When to Use Noncommercial
Despite the popularity of the Noncommercial restriction in OER content licensing (as is shown in ccLearn’s data on license usage in OER projects in Figure 2, CC-BY-NC-SA is more widely used than either Share Alike or Attribution alone), the use of the Noncommercial restriction is heavily critiqued within the OER community. For instance, David Keats notes the interoperability issues of the Noncommercial restriction (Keats 76). Moreover, the language of the Noncommercial restriction in both the human readable deed and the legal code is unclear as to whether or not noncommercial applies to the character of the use (e.g., selling the content for profit) or the entity using the content (e.g., a commercial organization vs. an individual or non-profit entity) ( Centre for Educational Research and Information 80-82; Lowe). In 2009, Creative Commons published a study that shows that creators and users of Creative Commons Noncommercial licensed content interpret noncommercial in somewhat different ways (“Defining Noncommercial”).
Given these potential problems with using the Noncommercial clause, educators should consider carefully whether or not Share Alike alone could provide sufficient protection from enclosure. While Share Alike prevents commercial interests from using copyright to take ownership of the text in the way allowed via Attribution, Stephen Downes uses the example of a company called Ominplex to show how a corporation can still create “barriers” through “cordoning” the content in pay-per-use subscription websites (“Open Content”). Even though users with access to Ominplex’s content may, in turn, repost it to the Internet for everyone to use, Downes explains that Ominplex could see the original content as a competitor and use various legal methods and marketing strategies to insure that educators and students never access the original text (“Open Content”).
While Downes’ hypothetical situation is possible, it seems, at best, a worst case scenario that does not outweigh having the right kind of commercial involvement. Using the Noncommercial clause simply because of fear of enclosure seems counter productive when coupled with Share Alike. The open source community has plenty of success stories where an ecology encouraging commercial development that has not been enclosed has resulted from copyleft-licensed software: Linux, Mozilla Firefox and Thunderbird, Gimp, OpenOffice, WordPress, and Drupal, to name a few. It is highly unlikely that any of the aforementioned projects would have developed past their initial infancy if commercial use was restricted; commercial investment of people and funds has been important to the evolution of these software applications.
That being said, there is a situation in which the Noncommercial restriction can help to sustain the education commons, when the Noncommercial restriction is used as a “non-competitive” clause. When OER projects intend to self-fund through production and commercial sales of open textbooks and are not using an open source style community-based model of development, the Noncommercial restriction can prevent competition from seizing the product and providing versions at a cheaper price.
For example, Flat World Knowledge (FWK), an open textbook company that provides textbook chapters for free in HTML via the browser, but sells PDF and print versions, uses the CC BY-NC-SA Plus license. Similarly, Writing Spaces: Readings on Writing, an open textbook project of which I am a co-editor, offers authors the choice to publish their essays either with CC-BY-NC-ND or CC-BY-NC-SA licenses. The Noncommercial clause is necessary so that Writing Spaces’ publisher, Parlor Press, has the rights to compile and sell print editions. By preventing others from making money off the sale of Writing Spaces’ texts, the editors and publisher hope that print versions of Writing Spaces’ essay collections can help fund the Writing Spaces project and help Parlor Press to continue to publish scholarly monographs and other academic book series. Without the Noncommercial clause, FWK would not be viable, and perhaps neither would Writing Spaces. Strategic use of the Noncommercial clause can, in some circumstances, assist in continual development of OER.
