Revision as of 16:48, 11 January 2013 by Elliot Harmon
The following list sets out some basic things that you should think about before you apply a Creative Commons license to your work. It is not an exhaustive list. If you have additional questions or concerns, feel free to post to one of our email discussion lists, to send us an email at email@example.com or send an email to one of our country project leads or obtain your own legal advice.
Make sure your work is copyrightable
Creative Commons licenses apply to works that are protected by copyright. Copyright protects creative expression. Generally, works that are protected by copyright are: books, scripts, websites, lesson plans, blogs and any other forms of writings; photographs and other visual images; some compilations of data; films, video games and other visual materials; musical compositions, sound recordings and other audio works.
Copyright does not protect the facts or ideas underlying the creative expression. So, Creative Commons licenses do not apply to ideas, factual information or other non-creative elements that are not protected by copyright. If you are based in the US, you can find out more about what is and is not capable of copyright protection at this site. If you are based in the UK, visit this site. If you are based in Taiwan, the relevant statutory provisions are Articles 9 and 10bis. Other countries may also have different rules, and you should check them before applying a Creative Commons license to your works.
Make sure you have the rights
Before applying a Creative Commons license to a work, you need to make sure you have the authority to do so. This means that you need to make sure that the person who owns the copyright in the work is happy to have the work made available under a Creative Commons license.
If you are the creator of the work, then you are most likely the owner of copyright and so can license the work how you wish. If you made the work as part of your employment, then your employer may own the rights to the work, in which case only your employer can decide to apply a Creative Commons license. If you made the work under an agreement, you need to check the terms of that agreement to see if the rights to the work were transferred to someone else.
If you are combining pre-existing works made by other people (unless those works are in the public domain, and thus permission is not required) or working in conjunction with other people to produce something, then you need to make sure that you have express and explicit permission to apply a Creative Commons license to the end result (unless your use of the pre-existing works constitutes fair use, and thus no permission is required). You do not own the copyright in a physical copy of a work, for example, a Madonna CD or novel by Calvino, and therefore you may not apply a Creative Commons license to those items. You can only secure express permission if you are in direct contact with the copyright owner, discuss Creative Commons licensing with them and they agree to a specific license. Of course, if you are combining a work that is already Creative Commons-licensed then you will also have the rights, provided your use is consistent with the terms of that license!
Make sure you understand how Creative Commons licenses operate
Before you apply a Creative Commons license to your work, you should make sure you understand how they operate. You can do this by reviewing the FAQ and/or ask specific questions and voice your concerns on our discussion fora. Below is an overview of some of the key elements of the Creative Commons licensing model.
How does a Creative Commons license operate?
Creative Commons license are based on copyright. So they apply to all works that are protected by copyright law. The kinds of works that are protected by copyright law are books, websites, blogs, photographs, films, videos, songs and other audio & visual recordings, for example. Software programs are also protected by copyright but, as explained in the FAQ, we strongly recommend that you do not apply a Creative Commons license to software.
Creative Commons licenses give you the ability to give express permission for others to use your copyrighted works—such as the right of others to copy your work, make derivative works or adaptations of your work, to distribute your work and/or make money from your work. They do not give you the ability to restrict anything that is otherwise permitted by exceptions or limitations to copyright—including, importantly, fair use or fair dealing—nor do they give you the ability to control anything that is not protected by copyright law, such as facts and ideas.
Creative Commons licenses attach to the work and authorize everyone who comes in contact with the work to use it consistent with the license. This means that if Bob has a copy of your Creative Commons-licensed work, Bob can give a copy to Carol and Carol will be authorized to use the work consistent with the Creative Commons license. You then have a license agreement separately with both Bob and Carol.
Creative Commons licenses are expressed in three different formats: the Commons Deed (human-readable code), the Legal Code (lawyer-readable code); and the metadata (machine readable code). You don’t need to sign anything to get a Creative Commons license—just select your license at our ‘License’ page.
One final thing you should understand about Creative Commons licenses is that they are all non-exclusive. This means that you can permit the general public to use your work under a Creative Commons license and then enter into a separate and different non-exclusive license with someone else, for example, in exchange for money.
Do the ported licenses contain special terms depending on which one you choose?
As a licensor, you should always know what the terms of the specific license you are applying provides in advance. This is true whether or not you choose a ported or international license. Our porting process involves adapting the international licenses to the legal framework of different jurisdictions, and in that process slight adjustments may have been made that impact license choice.
A handful of the 3.0 ported licenses (as well as pre-3.0 ported licenses) contain provisions specifying which laws will apply in the event the licensor chooses to enforce the license, and one 3.0 ported license suite (the Hong Kong license suite) and a few of the ported pre-3.0 ported licenses contain a forum selection clause.
Before choosing a ported license, you are encouraged to review the legal code carefully. You may also want to access the jurisdiction database to search for licenses that contain choice of law and/or other terms and conditions that you may find relevant to your license selection.
What if I change my mind?
This is an extremely important point for you to consider. Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop offering your work under a Creative Commons license at any time you wish; but this will not affect the rights associated with any copies of your work already in circulation under a Creative Commons license. So you need to think carefully when choosing a Creative Commons license to make sure that you are happy for people to be using your work consistent with the terms of the license, even if you later stop distributing your work.
For some creators and/or licensors, this is not an important issue. And most educators who put their their educational resources online do so with the idea that they will be widely shared. But if you depend on controlling the copyrights in your resources for your livelihood, you should think carefully before giving away commercial rights to your creative work. For example, many musicians have discovered that offering work for noncommercial use can be quite rewarding. But anything beyond that requires careful consideration. We all admire generous souls. But if you want to be generous, we want you to think carefully about it before you are.
Be specific about what you are licensing
You need to be specific about exactly what you are CC-licensing when you apply the Creative Commons license to your work. We give you the option of identifying the format of the work in the metadata (text, audio, video, image, interactive) and you should use this. This enables more precise machine-readable language.
However, you should also think about exactly which elements of your work you are licensing. For example, in the case of a website, are you licensing just the text and images? Or also the stylesheets and the code that run the site? Similarly, if you make CC-licensed music available for download on your site, does the Creative Commons license apply to both the musical composition and the sound recording as well as any artwork and graphics at your site? And remember, as discussed under “2. Make sure you have the rights” above, you need to make sure you have the rights to each element that you license under a Creative Commons license.
Take a moment to think about exactly what you are intending to license and then frame your metadata and legal notice accordingly, eg. “All images at this site are licensed under a Creative Commons [insert description] 2.5 license.”
Are you a member of a collecting society? If so, does it allow you to CC-license your works?
You need to check with your society. Currently, many of the collecting societies in Australia, Finland, France, Germany, Luxembourg, Spain, Taiwan and the Netherlands take an assignment of rights (or in France what is called a “mandate” of rights that nonetheless has the same effect practically as an assignment) from you in present and future works (so that they effectively become the owner of these rights) and manage them for you. So if you are already a member of a collecting society in one of these jurisdictions, you may not be entitled to license your work yourself under a Creative Commons license because the necessary rights are not held by you but by the collecting society. Please also read the FAQ on the website of the Creative Commons project team for your jurisdiction for more information about this issue in your jurisdiction.
Creative Commons is reaching out to collecting societies in those jurisdictions where this problem arises to try to find a solution that enables creators of content to enjoy the benefits both systems offer.
If you encounter difficulties with using Creative Commons licenses because of your membership in a collecting society in your jurisdiction that is not listed above, please let either your country’s Creative Commons’ project team know or email firstname.lastname@example.org. Also, if you wish to discuss ways to try to deal with the situation in your country please contact your country’s Creative Commons’ project team.
If you are already a member of one of these collecting societies, feel free to encourage your collecting society to give you the option of Creative Commons licensing.
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