Treatment of adaptations

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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

Four licenses in the CC license suite—CC BY, CC BY-SA, CC BY-NC, and CC BY-NC-SA—allow licensees to create adaptations of the licensed work. By definition, an adaptation constitutes the new contributions by the person adapting the work and does not extend to the preexisting material.[1] This is a complexity of copyright law, not the CC licenses themselves. Thus, when an adaptation of a CC-licensed work is created and licensed, the new license only applies to the adapter’s new contributions and not the original content. The original work is licensed to the downstream user directly from the original author. A user of an adaptation licensed under a CC license is receiving and must comply with (at least) two licenses -- one from the creator of the original work, and a second from the adapter (the person creating and licensing the adaptation) for use of the new content and modifications contributed by the adapter. This is because CC licenses do not allow sublicensing.[2] This nuance creates complications.

Treatment in drafts

(expand to read Draft 1 treatment)

Draft 1

We have made two changes in 4.0. First, we have rewritten the definition of Licensed Work (formerly “Work” in 3.0) to explicitly mention that it does not extend to third party material or public domain content. This has always been the case, but making it clear that the license only applies to the licensor’s content or contribution (and not otherwise) is important. For example, a licensor may apply a CC license to a book, but to the extent the book incorporates third party content (including CC-licensed content), the license applied to the book does not extend to that third party material.

Second, we have added a specific requirement that licensees who create and share Adaptations must state that the original work is offered under the terms of the original license. This is intended to clarify that the license has always followed the original work, and the original work is always subject to its terms and conditions (including attribution).

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

(expand to read Draft 2 treatment)

Draft 2

No change from draft 1.

(expand to read Draft 3 treatment)

Draft 3

This draft introduces two major changes designed to address the treatment of adaptations.

First, we have revised the language in the ShareAlike condition to make it clear which rights licensees are required to share alike. Adapting licensees only hold copyright in their own contributions to the adaptation, and not the underlying original work. This new language makes that abundantly clear. The corollary to this is that the original licensor continues to hold the rights in the original work even when it is used in the adaptation, and that the original work is still subject to the original license. We have inserted a sentence to make that clear as well. These changes are intended to help make it clear that two licenses apply to adaptations of ShareAlike works.

The other major change is the inclusion of a provision specifying how adaptations of BY and BY-NC material must be licensed. The provision will provide important clarity for licensees and may help minimize interoperability problems among CC licenses and other public licenses. However, the limitations are minimal -- adaptations must be licensed on terms that allow recipients to simultaneously comply with those terms and the original license. This intentionally leaves a lot of flexibility for licensees as they create and license adaptations, but we are mindful that this flexibility could complicate reuse for downstream users, as explained below. Therefore, we want to be clear that the minimum requirements set forth in this provision do not change our basic guidelines about best practices when licensing adaptations. We recommend against licensing adaptations under a less restrictive license where confusion is likely. On balance, we decided it was best to enable flexibility for licensees as a legal matter, while continuing to educate about the practical implications for reusers.

Note also that the provision includes a clarifying sentence similar to that in the ShareAlike condition, which specifies that the rights in the adaptation held by the original licensor remain subject to the original license.

This new provision will be a focus of the public discussion period.

Draft 4

We are now using the term "Adapter's License" throughout the text instead of "Adaptation License.” This is more accurate, considering the way that the licenses apply to a work when Adapted Material is produced. The creator of Adapted Material may choose the license that applies to his or her contributions. However, both the CC license on the original work and the license that the adapter uses for the new contribution apply to the use of the Adapted Material (in addition to whatever third-party rights may apply). We have also added language making it clear that the definition of Adapted Material only covers material adapted by the particular licensee reading the license. This is designed to help make it clear that provisions involving Adapted Material apply only to adapters themselves.

Draft 4 addition: The NoDerivatives license has been changed to explicitly permit adaptations when those adaptations are not Shared. This is primarily to clarify the status of adaptations created ephemerally in the process of text and data mining, so that it is clear this activity is permitted by the license. While we considered making the effect specific to text and data mining, there were several reasons ultimately weighing against specificity. For one, creating an appropriately-scoped definition is a difficult task. Primarily, though, we think that most private uses are already permitted under the ND licenses, and do not think making the distinction for a single type of use would be beneficial. The broad permission also harmonizes the treatment of private uses across jurisdictions amid varying local exceptions and limitations. It is still true that the NoDerivatives licenses do not permit sharing of derivatives created; the effect of the license should be essentially the same.

Licensing adaptations

When a licensee creates an adaptation of a CC-licensed work, he is required to release adaptations under the same license if the original work is licensed with a ShareAlike condition. But if the the original is licensed under CC BY or CC BY-NC, there is no express requirement to license adaptations under particular terms and conditions. CC’s FAQ state that adaptations must be released under a license at least as restrictive as the original, but this obligation is not explicit in the license.

Rather, to create an adaptation of a work licensed CC BY, the license says the adapter must attribute the original work, identify that his new work is an adaptation, and include the URI for the license under which the original is released. If the creator of the adaptation complies with these conditions, he may believe he is free to release his adaptation under any license, including CC0, or even reserve all rights under copyright.

Similarly, to create an adaptation of a work licensed CC BY-NC, the license says the adapter must meet the same requirements as BY, but also avoid using the original work for commercial purposes. If the creator of the adaptation complies with these conditions, including using his adaptation for non-commercial purposes only, he may believe he can license his adaptation without the NC condition.

CC’s license text has been criticized on this point for the following reasons:

  1. Because the license text does not explicitly dictate how adaptations must be licensed in CC BY and CC BY-NC, it is open to an interpretation that allows adaptations to be released under a less restrictive license, which may contradict the intentions of licensors.
  2. If adaptations are released under a different license than the original, it complicates the license obligations of downstream users as explained in detail below.

Proposal for clarifying how adaptations may/must be licensed in 4.0

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


Adaptations Proposal No. 1: Add explicit requirement to BY and BY-NC stating that adaptations of licensed work must be released under a license with at least the same conditions as the original work.

  • Pros:
    • This would likely conform to most licensors' expectations and assumptions about how the licenses work.
  • Cons
    • It would prevent licensees from releasing their easily-separable adaptations under less restrictive terms, which could negatively impact the commons.
  • Other comments:
  • Treatment in 4.0 d.1: Not addressed in initial draft (only BY-NC-SA is currently under discussion). We encourage further input on this point during the first public discussion period.
  • Treatment in 4.0 d.2: Same.
  • Treatment in 4.0 d.3: Explicit clarification made that adaptations may be made under any license where it is possible to comply with both licenses. This will be accompanied by explanatory messaging around best practices for reuse, which recommend following the guidance in this proposal even though the strict requirements aremore flexible.
  • Treatment in 4.0 d.4: Same.


Adaptations Proposal No. 2: Drop BY-NC from the license suite, requiring licensors who want to prohibit commercial use to opt for either CC BY-NC-SA or CC BY-NC-ND.

  • Pros:
    • This would prevent any confusion about how NC adaptations are supposed to be licensed.
  • Cons
    • BY-NC licensors may not care how adaptations are released. If they did, they would likely use BY-NC-SA. Therefore, we may be imposing obligations on licensees that are unintended and unnecessary.
  • Other comments:
  • Treatment in 4.0 d.1: Not addressed. Further input needed.
  • Treatment in 4.0 d.2: Same.
  • Treatment in 4.0 d.3: CC will be keeping NC in the license suite as is. See more detail at NonCommercial.
  • Treatment in 4.0 d.4: Same.

For a proposal to retain flexibility for those licensing adaptations of CC-licensed work, see Adaptations Proposal No. 6 below.

License obligations of downstream users

As explained above, when someone creates an adaptation of a CC-licensed work and licenses it, the license on the adaptation only covers the adapter’s contributions and does not extend to the original content. To the extent the original work remains distinguishable in the adaptation, the original is licensed to the downstream user directly from the original licensor. In other words, the person using the adapted work is the licensee under two separate licenses -- one from the adapter with respect to the new elements (i.e. the adaptation), and one from the original creator with respect to the original.

This creates a number of complications:

  • definition of “work”: because CC licensors are not obligated to identify exactly what “work” they are licensing, users of the adapted work may not be able to determine what elements of the literary or artistic work are original to the adapter
  • attribution stacking: the user of the adapted work must attribute the licensor of the adaptation and the licensor of the original work to the extent she uses the work in a way that implicates the copyright in both
  • conflicting obligations: if the adaptation is licensed under a different license than the original work, the user of the new work may be subject to conflicting license obligations when using the adapted work

Proposals for simplifying license compliance in 4.0

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

[Note: these proposals are not necessarily mutually exclusive]

Adaptations Proposal No. 3: Require licensors of works that are adaptations of pre-existing works to include a clear notice that the license to the original work may also apply to those who use the adaptation.

  • Pros:
    • This would help alert licensees of adaptations to their potential obligations under prior licenses.
  • Cons
    • Licensors are already required to include license notice, so this may be redundant.
  • Other comments: Rather than imposing another obligation on licensors, we could build better notice into the license text itself.
  • Treatment in 4.0 d.1: Incorporated change.
  • Treatment in 4.0 d.4: Not incorporated, but have tried to make it clear that original license also applies to the adaptation.


Adaptations Proposal No. 4: Add explicit requirement to all licenses stating that adaptations of licensed work must be marked to identify changes and additions to the original work.

  • Pros:
    • Licensees of adaptations would then have notice about what license obligations apply to what portions of the whole.
  • Cons
    • This may not be practical in many (or even most) situations.
  • Other comments: Might be better as part of best practices guide. See Adaptations Proposal No. 6 below.
  • Treatment in 4.0 d.1: While we have retained the obligation to indicate that the work has been changed, we have not added a further requirement to mark changes. This obligation is onerous and may well be impossible depending on the type of Adaptation created, possibly discouraging remixing and adaptation of the work as intended by the licensor.
  • Treatment in 4.0 d.4: No marking requirement, but have included obligation to retain indication of previous modifications to the material. More detail here.


Adaptations Proposal No. 5: Require licensors of works that are adaptations of pre-existing works to copy/paste (or otherwise specify) attribution requirements for the original works in a fixed location (to ease compliance by licensees with all applicable licenses).

  • Pros:
    • Might improve attribution compliance by downstream users.
  • Cons:
    • Many times the attribution requirements for the original works will not be available, or this requirement will otherwise be impractical.
  • Other comments:
  • Treatment in 4.0 d.1: Not incorporated. More suitable for a best practices guide rather than as a strict requirement of the license itself given automatic termination of the license as a consequence of any failure to comply. Would make it harder and more complicated to apply; more room for inadvertent violations with termination as consequence.
  • Treatment in 4.0 d.4: Not incorporated, but have included obligation to retain indication of previous modifications to the material. More detail here.


Adaptations Proposal No. 6: Clarify and amplify the status of adaptations within the license text without adding any new requirements to the license; at the same time publish a best practices tutorial note explaining the nature of adaptations and highlighting the need to call out all applicable licenses when publishing an adapted work, so that users are made aware of all the conditions that apply (not just those related to the adaptation).

  • Pros:
    • Will provide a guide to those who are especially concerned with getting it right, but will not impose burdensome obligations generally.
  • Cons:
    • Only the most conscientious licensors will comply, so this may not have much effect.
  • Other comments:
  • Treatment in 4.0 d.1: Revisions intended to clarify and amplify the status of Adaptations in the license text have been included. Best practices to be revisited at a later date.
  • Treatment in 4.0 d.4: Further refinements made as explained in summary above. More detail about attribution and marking requirements here.


Adaptations Proposal No. 7: Consider allowing sub-licensing, at least for adaptations created under BY-SA, but possibly for a wider range of uses.

  • Pros:
    • It reduces the burden for users of a CC-licensed work when a work is adapted multiple times. If sublicensing is allowed, one does not have to consider all different CC-BY-SA licenses a work is under. Some of the licenses may be in another language, such as Japanese or French. If a potential user of a work does not have to read multiple license and just read one, that is a plus.
  • Cons:
    • We do not want to allow people to sub-license original works under different terms than the original license, which means we could not allow sub-licensing under non-SA licenses. Allowing sub-licensing under some licenses but not others increases complexity.
    • Even if we limit sub-licensing to CC BY-SA, some licensors may not want their works sub-licensed under a later version of CC BY-SA.
    • This may have negative effects on enforcement of the original copyright owner's rights. The licensee of the adaptation could rely on the sub-license as a defense to infringement.
  • Other comments:
    • The CC-BY-SA licenses are such that content under a version 2.0 cannot be used under the terms of CC-BY-SA 3.0. That means a derivative of a CC BY-SA 2.0 work cannot wholly be released under CC BY-SA 3.0. The same thing could happen between BY-SA 3.0 and 4.0. It is too inconvenient for potential users of the adaptation if there are two or more licenses to follow for different parts of a work.
    • NOTE: Beginning with Version 2.0 of CC BY-SA, the license states explicitly that an adaptation may be released under a later version of CC BY-SA. In other words, if you create an adaptation of a CC BY-SA v.2 work, you may release the adaptation under CC BY-SA v.3. This will also be the case with Version 4.0. Also, it is important to remember that any work that involves a remix of two or more CC-licensed works is subject to more than one CC license. The license always follows the work. See the explanation at the top of this page for more detail.
    • NOTE2: However, when a work under CC-BY-SA 2.0 is used to create an adaptation, and the adaptation is released under CC-BY-SA 3.0, it is not that the whole of the adaptation is usable under CC-BY-SA 3.0. It is more like a "blended" state of licenses - the parts of the adaptation inherited directly from the original work is usable under CC-BY-SA 2.0, and not under 3.0, whereas other parts of the adaptation is under CC-BY-SA 3.0. This is a direct consequence of not allowing sublicensing.
    • NOTE3: But this is the case with all adaptations of CC-licensed works, not just those using different versions of the license. See above for more explanation.
  • Treatment in 4.0 d.1: While reasons for considering this proposal have been articulated, we have not addressed it in this initial draft. Further input is needed before considering such a fundamental change in the operation of the licenses. We encourage those interested in such a proposal to articulate use cases where sublicensing would be beneficial, as well as any limitations on such a permission.
  • Treatment in 4.0 d.4: Not incorporated.


Adaptations Proposal No. 8: Allow sub-licensing solely to the extent necessary for a licensee to post CC-licensed third party content on an online platform.

  • Pros:
    • This would allow people to upload third party CC-licensed content to online platforms like Facebook without violating the terms of service or the terms of the CC license.
  • Cons
    • It may be difficult to craft language that is narrow enough to cover only this limited purpose.
  • Other comments: Many terms of service require uploaders to grant a license to all content being uploaded to the online platform provider. Because licensees cannot sub-license CC-licensed content, this arguably prevents them from uploading it to common platforms like Facebook. This is especially problematic in the case of adaptations of CC-licensed works because it may prevent creators of adaptations from uploading and sharing their work on popular platforms.
  • Note that even some platforms that "support" CC licensing does not necessarily accept uploading of CC-licensed works by a third party. See also a comment on Sandbox
  • Treatment in 4.0 d.1: While reasons for considering this proposal have been articulated, we have not addressed it in this initial draft. Further input is needed before considering such a fundamental change in the operation of the licenses. We encourage those interested in such a proposal to articulate use cases where sublicensing would be beneficial, as well as any limitations on such a permission.
  • Treatment in 4.0 d.4: Not incorporated.


Please add other 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. Article 2(3) of the Berne Convention: “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.” (emphasis added)
  2. See Section 8(b) of CC BY: “Each time You Distribute or Publicly Preform an Adaptation, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.”
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  • This page was last modified on 9 December 2013, at 20:43.