Internationalization

This page presented an issue for consideration in the CC license suite 4.0 versioning process. The discussions have now concluded with the publication of the 4.0 licenses, and the information on this page is now kept as an archive of previous discussions. The primary forum for issues relating to the 4.0 versioning process was the CC license discuss email list. You may subscribe to contribute to any continuing post-launch discussions, such as those surrounding compatibility and license translation. The wiki has been populated with links to relevant email threads from the mailing list where applicable, and other topics for discussion were raised in the 4.0/Sandbox. See the 4.0 page for more about the process.

Contents

Summary

Internationalization is the process by which CC continues to ensure that our licenses operate globally and atop applicable copyright law as intended. This page provides context for the way internationalization of the license language and terms was made an express priority for 4.0, and aggregated relevant considerations and proposals for improving still further the international reach and usability of the core licenses.

N.B. The internationalization effort is not designed or intended to undermine the value of the porting process, the continued need for which will be discussed separately in a formal consultation period during the 4.0 process. We respect the important role that porting has played and continues to play on many levels, including acceptance of CC licenses by important adopters. Further internationalization of the licenses in 4.0 is critical for the continued maintenance and improvement of the licenses.

The formal porting consultation will take place around the second quarter of 2014 and will be informed by issues raised during the drafting process. For those in our community wishing to voice opinions on the subject in advance, please post those to our existing Porting Project discussion page. In this first phase, the page below was only dedicated to identifying necessary and important changes to the language of the international licenses.


(expand to read Draft 1 treatment)

Draft 1

In this draft, we placed a major emphasis on communicating how the licenses are designed to operate internationally. Specifically, we drafted with a careful eye on limiting the scope of the license grant to uses that are restricted by applicable copyright and neighboring rights. (See the License Subject Matter page for a more complete description of how different rights are treated by the license.) Our goal was to do this in a way that conveys this concept clearly, is accessible to non-lawyers and allows the license to operate equally and effectively around the world.

We also account for internationalization in our recognition of moral rights, just as we did in 3.0, and are mindful that different jurisdictions where those exist permit those to be licensed, waived or otherwise affected in distinct ways, or prohibit any attempt to do so altogether. See the Moral Rights page for a further description of how this draft accounts for those differences.

Generally, internationalization is complicated, and we expect to further adjust the language to better communicate the license scope to the general public. We would like your feedback on how to do this, as well as how to better internationalize to make it accessible and usable in as many locations as possible.

Note we have also added a bullet point addressing our treatment of each internationalization proposal below.

(expand to read Draft 2 treatment)

Draft 2

In response to feedback on draft 1, we have heavily edited the language to make the license easier to understand. (Indeed, this is the primary reason we are not producing a redline comparison of d1 to d2, given the number of changes.) However, the effort to use plain language remains ongoing and will be a particularly strong area of emphasis once the substance of the license is finalized in the coming weeks. Please bear with us, and keep the constructive comments coming.

We also continue to incorporate changes to account for differences depending on jurisdiction. For example, we have included a provision allowing licensors to disclaim liabilities differently from the standard terms or to provide warranties, which accommodates differences in consumer laws worldwide and supports licensors who care (deeply) that their liabilities are limited and warranties are disclaimed in the manner they find most suitable. (See discussion on disclaimers.) Another example of continued internationalization includes incorporation of WIPO Copyright Treaty language in the definition of Share.

We continue to solicit input on how to further internationalize the license. Look for information about how the license is intended to operate in this d2 discussion period, leading into a concrete discussion about license interpretation prior to publication of d3.

(expand to read Draft 3 treatment)

Draft 3

While we continue to incorporate changes to accommodate specific concerns from various jurisdictions around the world, the main change designed to internationalize the license in this draft was the addition of an interpretation clause. The clause is included to give guidance to licensees as they determine their obligations under the license. It is tantamount to a choice of law provision but without naming the law itself, specifying that the license should be interpreted with reference to copyright and similar rights in effect where the licensee has used the licensed material. This is intended to track the likely outcome according to private international law, and where it does not then the clause allows private international law to control.

The second part of the clause is intended to ensure that the license is never interpreted to erode or override exceptions or limitations to copyright and similar rights. This clause tracks closely Section 2 in version 3.0. This important principle has always been fundamental to the operation of CC licenses, but we felt it was important to make it part of the clause that users and potentially, judges, will use when interpreting the license. We will be seeking additional input on this provision during this draft 3 public comment period.

For a more detailed explanation, please read the discussion prompt posted to the license development list. You can also review this table identifying other options we considered but ultimately found unsuitable.

Draft 4

We have removed the first sentence of the Interpretation section (Section 7(a) in d3), but retain the second sentence. This is in response to a group of comments that, taken as a whole, led us to believe the first sentence is not necessary and does not provide the clarity for licensors and licensees we were seeking. The removed sentence stated the established default rule that applies in the absence of any provision, so we saw no risk in eliminating the statement. That, plus the difficulties of expressing the rule properly, lead us to eliminate the sentence altogether. We will, however, be providing information outside of the license about the license operation and the default rule of interpretation.

There were some suggestions post draft 3 that we allow licensors to choose the law that applies or that a rule different from the default apply, such as where the licensed material is first made available. We are compelled to reject those options. While the default rule is not simple, it is established and understood generally, and is not as complex as allowing licensors to impose foreign laws on unsuspecting licensees. We have worked particularly hard in 4.0 to ensure that rights established in one territory or region are confined to that territory or region, and not exported via our licenses where no equivalent right exists. On the question of sui generis database rights in particular, we made this pledge affirmatively and unequivocally in Warsaw in 2011 as a condition of pursuing the licensing of those rights. The alternatives presented allow for that possibility and for that reason we choose to stay with the default rule that supports the intended operation of the license in this regard. Note that Creative Commons has informed its affiliate community that in the event we were to allow ports, any such port could not introduce a choice of law or forum provision. This will ensure all licenses operate the same around the globe.

Internationalization as of 3.0

Prior to version 3.0, CC drafted the core license suite against U.S. copyright law, referring to those licenses as the "generic" or "unported" licenses. With 3.0, Creative Commons changed its approach and deliberately chose to use the language of major international copyright treaties and conventions. [1] We introduced a new provision in the unported licenses (renamed the "international licenses" in 2009/2010) to make this explicit, and to provide an automatic localization rule for the international licenses:

The rights granted under, and the subject matter referenced, in this License were drafted utilizing the terminology of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the License terms are sought to be enforced according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law. If the standard suite of rights granted under applicable copyright law includes additional rights not granted under this License, such additional rights are deemed to be included in the License; this License is not intended to restrict the license of any rights under applicable law.[2]

Logic for further internationalization

Further internationalization of the CC license suite is a high priority:

  • An all too frequent complaint and possible inhibitor to adoption of CC continues to be the perception (justly deserved at times, though we've been working on changing that for awhile! [3]) that CC and its licenses are "U.S.-centric." This adversely affects our entire community, not just CC headquarters.
  • Although 55+ jurisdictions have ported some version of the CC licenses to their jurisdiction, there are more than twice that number of signatories to major copyright treaties that do not have ported licenses in their jurisdictions.[4] We want to be sure that the international suite addresses the needs (both legal and cultural) of users in all jurisdictions.[5]
  • Having a more internationally accepted and understood license suite gives added confidence to those who do not wish to use a ported license for any number of reasons.
  • Licensing data suggests a trend in preference for using the international licenses over ports, thus there is a real benefit to ensuring the international suite is as understood and widely-accepted as possible. [6]

4.0 drafting and policy considerations

  • To successfully accomplish the goal of further internationalization, full participation and engagement by all of our CC affiliates (including those who have successfully ported the licenses) is expected, as well as the participation of broader community. Please help identify ways we can improve the international suite to remove impediments to their usability in your jurisdiction (see below).
  • Creative Commons licenses have a solid enforcement record as currently drafted.[7] Introducing new or modified language or terms and conditions should be done cautiously to avoid compromising this record. This consideration applies to all aspects of the 4.0 drafting process.
  • The international licenses have been (and will continue to be) used in both civil law and common law jurisdictions. Are there improvements that ought be made to further ensure that the international licenses operate and are interpreted consistently across both systems?
  • Creative Commons 3.0 licenses are drafted using terminology found in important international conventions and treaties. [8] What additional conventions and treaties should be consulted and what else ought be kept in mind if, as anticipated, the version 4.0 licenses are drafted for further global reach and use?

Please add other considerations here.

Chart of interpretation options

Alternative interpretation options Considerations
Silence (equivalent of 3.0 international) No practical guidance for licensors or licensees; lacks predictability and depends on national or regional courts applying the same conflicts of law rules consistently and with the same outcome
Where the license is sought to be enforced No practical guidance for licensees; favors licensors who can chose laws that favor the result they seek; may have no practical relationship with the alleged infringing use; encourages forum shopping; may raise litigation costs yet judgment may not provide any precedential value; facilitates a “race to the top” approach to CC licenses
Laws in effect where the licensor is headquartered or domiciled Favors licensors; may have no practical relationship with the alleged infringing use; risks exportation of laws to jurisdictions where rights do not exist; may create greater uncertainty and chilling effect on users; licensees may not know where licensor is headquartered or domiciled
Laws in effect where the licensee is headquartered or domiciled Close to the established rule (where the work is used), but fails to account for other laws that may apply to one’s conduct when in other jurisdictions (i.e., foreigners must abide by the laws of countries they visit even if those same laws are not in force in their home country); holds licensees accountable for laws they “should” know
Laws in effect where the creator first releases the work Favors licensors; may have no practical relationship with the alleged infringing use; risks exportation of laws to jurisdictions where rights do not exist; may create greater uncertainty and chilling effect on users; licensees may not know where the work was first released; who determines "first"? holds licensees accountable for laws they "should" know

Proposals for internationalization in 4.0

For ease of reference on discussion lists, please do not alter proposal numbers.

[Note: these proposals are not necessarily mutually exclusive]

Please help us identify "general" drafting proposals and over-arching improvements that could be made to improve the international licenses so they operate as well as possible in your jurisdiction. For proposals to change specific provisions of the licenses to operate well with local law, please do not add those here but instead include those in an already-existing topic page or in the Sandbox.

Intl Proposal No. 1: Further align license definitions with those used in international copyright treaties such as Berne, the Rome Convention, and the WIPO Copyright Treaty where possible, accounting for differences.

  • Pros:
  • Cons: How does this affect the way the license operates in jurisdictions that are not a party to those treaties?
  • Other comments:
  • Treatment in 4.0 d.1: We made efforts to use terminology from international treaties where possible but also feel it important to signal in places more familiar terms for some users (e.g., in the definition of Adaptation, including the phrase “derived from” for those who are accustomed to the term “Derivative” instead, though the definition of Adaptation is designed to cover the rights regardless of how it is named under any particular law). We have also reduced the number of definitions in the license.
  • Treatment in 4.0 d.2: Continued work to use internationally familiar language.
  • Treatment in 4.0 d.3: Same.
  • Treatment in 4.0 d.4: Same.


Intl Proposal No. 2: Incorporate universal drafting conventions and styles in the licenses (to date, based largely on U.S. conventions and styles).

  • Pros:
  • Cons:
  • Other comments:
  • Treatment in 4.0 d.1: We have tried to implement this proposal by referring to changes made in ported licenses. Please keep the suggestions coming.
  • Treatment in 4.0 d.2: Same.
  • Treatment in 4.0 d.3: Same. This will be a major focus of the post-d3 public discussion period.
  • Treatment in 4.0 d.4: Same.


Intl Proposal No. 3: Account for differences between laws using accepted language and/or provisions that make clear that terms and conditions apply to the fullest extent permitted by (but not in contravention of) applicable law.

  • Pros:
  • Cons:
  • Other comments: For a more detailed explanation of this issue, visit the License subject matter page.
  • Treatment in 4.0 d.1: We have tried to make it clear which of the definitions vary according to applicable law, which are explicitly defined by the license terms, and which are generally defined by applicable law with some limited harmonization. This issue is described in further detail on the License Subject Matter page. We have also made clear in provisions that tend to vary in local treatment that the provision applies to the greatest extent possible, but not in contravention of local law where applicable. See, for example, the warranties and disclaimer provisions. We expect to formulate a proposal that will allow additional, limited terms to be added to the license to facilitate compliance with any relevant local consumer laws, much as the GPLv3 permits, and will solicit input on that proposal for the next draft.
  • Treatment in 4.0 d.2: Same.
  • Treatment in 4.0 d.3: Same. This will be a major focus of the post-d3 public discussion period.
  • Treatment in 4.0 d.4: Same.


Please add other internationalization proposals here, and number them sequentially.

Related debate

We encourage you to sign up for the license discussion mailing list, where we will be debating these and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.

Relevant references

Please add citations that ought inform this 4.0 issue below.

Notes

  1. See the version 3.0 announcement explaining changes.
  2. See Section 8(f) of the 3.0 international licenses.
  3. This is a discussion we have been having at the Board and staff levels for several years, and in which we have involved our affiliates regularly and actively sought their input. See the examples of that engagement at the preceding links.
  4. For example, there are more than 160 contracting parties to the Berne Convention.
  5. CC is also aware that many jurisdictions that have ported licenses in the past do not want to port in the future for any number of reasons. Those jurisdictions will also be served better by enhanced internationalization of the core, international suite.
  6. See Slide 7 of The future of noncommercial presentation from the CC 2011 Global Summit.
  7. See the case law database.
  8. See Comparison of treaties and license definitions for one analysis of how the definitions in version 3.0 align with conventions and treaties as of 2007.
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  • This page was last modified on 9 December 2013, at 19:08.