Over the last 24 hours there’s been a short Twitter thread about whether or not materials released under a CC license with the NC condition can be used in a college classroom safely.

Hey #OER gurus, rec’d a question about #CreativeCommons BY-NC license & trepidation re using NC stuff specifically in publicly-funded colleges & universities. Safe to use, correct? Any info/links wd be loved! @thatpsychprof @opencontent @actualham @BCOpenText @eCampusOntario ??

— Stella Maris Bastone (@StellaBastone) February 15, 2019

The standard answer here, is “Of course! Using NC-licensed material in a college classroom is totally safe!” The problem is, that answer is wrong.

There’s only one person whose interpretation of NC matters, and it’s not yours. And it’s not mine. And it’s not Creative Commons. It’s the LICENSOR whose opinion counts. If that person looks at your use of their material and believes it violates the NC condition, then things start to happen.

If the licensor believes your use violates the NC condition, they are the person who will send you an informal letter politely asking you to stop. They’re the person who will direct a lawyer to send you a formal cease and desist letter asking you to stop. They’re the person who will take you to court if you fail to comply with their wishes.

Now, you may be wondering, “would licensors ever actually think my use of their NC-licensed content in a university classroom constitutes a commercial use?” Actually, we have data on that.

Creative Commons conducted a large international study with funding from Andrew W. Mellon Foundation. The final report, titled Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” asks respondents to address this question specifically. Here I reproduce Figure 15 from the report (p. 62).

Figure 15: Ratings of Commercial Use by Creators and Users: Scenarios Related to Uses by Organization

As you can see in the second prompt up from the bottom, both users and creators put “Use for course materials by a tuition-based school” closer to “Definitely a Commercial Use” than they do to “Definitely a NONcommercial Use.” Quoting from the report (p. 63):

The only ratings for use by an organization that are seen as more noncommercial than commercial are specific to a use that suggests no money is exchanged: if a school that does not charge tuition uses a work in its course materials then both creators and users rate the use noncommercial, especially creators, although consensus for both groups is low. By contrast, if a school charges tuition then both groups increase their ratings, and creators do so significantly (from 33.5 to 56.3, as compared to a rise from 44.0 to 57.4 for users). Note that the profit status of the school was not specified in these two uses.

You may protest, “But those data are a decade old! That would never happen today!” But you’d be wrong. Here’s an example from just a few months back:

Dear academics: You cannot use my material for courses where students pay a fee to attend or where you are paid to teach it, as these are commercial transactions. In addition, you must publish anything you use of mine under the same license I use: https://t.co/IePdUPtzu0 pic.twitter.com/5d8hBNrEW0

— Harold Jarche (@hjarche) September 15, 2018

and

Dear academics: If you wish to use my material, like https://t.co/nvVyjWCVHJ for commercial purposes we can discuss an appropriate fee for a separate license. Or just link to original article pic.twitter.com/Xl73yrGABD

— Harold Jarche (@hjarche) September 15, 2018

Conclusion

In summary, the answer to the question “Is it ok to use NC-licensed material in my university course?” is not “of course!” The answer is “What’s your level of risk tolerance?” How would you feel if, after going to the time and effort of redesigning your course around those NC-licensed materials, you received a letter from the licensor asking you to remove all those materials from your course? How much time, money, and effort are you (or your institution) willing to spend defending your use of NC-licensed materials in court? Et cetera. True, the odds of any of that happening are pretty low, but…

The most important thing to understand about reusing NC-licensed material is that it doesn’t matter what you or I think NC means. The only person whose opinion matters is the LICENSOR.