Draft 2/Regional calls

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Contents

notes

Creative Commons held its second round of regional calls in August 2012. Like the affiliate consultations on draft 1, these conversations gave CC excellent targeted feeback from legal experts and others with in-depth knowledge of license use in a variety of areas, such as education, science, culture and data.

The following topics were covered in each regional call:

  1. Compatibility
  2. Scope of license
  3. Collection language
  4. Termination and cure period
  5. Data licensing and information mining
  6. Extended collective licensing arrangements
  7. Syncing
  8. Alternative dispute resolution (ADR)
  9. NonCommercial and NoDerivatives
  10. Undertakings by licensors with respect to rights in the work
  11. Other items raised (open discussion)


Participating Jurisdictions:

Africa: Cameroon, Ghana, Nigeria, South Africa, Tanzania, Uganda

Arab World: Algeria, Lebanon, Oman

Asia-Pacific: Australia, China Mainland, Hong Kong, Japan, Singapore

Europe: Czech Republic, France, Germany, Italy, Netherlands, Portugal, Ukraine

Latin America: Chile, Costa Rica, Guatemala, México, Perú

Important Note: The summaries provided below are provided for informational purposes only. These summaries are not necessarily complete, may not correctly or completely reflect the views of the participants, and must not be depended upon for legally accuracy or serve as legal advice.


Compatibility

Creative Commons is formally in negotiations with the Free Art License steward on two-way compatibility between BY-SA 4.0 and FAL 1.3, and with the Free Software Foundation on one-way compatibility from BY 4.0 and BY-SA 4.0 to GNU GPLv3. To achieve compatibility, we may need to make adjustments to the licenses, including changes that have not yet been proposed by either CC or the community. We hope to have a clear sense of what issues remain within the next few weeks. We would like to get a sense from our affiliates about how important compatibility is. We will, of course, update the lists with information as the process moves forward.

Q: How strongly do you feel about forging compatibility as described? Do you have concerns about or comments on our efforts to pursue compatibility?

Africa:

  • Compatibility is important
  • There are some concerns about the changes that might be required in CC licenses in order to be compatible with other licenses, particularly around cure periods


Arab World:

  • No specific comments


Asia-Pacific:

  • Compatibility is important, but separate from 4.0
  • Be careful about changes made to the CC licenses for the sake of compatibility
  • Don’t let CC get drawn into controversies that may surround the other licenses or license stewards
  • Be mindful of license issues that are related specifically to software
  • Compatibility would be useful so that people do not have to comply with the terms for two licenses
  • Recommend that CC and organizations with whom compatibility is forged that guidelines are produced about how licensees can fulfill the obligations of both licenses


Europe:

  • No specific comments


Latin America:

  • Compatibility is very important

Scope of license

Defining the scope of the rights being licensed has been one of the most challenging parts of drafting 4.0, given our goals of being clear about what rights are being licensed while at the same time accounting for rights closely related to copyright. There are two issues in play that bear on the draft under discussion. First, there are differences in how jurisdictions label or categorize rights that we want to be sure are licensed, which might be traditionally labeled “neighboring rights.” For example, in some jurisdictions, sui generis database rights are considered neighboring rights, and in other places they are not. CC wants to avoid a situation where rights are inadvertently omitted from coverage of the license that ought be licensed along with copyright. For this reason, CC adjusted the relevant definitions in the license to be slightly open-ended.

Second, CC is concerned that given the need for some flexibility in light of the foregoing, the express reservation of rights that had been present in 3.0 conflicts with, or could undermine, that design. We want to avoid a situation where, in reference to any express reservation, the license is determined not to cover a right simply because it was not specifically called out or was labeled differently. Thus, CC has removed the express reservation that was in draft #1.

Q: Are there other rights that ought to be specifically mentioned that are not in the definition of Licensed Rights? Is the definition sufficiently specific to avoid licensing rights we do not want to license but licensing all rights we want to? What other comments do you have on the scope of the license?

Africa:

  • A concern has been expressed that by mentioning some rights that are not universal, we legitimize those rights in countries that do not have them; however, this concern overstates CC’s influence
  • Current definition is good
  • Important that databases with sui generis database rights and licensed with CC licenses are also licensing the database rights as well as the copyrights
  • Suggestion to put bulk of information into definitions so rest of license reads easier


Arab World:

  • Current definition is good


Asia Pacific:

  • Some of the rights listed are part of copyright in certain countries, so listing them makes it look like the license is treating them separately, this could create confusion
  • Above may not be a problem now that everything is licensed [as opposed to some rights being licensed and some being waived, as in draft #1]
  • Suggest putting copyright and neighboring rights in same definition since they are treated the same by the license
  • Shouldn’t matter that different rights in the definition have different terms since the rights are treated the same
  • Be careful about legal underpinnings of the licenses; don’t let incorporating other rights cause confusion and undermine CC’s strong basis as a copyright license.


Europe:

  • Ideal would be for licenses to license all the rights held by Licensor
  • Licensors should identify rights they don’t hold


Latin America:

  • Current definition sounds good, but there are concerns that it might be confusing in places that don’t have the same juridical framework
  • Concerned about legitimizing some rights - like the sui generis database right - in countries where those rights don’t exist
  • Suggestion that non-copyright rights like SGDR could be covered with general language later in grant instead of included in a definition that is used in the grant language; maybe by adding general coverage language in Section 3 saying that the license does cover any similar rights including SGDR
  • Recommendation to not use WIPO language because it doesn’t add anything
  • Reminder that WIPO members are working to create more sui generis rights including broadcast and traditional knowledge
  • To different degrees, Peru and Ecuador (with express provisions in law), Mexico (with some arguments between scholars), and Colombia (with not express provision in the law, but systematic support in case law by the Constitutional Court and its copyright office too), provide exclusive rights on “any use of the work”, meaning they do not have a close list of exclusive rights, but an open one.
    • Peru, Ecuador and Colombia grant exclusive right on exportation (as an autonomous right, independently from distribution)
    • Peru grants also exclusive right to incorporate technological measures in a work
    • Colombia and Peru grant exclusive right on public lending of works
    • In brief, unlike in the U.S., where copyright act grants a closed list of exclusive rights, several countries grants an open list of exclusive rights
    • When you license only some of them, it is understood you don`t license those you don’t mention.
      • For instance, if a Colombia public library want to lend books license with CC it couldn't because the license does not allow for public lending.
      • Similarly, if someone wants to import works license with CC from Peru, he couldn’t because the license does not cover importation rights.
  • Adding that the license cover “any other exclusive right granted by law” sounds broad enough for handling these cases and similar others, and should be sufficient for preventing situations mentioned above


CC is also proposing removal of Section 2(b)(2) from draft #2. That provision was included to help alert licensees that others may hold rights in the work they are using. Upon further examination, we feel including this provision could be problematic. First, it is not operative, and that alone makes it a candidate for removal. More importantly, however, we are concerned it could be construed as some type of reservation of rights, which concerns us for the same reasons described previously.

Q: Are there any thoughts or comments on this change?

Africa

  • Must take into account the text of the license also
  • Agrees this educational language doesn’t belong in the license but perhaps in the deed
  • Suggestion to coin a new phrase for the copyright and related rights that are covered


Arab World

  • requesting licensors to draw attention to rights they don’t hold sounds like a good idea
  • Seems ok to allow partial licensing of rights in the work where licensor doesn’t hold all the rights
    • As an artist, seems good to have the option to say where you only have some of the rights in a work - to be able to CC license those rights even if not all the rights in a work
  • Concerns about how licensing of only some rights in a work will affect the community, especially with respect to platforms
  • Would be useful to have a standardized way to express which rights are licensed when people put licenses on works to which they do not have all the rights


Asia-Pacific

  • Japan is looking to add some new publishers rights on the look of a book; wondering if this could cause problems for the express reservation clause if it remains
  • Concerned about what happens with rights created after the license is released
  • Concerned about what happens with rights created after a licensor releases their work under a license
    • When a licensee receives a work with a CC license, can he expect that rights created/enacted after the CC license release are not covered?
    • Can he expect that those rights are covered as long as the licensor provided the work after the rights were created?
  • Highly encourage talking with UK experts on this matter given the Hargreaves report


Europe

  • Publicity rights reserved should only include third-party publicity rights
    • Licensing an image of yourself should included implied rights to use your image
  • Decision whether to include third-party publicity rights is a policy decision
  • Licenses can be either a perfect operational tool or an education tool that warns people to be aware of other rights
  • Preference for the more explicit language in draft 2
  • This is also relevant to what’s mentioned in the license deed


Latin America

  • Rightsholders have other rights that currently aren’t mentioned, like lending and exporting rights, which means CC licenses don’t cover all current uses, including online uses
    • Exporting rights have been enforced for software in Perú
  • In civil law countries, licenses need to explicitly express all rights granted, everything else is reserved
  • Licenses should explicitly grant all other rights, not reserve them
  • A general clause won’t work, need to be very careful with language
  • List rights as examples and try to cover all that exist

Collection language

This change was implemented in draft 1 and carried through to draft 2, but received little attention. We want to call this change to your attention and confirm that removal is not problematic.

In 3.0, the function of the definition of Collection is two-fold: first, to make clear that ShareAlike does not extend to separate works in the collection or the collection itself; and second, to confirm that the work in unmodified form can be included in a collection even in the ND licenses. We feel the license is unambiguous on these points. In light of that plus the confusion that the definition brings, we have removed collection. Note that we will make clear outside of the license that its removal does not change the scope of the license or the ShareAlike term. Also note the inclusion in the ShareAlike condition a statement for the avoidance of doubt that the ShareAlike term applies to adaptations only.

Q: Are there concerns about the removal of this definition? Is there a need for its inclusion in order for the license grant to work as intended?

Africa

  • Agree it’s a good idea to remove the definition


Arab World

  • No relevant requirements in Oman law, so definition not required for them


Asia

  • No specific comments


Europe

  • Collection is equivalent to work, so any rights over collection would cover work
  • Concern about removed of the word “transformed” from the definition of Adaptation
    • Big issue because there is a big difference and “transformation” is what is needed for adaptations


Latin America

  • No specific comments


Termination and automatic (limited) reinstatement upon cure

Since the beginning of the 4.0 process we have considered introducing a GPL or MPL-like reinstatement provision that would facilitate the ability of licensors who had violated the license to receive their rights back automatically upon cure of the violation. CC is planning to move forward with this proposal absent a problem from a compatibility perspective with the Free Art License.

Q: Does anyone have comments on this decision to proceed with a concrete proposal?

Africa

  • Reinstatement shouldn’t bar damages for past infringements
    • Time-limited cure period would not fully address this
  • Defining minor vs. major breaches could be very problematic
    • Having a distinction between them would create confusion like we already have around NC
  • Defining breaches based on term of the license that is breached may work well


Arab World

  • Majority of offenders will be innocent and happy to fix, so it’s a good idea


Asia Pacific

  • Concern that this language could be confusing and wouldn’t add much practically
  • Questions about enforcement procedure
    • Concerns that people might think CC will do the enforcing
  • Australia has lots of criminal provisions and some of the things allowed by CC licenses might fall under these provisions
    • Telling people they can cure a defect might mislead them and give them a false sense of security with respect to their criminal liabliity
  • China has similar issues to Australia
  • Added complexity would be bad, keep the current simple terms


Europe

  • Agnostic about this idea
  • It works well for GPL, but haven’t seen any circumstances where it’s needed with CC


Latin America

  • Strongly support the inclusion of a cure period because it makes us seem flexible, but unsure how to implement it.

Data licensing and information mining

Version 4.0 is intended for and expected to be used in connection with databases and data more than previous license versions, since we have chosen to license sui generis database rights and otherwise improve the license for use with data and databases. Some in the data community have raised the question of whether the license should specifically define data and text mining and/or include a specific permission that allows those activities. CC has not in the past specifically named categories or types of activities that are permitted or not, instead relying on whether permission for the activity is required based on the exclusive rights implicated. We are concerned that if the license specifically defines data and text mining, any definition could be read to exclude some types of activities that we want to enable through the licenses, assuming the use intended would not otherwise be permitted because of copyright and other rights that the license contemplates. And if we specifically grant permission to data or text mine the CC licensed work, users will feel they must comply with the license conditions as a matter of private contract rather than because exclusive rights are implicated when they may not be.

A second question relates to when the conditions of the license should be triggered in connection with data and text mining. As it currently operates, the license conditions are triggered when the use of the work (i.e., the database or text files or other material being “mined”) implicates an exclusive right under copyright or the other rights licensed. In particular, if an “adaptation” is created in connection with the use of the work, and it is shared, then attribution and ShareAlike (in the –SA licenses) are triggered.

Q: Are there opinions on whether the license should be specific about granting the permission to data and text mine? Or about the desirability of or risks associated with defining data and text mining specifically? Are there opinions on the suitability of the current triggers in the context of data and text mining? Should they perhaps be different from other types of uses, being mindful that any difference would complicate the license? Are there other considerations that are unique to this domain that we should be considering?

Africa

  • Request for examples of where sui generis database right has caused harm or where it’s been needed in the licenses
  • Suggestion to explain when database rights are triggered outside of the license rather than put complicated terms in the license itself
  • Current drafting is narrow enough
  • Current drafting is straightforward
  • Affiliates have seen data problems coming up at hackathons, especially when doing mashups that involve layering licenses
  • Reminder that trying to clarify can sometimes cause more problems than it solves
  • Suggestion to look to countries where they have been using open data for a long time
  • Look at what people are doing today with data and make sure our licenses won’t stop them from doing those things
  • OKF guidelines may helpful and good for now, but more is needed to create clarity around reusing data


Arab World

  • No specific comments


Asia-Pacific

  • No specific comments


Europe

  • Specific mention isn’t necessary
  • A specific mention might help with clarity, but this should be outside the license
  • In France, data and text mining would be covered by the current language in the license
  • Could be useful to put a warning on the chooser that NC and ND licenses might prevent the sharing of data
  • Sui generis database exceptions are very low in number, so mining will not be allowed unless explicitly licensed
  • It would be dangerous to add mining-specific language to the licenses; could lead to the same problems the Open Database License is facing
  • Already difficult to tell when a database is a work or a derivative work


Latin America

  • Mining is not a problem in Chile
  • Mining is a complex issue and probably does kick in for ShareAlike
  • Suggestion to not specify when Attribution and ShareAlike are triggered in the license language, because this might create more complication than it solves
  • Let the license operate as it currently does
  • Costa Rica is the same as Chile, but more people now believe they have copyright or equivalent rights over data
  • Cultural shift of people wanting to protect data; we don’t want to legitimize that cultural shift
  • Users might not be aware of changes that aren’t reflected in deeds, consider how we will communicate any changes


Extended collective licensing arrangements

Prior to the conclusion of the Draft 1 public comment period, an issue arose on the development list about these types of collecting societies. In some Nordic countries in particular, application of the CC license by non members may preclude non members of the society from collecting royalties they collect on their behalf. We solicited feedback from the CC Europe affiliates on the underlying rationale for this treatment and possible solutions, and share the results of that with those affiliates. The scope of the consultation was limited to the question of how we might adjust the license to eliminate or reduce the likelihood of that interpretations, and not the larger question of whether CC should shift policy and allow licensors to reserve the right to collect royalties for uses permitted even when they could be waived.

In our view, there is no effective way to address this issue in our licenses. The existing language is as clear as it can be that where the collection of those royalties cannot be waived, licensor reserves the right to collect, and there is nothing within the four corners of the license we can do absent a wholesale revisiting of our policy.

No question here as this is an update, but comments welcome.

Africa

  • CC South Africa plans to continue working directly with their collecting societies
    • There is a new collecting society in South Africa, which gives an opportunity to start a new system
  • Zimbabwe may have an extended collective licensing society soon
  • Most Eastern and Southern African countries seem to be moving in this direction
  • Workarounds with respect to collecting societies are definitely of interest to the African region


Arab World

  • No specific comments


Asia Pacific

  • No specific comments


Europe

  • No specific comments


Latin America

  • Inquiry as to if there are projects working with collecting societies outside of Europe


Syncing

The question of expanding ShareAlike has been resolved in favor of not expanding its reach beyond its current scope for reasons we’ve stated publicly, after input and support from you and others. The question of the synching clause in the definition of Adaptation has not been squarely addressed, however. We have heard two proposals relating to the synching provision. The first is to remove it altogether to simplify the license, primarily because there is no reason why the case of musical works should be special when other similar cases exist. The second is to expand the syncing provision so that it covers other analogous activities.

As to removal, CC does not intend to do so. We have committed to not shrink the reach of ShareAlike, and to the extent the existing clause requires SA even where there is no adaptation under applicable law, removal would reduce the scope. As for expanding, we think it is an equally problematic proposal and potentially expands SA in ways that has unintended consequences and will be disruptive to those who rely on its narrow scope. We also think expansion could result in some limitless number of analogous situations, and expanding SA further in those cases where no adaptation is made in particular is of concern. Therefore, we think the best option is to retain the existing synching provision as a legacy feature of the licenses.

How do you feel about the syncing provision? Do you agree or disagree with the proposal not to expand it further and not to remove it altogether?

Africa

  • No specific comments


Arab World

  • No specific comments


Asia Pacific

  • No specific comments


Europe

  • No specific comments


Latin America

  • No specific comments


Alternative Dispute Resolution (ADR)

We raised with affiliates previously that we were looking into the possibility of having some type of option for alternative dispute resolution in the license, at the option of licensor. We raised this previously because in one of the few remaining 3.0 ports – for intergovernmental organizations – CC has agreed in principle to including an ADR mechanism that would require disputes to be resolved in such a forum at the election of the licensor. The problem the IGOs have is the lack of any effective way to enforce their copyright, given that IGOs have cannot routinely avail themselves of national courts. After looking into it further, we have discovered several problems with implementing it more generally even though it may seem an attractive option.

First, we are concerned that tying ADR as a condition to use of the work runs into enforceability problems. There are many places including the European Union where the enforceability is seriously questioned, and we are not inclined to introduce a provision that could compromise enforceability of the licenses.

Second, we have not been able to discover any well-developed or widely-embraced ADR systems. Including a provision that licensors may naturally want to experiment with, without some indication there exists solid ADR alternatives seems ill-advised. We would want to know there were fair, reasonable processes, and clarity about application of copyright law to the licenses in those fora.

For these reasons, we are not inclined to pursue this further. It is always possible for licensors and licensees to mutually agree to ADR through a separate agreement, and nothing in our licenses preclude that from happening.

Does anyone have comments on where we are heading with ADR? Does anyone want to argue for including the provision in the licenses?

Africa

  • Leaving ADR to be handled outside of the license makes it the exception rather than the rule
  • Preference for ADR in South Africa because it’s cheaper, but if it’s not working in many parts of the world, then it shouldn’t be in an international license
  • Clarification that adding ADR provision could turn the license into a contract in some jurisdictions
  • ADR in Ghana is extremely difficult and expensive
  • ADR is viewed favorable in Nigeria
  • ADR is more effective in Tanzania, but that isn’t the case in all jurisdictions
  • Possibility of ADR can be explained outside of the licenses
  • Suggestion to add another tick box on the license chooser that allows people to add an ADR provision into the licenses
  • Suggestion to allow people to signal their desire to use ADR through some sort of guidelines
  • No problem in Uganda with having ADR as an option, but it should not be in the license text itself so that options remain open to licensors and licensees


Arab World

  • ADR would be very difficult to implement because the copyright laws are too different in different countries around the world


Asia Pacific

  • Better for parties to have a side ADR agreement outside of the licenses


Europe

  • No specific comments


Latin America

  • No specific comments

NonCommercial and NoDerivatives

We agreed to divide the NC discussion in two parts, with the first focused on definition of NC and the second addressing the various branding proposals for NC made by the community. We are now turning to the branding and related issues. CC published a blog post recently addressing a public call from Students for Free Culture to deprecate the NC and ND licenses because they are not free licenses. That blog post describes what our affiliates and community can expect from CC in regards to vetting proposals related to the NC and ND licenses. The process itself will parallel the 4.0 versioning process in part, but is not going to conclude before the 4.0 licenses are published. No decisions have yet been made by CC, and none will be made without consulting first with the affiliates and the broader community. The primary discussion forum for this topic will be the CC community list.

No question here as this is an update, but comments or concerns welcome.

Africa

  • It’s been interesting watching the online debate
  • The proposals to get rid of NC and ND are a bit naive
  • If CC did make such a radical move as getting rid of NC and ND, someone else would step in and fill the void
  • There is some confusion about whether NC is used by people who don’t want to make money off their works or who don’t want others to make money of their works
  • Support for re-labeling NC to be clearer
  • License language should be changed to be clearer
  • Semi-permeability of CC is attractive
  • Being able to bridge two world is important
  • NC lets people move into open licensing slowly
  • NC sets an example for the patent world
  • Agreement that need clarity of new name for NC
  • Suggestion to rename NC as Economic Rights license
  • Pushback on Economic Rights label as being broader than NC
  • People are impressed most by the range that CC covers
  • Important to keep NC and ND


Arab World

  • No specific comments


Asia Pacific

  • Understands concerns of those asking for NC and ND to be removed, but the argument is very ideological
  • Some important adopters use NC and ND; we should consider their perspectives as well
  • Retiring NC and ND could result in global default NC/ND licenses emerging from elsewhere. These license may be less similar in terms of language, basic concepts used, terms, presentation, and/or organization. That means more burden for reusers who want to combine and remix licensed works. That’s bad for culture.
  • Consider what the free culture movement is saying because they have been powerful, innovative and effective. Don’t want to get into infighting between FSF and CC supporters. That could cause loss of impetus and reputation.
  • Also consider existing stakeholders. If CC fails to be a good trustworthy steward, CC will fail.
  • Consider those who have yet to learn about CC. If we focus on serving a niche, another institution may serve the wider society to bring cultural change, or worse, society will not see the promised potential of ICT’s in transforming the cultures.


Europe

  • No specific comments


Latin America

  • Defends the NC licenses
  • NC licenses are popular because they are needed
  • There’s a very vocal minority who are anti-NC
  • Numbers of NC licenses in use speak for themselves
  • People want NC and still use it
  • The CC suite would be less effective without NC
  • NC is important for business models; people really do use it to make money
  • NC is very important in Latin America and is used by academic publishers there
  • CC needs to keep the NC licenses in order to provide support to those who use it


Undertakings by licensors with respect to rights in the work

A proposal has been recently introduced on the list that would require a licensor who is aware of third party rights to a work to document those rights in a way that the limitations of the license are visible to would-be licensees. This proposal is not a warranty or representation in the nature of what CC had in the version 1.0 licenses, since removed. It is instead in the spirit of a documentation obligation.

Does anyone want to comment on this proposal, or have thoughts about the advisability of including it in the 4.0 licenses?

Africa

  • No specific comments


Arab World

  • No specific comments


Asia Pacific

  • Works often have multiple rightsholders; it’s very complex to make sure all rights are covered and the work is ready for reuse
  • In many cases, licensees inaccurately assume works are ready for reuse
  • Licensors may also have an inaccurate assumption that they need to clear all rights before releasing a work under a CC license
  • Requiring this identification could potentially be a source of lack of compliance
  • This also comes up in human readable deeds versus legal text
  • Suggested quick fix of stopping a use of the word “work.” Instead of licensing the work, license the rights.
  • The structure of licensing and sub-licensing is closely related to this subject
  • Concerns about different parts of the same work being under different licenses
  • Currently, there is a convenient misunderstanding around third-party rights, but it could become problematic
  • Need to make a policy/ risk-management decision
  • Many adopters don’t understand legal rights; need to educate licensors about what right are


Europe

  • There are two possible positions here: 1) Keep same as under draft 1 with licensee’s responsibility to identify other rights but not in the license; 2) Require licensors to identify rights
    • Second option results in a better environment with a greater number of clean works
  • Wording about what is reasonable to expect from Licensors is good, but may cause problems with statutory damages
  • Would favor an increase in usage of CC works in a corporate environment where they want more assurances
  • More responsibility should be on the licensor
  • Current disclaimers are too broad
  • In court in Italy, you’d probably wind up with a situation where the licensor should have identified other rights, even under the current license language
  • French courts would do the same
  • Even though courts would treat the license this way without the clause, the clause should be added because there is a problem if the new intro license language conflicts with this treatment
    • Clause would make trial quicker, cheaper and easier
  • Portugal doesn’t have same legal presumption
  • Suggestion to make identifying other rights a possibility but not a requirement because licensors often don’t know of third-party rights
  • Damages for institutional users can be quite high, makes them an easy target if they aren’t aware of other rights


Latin America

  • No specific comments

Other items raised (open discussion)

Technical Protection Measures were asked about on several calls. The main question everyone is exploring is whether or not the licenses can authorize licensees to circumvent technical protection measures on CC licensed works. We examined two proposals with respect to TPMs as part of draft 1, and for reasons summarized on the wiki and in our communication had decided as of draft 2 not to change course as of that time.

Since publishing draft 2, CC has been prompted by continued discussion on the list to consider in more depth the option of allowing licensees to circumvent TPMs when the application by licensors or another with their authority such as a web platform distributor of TPMs impede licensees from exercising rights under the license. We sympathize with those who are anti-DRM, but also want to implement solutions in the license that are legally sound. We have reservations that the permission is possible everywhere, or that the positions offered on the list that are largely US-centric are as clear-cut as suggested. For example, we know in the United States that those who apply DRM can assert a claim under the DMCA even if not also the copyright holder. We want to think about all the cases and situations around the globe, however, and see if permission to circumvent is possible (or not) with the consent of the copyright holder. We do so keeping in mind that we remain deeply concerned about introducing a permission that could mislead licensees into believing they can circumvent risk-free, particularly given the differing legal landscape around the world and lack of harmonization. We will ask for more information about this, but if anyone has comments to offer now we would like to hear them.

The conversations looked at the legal framework for circumvention in participants’ jurisdictions.

Africa

  • Support for keeping the prohibition against licensees adding TPMs
  • Would like to add authorization for licensee to circumvent TPMs
    • Such permission would be valid in South Africa because there is legislation allowing the authorization to circumvent
  • Important to have circumvention permission language for the countries where it would be effectives
  • Botswana’s anti-circumvention section is in its copyright law
  • Suggestion to keep Section 3 as is, but add language to the extent that “if a TPM is imposed by a third party, then as far as the Licensor is concerned the Licensor consents to circumvention.”
  • Allowing circumvention should be fine in Uganda
  • Suggestion to have affiliates check their relevant laws to find out if permitting circumvention is allowed
  • Many countries are currently considering adding anti-circumvention laws and the model law they’re working with doesn’t allow granting permission to circumvent


Arab World

  • No specific comments


Asia Pacific

  • No specific comments


Europe

  • Suggestion for a GPL-style clause where any TPM attached is considered non-effective and so circumvention isn’t against the law
  • Most legislation grants rights to enforce circumvention provisions to copyright owner, so owner should be able to allow circumvention


Latin America

  • Circumvention is a criminal act in Latin America, but circumvention is presumably ok if permission is given
  • Cannot give permission to break the law, so cannot give permission to circumvent if there is a separate obligation like a EULA
    • Potential violation of hacking laws


CC’s 10th Anniversary celebrations are coming up in December. Some affiliates were interested to hear about how this relates to 4.0.

Asia Pacific

  • Inquiry into whether the launch of 4.0 is related to the 10th birthday celebration
    • They are not linked explicitly, but can use birthday celebration as an ideal deadline for 4.0


A new collecting society license was suggested by one of the teams. This license would allow collecting societies to use CC but retain all rights to collect royalties for all uses.

HQ

  • Only the current six licenses are currently being reviewed.
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  • This page was last modified on 9 October 2012, at 17:40.