Prominent universities are using a nonfree license for their digital educational works. That is bad already, but even worse, the license they are using has a serious inherent problem.
When a work is made for doing a practical job, the users must have control over the job, so they need to have control over the work. This applies to software, and to educational works too. For the users to have this control, they need certain freedoms (see gnu.org), and we say the work is “free” (or “libre”, to emphasize we are not talking about price). For works that might be used in commercial contexts, the requisite freedom includes commercial use, redistribution and modification.
Creative Commons publishes six principal licenses. Two are free/libre licenses: the Sharealike license CC-BY-SA is a free/libre license with copyleft, and the Attribution license (CC-BY) is a free/libre license without copyleft. The other four are nonfree, either because they don’t allow modification (ND, Noderivs) or because they don’t allow commercial use (NC, Nocommercial).
In my view, nonfree licenses are ok for works of art/entertainment, or that present personal viewpoints (such as this article itself). Those works aren’t meant for doing a practical job, so the argument about the users’ control does not apply. Thus, I do not object if they are published with the CC-BY-NC-ND license, which allows only noncommercial redistribution of exact copies.
Use of this license for a work does not mean that you can’t possibly publish that work commercially or with modifications. The license doesn’t give permission for that, but you could ask the copyright holder for permission, perhaps offering a quid pro quo, and you might get it. It isn’t automatic, but it isn’t impossible.
However, two of the nonfree CC licenses lead to the creation of works that can’t in practice be published commercially, because there is no feasible way to ask for permission. These are CC-BY-NC and CC-BY-NC-SA, the two CC licenses that permit modification but not commercial use.
The problem arises because, with the Internet, people can easily (and lawfully) pile one noncommercial modification on another. Over decades this will result in works with contributions from hundreds or even thousands of people.
This is a larger quote than I usually use, but Richard Stallman has a very important point here. By attaching the NC (No Commercial) attribute to a Creative Commons license you preclude the possibility of a commercial use ever, even in the future because once the work has been modified a few times it will become too burdensome, if not down right impossible to track down all of the rights holders to get agreement on a commercial use of the work.
To be honest it never occurred to me that using the NC attribute could ever have such an effect. I saw it as a way to require someone who wanted to use a work commercially to come forward to the rights holder and ask specific permission for a commercial license. That remains true only so long as the work hasn’t been modified. Once the work is modified and shared as required by the use of the Share-Alike (SA) attribute then anyone wanting to make a commercial use of the work would need to trace back the chain of rights holders to get the necessary permissions.
In the educational world it is easy to imagine CC licensed works being modified and used over and over again as they pass through the hands of hundred or thousands of teachers and students. Getting permission for commercial use of work that has been authored by hundreds of people over a span of years would be pretty much impossible. As Stallman points out “[f]or works that might be used in commercial contexts, the requisite freedom includes commercial use, redistribution and modification.” Here this means that the NC attribute should not be used because it removes the freedom to make a commercial use of the work because even though commercial use is technically possible, it is practically impossible.
If the goal of creators of open education resources is to create free/libre resources that are available to all, to make education better and more widely available, then the NC attribute should be avoided in setting Creating Commons licenses for education works. Does this mean that someone could take a work and sell it rather than providing it for free? Yes it does, but it isn’t likely since it is hard to compete with free. Does it mean that someone could take a work, modify it, and sell it? Again yes, but then it is up to the market to decide if the modifications represent an added value that makes it worth more than the freely available version. No matter what I think having free/libre and open educational resources out weighs the need to lock them up in restrictive licensing.