Another Kick at the 'Free Content' Cat

From discussions on the WikiEducator mailing list:

Someone commented,
"MIT's OCW materials use the NC restriction and therefore do not qualify as free content under the free cultural works definition. The access may be open -- but they are certainly not free materials :-)"
I replied:

This is written as though it is a simple fait accompli. But there is a significant body of opinion (at least, to me) that says that materials may be 'free' and licensed as 'n on-commercial' -- and indeed, that when materials are used commercially (eg., sold) they are by definition *not* free.

I was asked, as a follow-up, by Leo Wong:
MIT OCW is something interesting for me coz they are doing some translation project here in Mainland China called OOPS , but don't know why they are translating the MIT "free content"

what do you think of the translation ? do you think it is a big of waste of time or just something they could invest the time doing something else ?

Still not sure I understand the meaning of NC , and why NC is not good for free content ?
My response:

I am aware of OOPS, I have met Luc Chu, who is based in Taipei, and I have been to visit them in Taiwan.

I think that the translation effort is well worth the time, as the OCW materials are high-quality materials, and the materials, which are made available free of charge, would be of benefit to the millions of people who speak Chinese who are studying those topics.

The OOPS project is a community-based project, where the materials are placed into a wiki and are translated by a community of volunteers.

To me, this is the essence of free content, and the model to be encouraged, since it is sustainable, and does not require a continual infusion of large amounts of money - public, private, or otherwise - to keep it progressing.

Just as an addendum, since you ask,
Still not sure I understand the meaning of NC , and why NC is not good for free content ?
This is a good example of why, in my view, the NC license is more 'free' for content.

Suppose OCW is licensed to allow commercial use. Some company comes along and spends a lot of money to translate the materials into Chinese. Then, in order to recover their investment, they sell the materials in China.

The result?

- this remains the only translation into Chinese, since people say there is 'no point' translating the materials a second time
- hence, for Chinese speakers, the *only* access to these materials is through purchase

I would add that if there is any danger of people producing free Chinese versions of the materials, such a company would have a significant incentive to block that effort. Such efforts are blocked in numerous ways:

- the company will 'lock down' the content it distributed (in., eg., proprietary formats, such as is used by the Kindle) so people can't simply copy it
- the company would raise doubts about the quality of the free translation
- the company would obtain exclusive distributorship of the material in Chinese markets, such as universities
- questions would be raised about the legality of the free translation
- if officials can be bribed, the people doing the free translation can be harassed or imprisoned
- technical requirements (such as standards compliance, or content registration, or digital rights enforcement) can be imposed on all content, which only the commercial company can afford

I could go on at length.

The end result is, if content is licensed under 'CC-BY-SA', the result is inevitably that the majority of people in the world must pay for access to that content. And that is not what I call 'free'.

Chris Harvey wrote:
I think he supports open access and perhaps open source and freebie software. Free software is a matter of freedom not price.

I am well aware of the distinction between 'free as in freedom' and 'free as in beer'. I support 'free as in freedom'.

My objection to commercial use is that it is a business model supported by denying access to resources. If a resource must be purchased before it may be used, then it is not free in either sense. A person does not have the freedom to use, modify, etc., something he or she must buy.

I appreciate that many of the other conditions of the free culture license - such as the use of non-proprietary media - serve to mitigate the excesses of commercial sales of open content. My belief is that the full set of such stipulations, crafted so as to close all loopholes, would be tantamount to the 'non-commercial' clause.


  1. Stephen, thanks for this post. I am a newbie at copyright, and find such discussions illuminating.

    I recall that some folks would prefer content were NOT licensed as CC ShareAlike-Attribution-NonCommercial because of the NonCommercial.

    They would rather it were just out there without the NC. As an educator, I specifically do NOT want my stuff out there for businesses to use unless they are going to give it away to others...I'd hate to have my work taken and then sold.

    Is the NC conversation you're having reflect that?

    With appreciation,

  2. The GNU Free Documentation License also answers the lock-in concern. What is your opinion on this?

  3. Stephen,
    the whole idea of a Share-Alike clause is to make sure that anything that Chinese hypothetical company did with the materials would be licensed under a similar license. Thus, everyone would benefit. And if the translation was not good enough, we would all be welcome to edit it and improve upon it.

    As far as I see it, although I would like all the educational content in the world to be free, education also involves (in most cases) human contact and people working on a process... I am happy to pay someone to teach me Hindi. If they in the process of their work take open resources, and improve them, to facilitate their own work, or to gain a good reputation in the field etc, then I get better Hindi teaching for my money, and everyone else in the world also benefit from improved resources.

    How does CC BY-SA differ from the GPL? Isn't the involvement of commercial companies one of the factors that has propelled Linux forwards? Probably more than half of the people working on Linux are paid by big companies, but the results of their work goes straight back to the commons. Why would this be different for educational resources?

    (Put aside that the NC tag is hugely problematic by itself, with nobody being able to define what it means or when you are allowed to use NC materials... is the determinant whether you are making money through the activity (MIT certainly charges a lot of tuition!!), or whether your organization is a non-profit/commercial company? Can you put ads on your website if you are posting NC materials? Could you print a DVD with all of MIT materials for people in Indonesia who don't have internet access and sell the DVD for a dollar each? No?)


  4. > I am happy to pay someone to teach me Hindi. If they in the process of their work take open resources, and improve them, to facilitate their own work

    If a person uses some open resources while they are teaching Hindi, that's fine.

    If the only way to access the resources is to pay someone to tech ou Hindi, that's not fine.

    People seem to thing that 'non-commercial' means 'completely untainted by any association with commercial activity'. That's an absurd definition.

    For me, the distinction is very simple and clear: if you make money by restricting access to the content, that's commercial use of the content. If access is not restricted, that's non-commercial use.

  5. Hi Stephen, I like that final distinction - however I don't think it is (or would be) clear to many. Our institution elected to not use the Non Commercial clause (or any content with such a clause) because it is open to interpretation, and needs to be policed.

    In your case though, perhaps the Non Commercial clause should be expressed exactly as you have put it here so as to minimise interpretations that contradict what you intend? So instead of CC NC it would be CC NRC (No Restrictions through Commercialisation). I think the SA still covers that though...

  6. Hiya Leigh, I'm not sure I would want to change what I call the NC condition, but your assessment is correct - it is essentially a requirement that there be no limitations through commercialization.

    I think that this will be something worth drawing out at more length some time in the future. The dominant (U.S.) perspective is that a use is 'commercial' if the user is a commercial entity. My response is that a use if commercial if the use is commercial - and since the only commercial use is to charge for access (hence creating a barrier) I oppose commercial use.

  7. Marc,

    In addition to the requirement that content be copied on open media, the GNU Free Documentation license specifies, "You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. However, you may accept compensation in exchange for copies."

    The conditions, therefore, are against technical forms of restrictions against copying, and not legal, methodological or business practices.

    For example, it would be entirely consistent with this license for a university to (a) only distribute copies to registered (tuition paying) students, and (b) as part of school policy (not the license) prohibit students from sharing their copies.

    Since business practice commonly seeks to establish such closed marketplaces through policy or law, I argue that the GNU FDL is insufficient.


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