasa. Commercialization gets them into a world of licenses and royalties and lawyers. Most people can do without that sort of grief.

When asked, the majority of people want to apply a non-commercial license to their work. On Flickr, for example, three times more Creative Commons licensed photos employ the ‘non-commercial' clause than some commercial-friendly license. (Flickr, 2011) Surveys of academics, such as the Oak Law Project survey, show a similar trend, a strong and consistent preference for non-commercial reuse of academic content. (Austin, David, & Heffernan, 2008) Major OER initiatives, such as MIT's OpenCourseWare, are licensed using the non-commercial clause. (MIT, 2011)

Yes, if you ask a lawyer (or if a lawyer asks you (Creative Commons, 2008)) then the term ‘non-commercial' may appear confusing. Ask a lawyer whether the sky is blue and you will be asked for a definition of ‘blue' and after the argument agreeing that you cannot distinguish it from ‘green' or ‘grue'. (Goodman, 1965) But there is a sense of non-commercial that is intuitively obvious, a sense that I have developed through these three contributions, a sense based on the use of a resource, and specifically, a use that blocks access to that resource.

When you grant access to a resource only on condition of some sort of payment, whether in direct cash payment, or in terms of services or endeavours, or agreement to be subject to advertising and other messaging, then you are blocking access to the resource. And there is a non-trivial mass of people in the world who do not want access to their worked blocked. They want their work to circulate freely. They want to share their work. They want to provide access to knowledge and information.

In his guest comment, Ahrash Bissell stated that the "non-commercial term is a hedge on openness, preventing the emergence of a truly global learning commons and viable sustainability strategies." These two claims form the core of opposition to the non-commercial clause. But neither claim is rooted in fact, and in the case of both, the opposite is true.

It is a hedge on openness, not when you declare that the resources are intended for non-commercial use, but rather, when you attach a price-tag to putatively ‘open' resources. People understand a Creative Commons license, and quite rightly so, as meaning that they do not have to pay for the use of the resource. The existence of a price-tag is akin to the existence of some stranger walking into your town and declaring that he owns the air, and that you must pay.

It prevents the emergence of a global learning commons, not when you ensure that all resources are freely and openly available, but when you lock them inside a fence and demand that all comers pay a fee for access. The barriers of commerce – not merely the financial cost, but the commercial overhead of contracts and agreements, licensing and payments, enforcement mechanisms and more – are barriers to a global learning commons. Those agitating for commercial use of open educational resources desire something quite different, a global learning marketplace.

There may indeed be a day when we can entrust access to learning to the marketplace, but in a world where the market finds it tolerable to render impoverished a full third of humanity, that day is not yet today. The market serves only those with means, and provides nothing to those without means, and yet it is those without means who have the greatest need for learning (amongst other needs, many even more pressing, that the marketplace also fails to provide).

David Wiley argues that the non-commercial clause is no hedge against the mechanisms of conversion and enclosure I describe in my previous post. He writes, "this risk is best mitigated by education and public awareness, not the application of the NC clause." How ironic that those most in need of "education and public awareness" are those least able to afford it. Yes, you can learn how to avoid paying if you are willing to pay to learn how to avoid paying. That is why the rich continue to avoid paying, and the poor continue to pay (the same logic applies in income tax law, where deductions are available to help the poor, but are accessible only to those able to afford tax lawyers).

But in fact, a non-commercial clause, where ‘commercial' means something like ‘a use of a resource that blocks access to that resource', is an effective barrier against the harms caused conversion and enclosure. Interpreted thus, the non-commercial clause says, in effect, that you cannot convert open content into private property, and that you cannot thereby enforce rights of ownership, such as the blocking of access, over it. The resource remains free, a subject of public trust, not private ownership.

There is a place for private ownership, a place for marketplaces, and a place for commercial educational resources, both open and otherwise. But any economy fails, including an educational economy, that consists solely of the commercial. There must be a space for any person, and for all persons, to perform some deed, create some product, or teach some knowledge, for the common good, not subject to by trade and other commercial considerations.

The exercise of our creative arts in this public space is the very foundation of freedom, and the suggestion that these must be bought and sold in order to be free is the deepest misunderstanding of freedom of them all.

Austin, A., David, N., & Heffernan, M. (2008). Academic Authorship, Publishing Agreements, and Open Access: Survey Results. Brisbane: Queensland University of Technology.

Creative Commons. (2008, November 25). Non-Commercial study questionnaire . Retrieved April 26, 2011, from Creative Commons: https://creativecommons.org/weblog/entry/11045

Flickr. (2011). Creative Commons. Retrieved April 26, 2011, from Flickr: http://www.flickr.com/creativecommons/

Goodman, N. (1965). Fact, Fiction and Forecast. Indianapolis: Bobbs-Merrill.
MIT. (2011). Privacy and Terms of Use. Retrieved April 26, 2011, from OpenCourseWare: http://ocw.mit.edu/terms/


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