Policy Decisions and Versioning Notes
This page documents the principal policy decisions made by Creative Commons during the 4.0 license development process. This is a summary only. Additional information can be found at resources linked to throughout the text and at the end of this page.
Why version, why now?
Although the 3.0 license suite proved a tremendous improvement over earlier versions, we noticed limits on its effectiveness in the years following its publication in 2007. Among those were questions about the degree to which the 3.0 licenses could ever be fully accepted internationally. Another involved complications stemming from the existence of copyright-like rights that can interfere with the reuse of CC-licensed works, such as sui generis database rights, and their treatment in the 3.0 licenses.
The version 3.0 licenses were designed as international, jurisdiction-neutral licenses. This was CC’s first attempt at crafting a generic, international license. All the same, and as expected, cases were made for localizing the licenses through porting. This involved, as of 3.0, linguistic translation and wording adjustments to account for local law. The arguments for porting most often involved the absence of a provision in the 3.0 unported licenses addressing rights closely related to copyright, such as sui generis database rights in the European Union, or because the licenses inadequately addressed an issue of local importance, such as proper formulation of the disclaimer of warranties or the treatment of moral rights.
In jurisdictions without ports, adopters that wanted to use CC licenses were sometimes uncomfortable with the unported suite and avoided using those licenses. Some of those adopters held out for a ported suite, an extremely intensive commitment and process for all involved that requires local expertise and resources not always available. Still others created or adopted licenses incompatible with CC licenses, or instead simply refrained from joining the open licensing community. We considered this a serious limitation on the long-term usefulness of the 3.0 licenses.
We want anyone, anywhere to feel confident in adopting CC licenses, without regard to availability of resources, or linguistic, cultural, or legal barriers.
The second compelling reason to version involved ongoing challenges associated with sui generis database rights, and awareness of persistent efforts to create still more copyright-like rights. These rights can interfere with use of copyrighted works if not addressed intentionally within the licenses. The 3.0 unported licenses are silent in both regards, and because of that are less than ideal in their treatment of them. However, it had become apparent by 2011 that our licenses needed to address those rights more clearly and affirmatively if we were to stem the proliferation of custom licenses and other incompatible licensing solutions trying to fill this gap in the 3.0 suite.
Version 4.0 Policy Decisions
The 4.0 licenses are the product of several important policy decisions made during the versioning process. The following is a summary of the major issues considered. This is not a complete explanation of the considerations for all policy decisions made, nor does it reflect the depth of our analysis. It is intended to serve as a guide for understanding the major issues we considered and our resolution of those based on the best information at hand.
Sui generis database rights; other copyright-like rights
As noted above, one of the primary reasons we chose to version the license suite was to account for the existence of rights like sui generis database rights that are closely related to copyright and can interfere with use of CC-licensed material. In the 3.0 licenses, CC chose as a policy matter to neutralize sui generis database rights, meaning users never had to comply with the license conditions where only those rights existed and applied. More particularly, these rights are not mentioned at all in the unported 3.0 licenses, although an implied right might exist. These rights are covered in 3.0 EU ported licenses, but those licensors are required to waive compliance with the license where those rights are concerned. This policy choice was and continues to be consistent with our dislike of sui generis database rights. However, staking that position was not without its problems or critics.
Among other things, CC's 3.0 licenses have been marginalized in important data and database communities, and unused by important rights holders including some governments. Additionally, competing licenses were developed in the wake of CC’s decision to neutralize those rights, complicating the open licensing landscape.
With 4.0, we choose to address sui generis database rights and copyright-like rights. Both sui generis database rights and other “similar rights closely related to copyright” are now within the scope of all six 4.0 licenses and require compliance with the license conditions when applicable to the particular usage.
Note that the 4.0 licenses are carefully drafted to avoid the exportation of those rights to jurisdictions where they do not exist. Additionally, CC will communicate strongly and consistently on the problems associated with the establishment of new copyright-like rights, and against the expansion of these rights to other jurisdictions.
In the 3.0 licenses, SA compatibility with licenses outside the CC license family is possible only for BY-SA works; it is not available for material licensed BY-NC-SA. In 4.0, we choose to expand this mechanism to BY-NC-SA. While we are unaware of license candidates for a compatibility declaration with BY-NC-SA, we are establishing the mechanism to guard against a need to version the suite again to address a future, compelling case for compatibility.
Additionally, we made the decision to remove from the license text two of the three ShareAlike compatibility criteria allowing room for the possibility those may need to be reconsidered and updated once true candidates for determinations are identified. CC has never named another license compatible with BY-SA 3.0, so removing those criteria creates no real world complication that might otherwise weigh against the change. This decision also allowed us to draw the 4.0 versioning process to a close without prematurely forcing a decision on the merits of two-way compatibility with the Free Art License or one-way compatibility with GPL, for example.
We have published for comment a draft ShareAlike Statement of Intent that, when finalized, will express CC’s commitment on criteria and processes for SA compatibility determinations and processes. This statement will be fully vetted and finalized before compatibility determinations are made.
We discovered during the versioning process that there were different interpretations about whether, under version 3.0, the ShareAlike licenses "stack" when adaptations are created. This is important because, in some cases, the adapter's license could be different from the original ShareAlike license: our SA licenses expressly allow a later version or another compatible license to be applied by an adapter. Reuse of adaptations can be complicated when licensees must review more than one license text to determine their obligations.
The version 4.0 ShareAlike licenses are unambiguous on this point – all upstream ShareAlike licenses apply to an adaptation. In our opinion, this is the best reading of the 3.0 licenses, though we could have been more clear on this point in the past. That said, we took seriously the concerns some users of the SA licenses expressed about the challenges of requiring users to look at more than one license text to understand their obligations.
Thus, with 4.0 we have made a policy decision to ease downstream compliance, and facilitate reuse of adaptations of works originally created under a 4.0 SA license. When using adaptations of 4.0 SA-licensed works, users are granted express permission to exercise the rights of upstream licensors under the conditions of the adapter’s license.
Establishing this as a clear rule in 4.0 makes sense for the SA licenses, because licensors and licensees expect the same conditions to apply to all adaptations in the SA context. Offering downstream users a relatively simplified way to comply with their obligations to all upstream licensors is also consistent with the spirit of SA. It is also consistent with the regular operation of copyright, which is clear that adaptations always involve more than one copyright. Finally, this change conforms to what many reusers of SA adaptations do in practice currently.
The scope of SA remains unchanged from version 3.0 and earlier license versions. While we considered seriously two proposals for expanding the reach of SA, we found neither compelling enough to deviate from prior treatment.
Moral rights; similar rights
In 4.0, we made a choice to limit the role of moral rights where the exercise of those rights by licensors would prevent uses the CC licenses are designed to permit, but only to the extent those rights are held by the licensor and may be waived or not asserted. This is a change from the 3.0 unported licenses, but is in line with several 3.0 ported licenses. The rationale for this treatment is that licensors should not be allowed to assert those rights to prevent others from exercising rights they grant through our licenses. Note that the license only affects moral rights held by the licensor, and it affects them at all only to the extent necessary to make the licensed rights meaningful.
Also, we have expanded the moral rights provision to treat publicity, privacy, and personality rights in the same manner. The policy rationale is the same. We wish to limit the ability of licensors to use any of these closely-related rights they hold to prevent uses they have specifically granted, but not otherwise.
Termination: limited automatic reinstatement
We welcomed a proposal to include a new mechanism in 4.0 by which licensees may have their rights under a terminated 4.0 license automatically reinstated without first seeking the express permission of the licensor in limited circumstances. The provision only applies to violations that are cured by licensees within 30 days of becoming aware of the problem. Licensors are still allowed to seek remedies for violations.
This policy decision was driven in part by concerns of adopters seeking to leverage CC-licensed content in important contexts, but who have been reluctant to do so for fear of unintentionally violating a condition and losing rights permanently either because they are unable to contact the licensor or the licensor refuses to reinstate the license. This change also conforms with the way in which violations are generally handled in practice under the 3.0 and earlier licenses. This new provision closely mirrors termination provisions in other open licenses.
We choose not to change the scope of NC in 4.0, but instead retain the same definition as has existed in all versions to date. The existing definition is one that our community has become accustomed to and relies upon, including some photographers and musicians. A proposed alternative would have had to be extremely compelling to justify disrupting those expectations. While some proposals for changing the definition had merit, they all fell short of that difficult standard. Upon close review, proposed alternatives introduced new, additional layers of uncertainty for licensors and licensees and did not result in a net benefit.
Deprecation of the NonCommercial licenses
Mid-way through the 4.0 process, proposals surfaced to deprecate or not to version the three NonCommercial licenses (BY-NC, BY-NC-ND, and BY-NC-SA), or rename the NC licenses “Commercial Rights Reserved” or another name. This occurred once we had settled on not changing the definition of NonCommercial (see above). At that juncture, we de-coupled the versioning process from the renaming and deprecation consultation. The outcomes of that consultation are documented on our wiki and blog.
Warranties by licensors
We declined to pursue proposals to reintroduce representations and warranties on the part of licensors, removed from CC licenses as of version 2.0. We saw no compelling rationale for changing course. We concluded that the reintroduction would fail to solve the underlying problem, would very possibly mislead licensees, and could compromise uptake of the 4.0 license suite (licensors could opt out by remaining with 3.0). However, this proposal inspired the new “Using Creative Commons Public Licenses” section that will precede all CC licenses, across all versions, and is a compromise forged between CC and many of those who promoted the reintroduction. Its purpose is to promote best licensing practices for licensors, and alert licensees to the limits of our public licenses.
Effective technological measures (digital rights management)
We intentionally surfaced proposals from earlier versioning efforts on the topic of allowing licensees to apply DRM, knowing that our community cares deeply about this topic and holds passionate opinions across the spectrum. We were not persuaded, however, that allowing licensees to affirmatively apply ETMs on others’ works on the condition they provide a parallel “source” or other condition is an effective outcome. Nor would it provide benefits outweighing the many problems created in turn. But most importantly, we see no reason at a policy level to differentiate between prohibiting licensees from imposing legal restrictions that restrict exercise of the licensed rights – an essential and long-standing prohibition and tradition in our licenses – and prohibiting the application of technologies that have the effect of imposing legal restrictions on reuse.
However, we were persuaded that licensees ought have express permission – to the extent the licensor can grant it – to break such measures in order to exercise the rights CC licenses grant. In 4.0, licensees are affirmatively granted permission to circumvent effective technological measures placed on the work. We were convinced by the argument that this more completely positions CC on the issue of DRM – adding express permission to circumvent grants a permission that is important to enabling reuse of CC-licensed works consistent with the sprit of licenses voluntarily applied by creators. We will be cautious in our guidance to licensees about what the provision does and does not enable per the advice of our affiliates.
Through version 3.0, the NoDerivatives (ND) condition has operated as a limit on the license grant itself—it prohibits the creation of derivative works. However, because it’s difficult to determine whether private adaptations are being made using ND-licensed works, the NoDerivatives restriction is poorly equipped to regulate private use.
However, intellectual property laws vary around the world, including in regard to adaptations. Additionally, material may be restricted by exclusive rights arising from different sources. For example, in Europe, databases can be restricted by both copyright and sui generis database rights. When content is covered by more than just one type of exclusive right, it is difficult to determine whether a particular use is permitted by the applicable rights regimes. This uncertainty is problematic for content licensed under a NoDerivatives license where the threshold for ascertaining whether an adaptation has been created is driven by applicable law.
The 4.0 licenses now cover both copyright and copyright-like rights such as database rights. But, as mentioned above, a downside in expanding the scope of rights granted is the potential confusion over whether a particular use is permitted. This affects users wishing to use 4.0-licensed content under fair use, fair dealing, or another limitation or exception to copyright rights. Since the limitations and exceptions available under copyright-like rights are not identical to those available under copyright, licensees might choose not to avail themselves of these limitations and exceptions at all. This is problematic for Creative Commons given our longstanding commitment to both preserving limitations and exceptions, and encouraging licensees to depend on them whenever possible.
From a policy perspective, it is important to establish a default in the license that counters the complexity that the expanded scope of the license creates. The most logical policy choice is to always allow adaptations in situations typically beyond the reach of copyright, such as in private use. Adopting a rule that allows for the private creation and use, but not sharing, of adaptations makes logical sense, as a practical matter is fairly limited in the copyright context, and preserves the intent of the original ND licensor.
So, in the 4.0 NoDerivatives licenses, we have chosen to allow the creation and use of adaptations provided they are not publicly shared. This means those engaging in private remixing of 4.0 ND-licensed content, such as may happen during text and data mining, can do so without worrying about inadvertently running afoul of the ND condition. However, note that remixers of 4.0 BY-NC-ND licensed content need to abide by the NonCommercial (NC) limitation where the any reuse (public or private) implicates any rights in the work for which no applicable limitation or exception applies. Look for more information shortly following the launch on the implications of this change.
CC plans to continue to encourage the expansion of limitations and exceptions, and other reforms, to allow greater reuse of content restricted by copyright and copyright-like rights, consistent with our recent policy statement.
- What's new in 4.0
- Detailed review of changes between versions including 4.0
- 4.0 wiki pages documenting proposals and decisions
- License development public email list archives, documenting 4.0 discussion and comments
- Blog post announcing 4.0 launch
- ↑ In version 3.0, the definition of a compatible license within BY-SA includes: "(i) contains terms that have the same purpose, meaning and effect as the License Elements of this License; and, (ii) explicitly permits the relicensing of adaptations of works made available under that license under this License or a Creative Commons jurisdiction license with the same License Elements as this License".
- ↑ This is not to say that CC—in close collaboration with its affiliates and broader community—may not choose to re-establish those as firm criteria; this does, however, give us flexibility to consider the possibility of adding to or refining those criteria. Some in our community have urged one-way compatibility with GPL. Lifting these criteria out of the license text allow us to consider that possibility, at least for BY-SA 4.0 original works. Note that whether we decide to proceed with one-way compatibility is an open policy question that will be resolved post-publication of 4.0.
- ↑ To be clear, this is not the case with BY or BY-NC. For those licenses, we have also clarified how adaptations may be licensed, but all upstream license terms must be respected. See our notes to draft 3 of 4.0 for more information on the change in BY and BY-NC.
- ↑ This permission is implied in 3.0; we now make it explicit in 4.0.
- About CC Wiki
- This page was last modified on 26 November 2013, at 18:33.