notes

In May 2012, Creative Commons engaged with its affiliates around the world and across six regions to discuss the first draft of the version 4.0 licenses.

These conversations gave CC the opportunity to receive targeted feedback from legal experts and others who are deeply familiar with the CC license suite, have experience advising users of the licenses in multiple domains such as education, science, culture, GLAM, data, and public sector information, and understand how the CC licenses operate under varying and sometimes quite intricate national copyright laws.

The following topics were covered in each regional meeting/call, with initial overviews of the issues provided by CC HQ (which are also included below):

1. Scope and operation of license: copyright, neighboring rights, moral rights and ancillary rights
2. NonCommercial definition
3. Attribution
4. Termination
5. Technical Protection Measures (TPMs)
6. Additional terms
7. Collecting Societies
8. Other items raised (open discussion)

Participating jurisdictions:

Africa: Nigeria, Kenya, South Africa

Arab World: Egypt, UAE, Algeria, Oman, Qatar, Jordan, Lebanon

Asia Pacific: Japan, Taiwan, Hong Kong, New Zealand, Australia, Jordan, and South Korea

Europe: Netherlands, Ireland, UK England & Wales, Ukraine, Czech Republic, Sweden, Italy, Croatia, France, Poland, Luxembourg, Bulgaria, Slovakia, Russia, and Portugal

Latin America: Costa Rica, Puerto Rico, Guatemala, Perú, Chile, México, Brasil, and Ecuador

North America: Canada, United States

Scope and operation of license: copyright, neighboring rights, moral rights and ancillary rights

The most complex and important aspect of the license is its scope. Creative Commons licenses were designed as copyright licenses - they grant permission to do things that are otherwise restricted by copyright provided certain conditions are met. The precise scope of the license in the 3.0 license suite is an open question, in part due to the nature of porting (which has resulted in more than 55 distinct suites of licenses that at times vary from the international (or unported) license suite) and therefore differ in scope. The unported v.3 licenses and most v.3 ports do not address database rights, for example, however many EU ports explicitly address database rights even though exercising those rights does not trigger compliance with license conditions.

CC has three primary goals with version 4.0: (1) to be as precise as possible about what rights are licensed so that licensors and licensees know what rights are being granted and apply, (2) to remain clear that the license only applies where permission is required, and (3) to explore ways to address rights that are in close proximity to copyright and could interfere with or prevent the exercise of rights under the license.

There are several different ways CC could approach this issue. In draft 1, we explored a two-layered approach which differentiated between rights that are subject to license conditions and rights that are affected but not subject to the license conditions. This approach was designed to trigger dialogue on the different categories of rights and different possible treatment in the license. In particular, in 4.0d1 the license is structured as follows:

Rights licensed and subject to license conditions: copyright, performance, broadcast, phonogram, database rights

Rights waived and not subject to license conditions: “ancillary,” copyright-like rights (example: exclusive right of European film producers to rent and lend copies of films, reproduce the films, and distribute the films to the public)

Q. Are these the correct rights to license? Is it a concern that different people may hold these rights? Are people concerned about these other ancillary rights? Is this really an issue we should try to address?

Africa:

• Would be useful to define neighboring and ancillary rights to give notice about what those terms are meant to include.
• Consider including folklore and traditional cultural expression rights within scope of the license.

Arab World:

• Important to be clear what is meant to be “ancillary rights” in the license. If we try to cover too many rights, it becomes confusing, especially when judges are not used to the terms. Should stick with copyright.
• By trying to mention all rights that are not affected (like patent and trademark), the license gets heavy.

Asia Pacific:

• Appreciate the desire for precision, but concerned that increasing complexity of license scope makes it more difficult for licensors to apply correctly and more complicated for licensees to understand.
• Generally good to include more rights in the license scope, but concerned about multiple rights holders and situation where licensor may not have cleared the other relevant rights to the licensed work.
• Issue of clearing other rights is a matter of due diligence for licensors before they apply a CC license.
• A similar problem arises when the licensor is not the original author of the work. From licensee’s point of view, it may not always be clear what rights are included in the license scope. Also raised idea of expanding scope to include design rights.
• Need to be careful not to expand too far beyond copyright.

Europe and North America:

• More information about the scope of the license in the preamble would be helpful to promote understanding of the license.
• Licensors should try to clear all rights (including publicity rights) to a work before licensing. This should be made clear in CC’s educational and explanatory materials (including the license chooser) if not addressed through the license itself.
• Preference for eliminating “ancillary rights” term and instead broadening definition of neighboring rights and licensing all of those rights affirmatively rather than waiving them.
• Like idea of tightly defining the rights licensed. The definition adds a lot of clarity about what is being licensed, but still concerned about ancillary and moral rights.
• Prefer an open-ended definition (e.g., “such as...”) to capture rights being licensed. Would be nice to allow rights holders to apply license if they own other rights but not copyright.
• If we leave some neighboring or other rights outside the license, the license will never be granting the full rights necessary to use the licensed work.
• Alerting licensees in the license preamble that the license may not grant all rights necessary to use the licensed work as intended could be valuable.

Latin America:

• Concerned about what happens when different people have different rights over the same work. This reflects the state of the law, but how do we make it clear to users? Perhaps consider conveying this concept in the license deed.
• Need to ensure we do not make inclusion of database rights in the license appear as an endorsement of those rights by CC.
• Proposed idea of including future rights held by licensor within scope of the license.
• To avoid allowing those who hold only obscure copyright-like rights to apply CC licenses, we could specify that license can only be applied by someone who also owns copyright. However, this raises problems where same rights - e.g., sound recordings - are considered neighboring rights in some jurisdictions and fall under copyright in others.

Treatment of moral rights in v.4: 4.01d1 is not intended to change the treatment from v.3 (international). Moral rights are waived or not asserted only to limited extent possible and necessary for licensee to reasonably exercise economic rights licensed.

Q. Is this the right approach to moral rights? Would it work in your jurisdictions? What would outcome be?

Africa:

• No specific feedback.

Arab World:

• Approach works with Lebanese law and likely other Arab countries with French copyright systems. In Lebanon, if you give someone permission to make an adaptation, you cannot later use your moral rights to prevent them from doing so unless the adaptation harms the author’s reputation.
• Current language is a bit confusing and does not specify what type of moral rights are at issue.
• Moral rights non-waivable in Egypt.
• In Egypt, authors also have a moral right to withdraw their works from publication.
• In Jordan, also have moral right of withdrawal but can also use it if you have a very serious reason for withdrawing your work.
• Language does not appear to contradict the law in any of the jurisdictions participating on the call.

Asia Pacific:

• Concern that removal of language from v.3 about not mutilating the work or harming author’s integrity will allow licensee to modify the work in a way that is prejudicial to the author’s moral right of integrity.
• Important to recognize that if licensor is not original author, the limited waiver or non-assertion of moral rights has no effect.
• Current wording of moral rights provision is very confusing. Better to leave moral rights intact.
• Keeping moral rights completely intact will mean licensees have very little, if any, right to make adaptations.

Europe and North America:

• Moral rights cannot generally be waived or licensed in Europe.
• Preference for recognition that moral rights exist and then including a simple non-assertion of moral rights to the extent those rights interfere with the operation of the license. This would comport with jurisdictions where waiver will be implied by the courts because licensor is granting the right to create adaptations.
• To increase understanding, should differentiate between economic and moral rights rather than copyright and moral rights.
• Central right at issue in CC licenses is the right of integrity. Might be helpful to call that out specifically when addressing moral rights in the license.
• If moral right of integrity were expressly retained, there would likely be confusion in the licenses that allow adaptations.
• Might make more sense to say licensor is authorizing the exercise of moral rights.
• Skeptical about mentioning moral rights at all. Language in draft 1 is probably okay though. In at least some countries, authorizing someone to create a derivative is not restricted by the moral right of integrity.
• When you authorize creation of derivative, you are inherently not asserting your moral right of integrity. Same for moral right of withdrawal where it exists.
• Agree that right of integrity is main focus, but full waiver of this right probably goes too far because licensor may still want to prevent negative uses of the work.
• May want to remove “reasonable” with regard to waiver because it is vague and leaves too much open to interpretation.

Latin America:

• Language in draft is good because it indicates the waiver does not apply in jurisdictions where waiver is not enforceable. A unilateral promise not to enforce rights is enforceable in most civil law jurisdictions, so it is good that the provision includes this as a fall back.

NonCommercial definition

No change from v.3 to v.4. We have included a defined term for “NonCommercial” but it uses language from prior versions and is not intended to change scope. We don’t want to change the definition without a compelling reason, both because of compatibility issues with prior versions of the licenses and so that we don’t veer from the expectations of NC licensors.

Q. Do people feel that changes to the NC definition should be considered? If so, what types of changes? What about clarifications outside the license text?

Africa:

• In favor of the “commercial rights reserved” proposal on the 4.0 wiki. It is a linguistic change rather than substantive change, but it would help in the commercial space with cultural works. The NC term is confusing, and replacing it with “commercial rights reserved” terminology would be more explanatory.
• Okay with NC definition as it is.

Arab World:

• NC is a really tricky issue, especially with the ad-supported model for content on the Internet. In proposals for clarifying the definition, it seems everyone says something different. Also, meaning of NC is constantly changing, so not sure what we can do to provide much more certainty.

Asia Pacific:

• Agree we should not change term, but could clarify what we mean by commercial outside of license text.
• One of the most frequently asked questions from the public is whether cost recovery is considered a commercial purpose.
• Not clear whether non-monetary exchange is considered a commercial purpose.

Europe and North America:

• The definition should not be changed because it is impossible to satisfy everyone.
• NC seems to be functioning well and people are generally accustomed to it.
• When there are disputes about NC, typically referring to the exact language in the current definition can resolve the issue when it is examined closely against the facts of the situation.
• Introducing clarifiers about NC would only introduce more confusion. (For example, nearly anything can be deemed “educational.”)
• There are many practical problems with changing the definition of NC, especially in terms of compatibility.

Latin America:

• Any definition will have problems. Best not to change existing definition without clear and robust arguments in favor of doing so.
• General guidelines about the NC clause may be useful.

Attribution

In v.4, we consolidated all attribution and marking requirements into one section and put them in list form. We also made clear that all information is required only when supplied by licensor and can be done in a reasonable manner. Last, we added a shortcut that allows licensees to include a URL to satisfy several of the requirements.

Q. Have we provided enough flexibility? Too much? Are there other requirements we can remove, or other shortcuts to add?

Africa:

• Thrilled with change because the list form is so clear. We usually spend so much time explaining how to attribute. This will make our work a lot easier.
• Like the idea of flexibility in attribution, especially to help with attribution stacking.

Arab World:

• From community perspective, it is best to make the requirements as simple and easy to follow as possible.
• Would be useful if we replaced specific attribution requirements with general statement that licensee must acknowledge author and source. Case studies and legal success stories would also be helpful.
• From a legal point of view, if we just say licensees must “acknowledge” the author and source it may not be sufficient. Need to make it clear they must identify the name of the author and source of the work.
• Should ensure that people can use pseudonyms if desired for attribution. Also, because links are the norm for indicating source in online environment, we should make a hyperlink sufficient if the reference has the relevant information.
• Minimal approach is desirable. Should mention minimum requirements with other information encouraged as norm.
• Would be useful if licensee can satisfy attribution requirements by providing link to one URI that gives all attribution information for history of the work.
• Providing name of author and source of work are sufficient to satisfy Lebanese moral rights.
• From community perspective, name and source are also sufficient.

Asia Pacific:

• Licenses need to account for specific attribution requirements of licensors.
• Changes proposed on 4.0 wiki seem to suggest changing the licenses to suit user practice, but perhaps focus should instead be on educating users to attribute properly.
• If attribution is too rigid, it may prevent some uses of licensed work down the road.
• Might consider mentioning moral rights in attribution section so that the public sees that the licenses are addressing moral rights.
• Will licensors be okay having their name replaced by a hyperlink?

Europe and North America:

• Not feasible to include too much information as part of attribution condition. Consider ways to reduce requirements.
• Consolidation and simplification of requirements in this draft is a big improvement.
• While requirements are improved, they could still be hard to implement for people who are not experts. Perhaps provide more guidance outside of the license.
• Concerned about attribution when combining licensed data.
• Concerned about imposing attribution requirement for data because moral rights in data generally do not exist.
• Would like to see set of licenses that allow licensors to waive attribution.
• Is there a method where licensor could dictate when attribution is required and when it is not? This could help eliminate the stacking problem.
• If requirement is overly simplified, there could be abuse.
• One idea is to allow licensees to point to one document that provides full history of all attributions over life of work as it is remixed.

Latin America:

• Because fulfilling the attribution requirements is a requirement that if violated results in termination, we need more flexibility. Consider softening termination clause because if this is a problem with attribution, it may be a problem with other license requirements as well.
• Attribution stacking needs to be addressed by including more information for licensees on how to deal with this problem. A technical solution to the problem would be even better.

Termination (and possible addition of cure period or materiality threshold)

As in prior versions, v.4 results in automatic termination upon breach by the licensee. On the 4.0 wiki and mailing lists, there have been some proposals for softening this provision. Because most disputes relating to CC licenses are handled amicably, automatic termination for any breach (whether or not intentional or egregious) seems harsh.

If CC changes course, there are two primary approaches that might be taken: (1) a materiality threshold; or (2) giving licensees a short window of time to cure the breach and reinstate their rights. (similar to the GPL)

Q. What do people think about changing the termination provisions? If in favor, which new approach do you prefer?

Africa:

• License should terminate only for fundamental breaches. License should have materiality threshold, as long as what is material is clearly outlined in license.

Arab World:

• Should research how civil law systems deal with termination to make sure it works.

Asia Pacific:

• Would encourage not changing termination unless we have clear evidence that change is necessary. Comes down to a tension between licensor and licensee interests. Perhaps a middle ground is to assume minor breaches will not be enforced as infringement.
• In favor of change to at least allow licensees to get new rights to use the work when they fix their violation. People often breach the requirements innocently.
• Urge care because license seems to be working. There are not a lot of enforcement actions brought, let alone under unjust circumstances. Would need to carefully analyze implications of change.
• Any creation of further uncertainty could be problematic.

Europe and North America:

• Opportunity to cure could work as long as license still terminated automatically.
• Reinstatement of rights may not be correct terminology because licensee is either in compliance with the license or infringing.
• Likes idea in principle. Worth pursuing further.
• Would need to be implemented cautiously, but like the approach generally.

Latin America:

• Agree we should soften termination. We should take this opportunity with version 4.0 to fix things.
• Once licensee fixes their breach, they should get their rights reinstated.
• Materiality threshold could be ambiguous, so we may want to specify what breaches are considered material and cause automatic termination. We could allow other types of breaches to be fixable. This would blend both proposed approaches.

Technical Protection Measures

This has historically been a controversial provision of the licenses. Licensees may not impose technological measures to restrict the ability of a recipient of the work to exercise the rights granted.

CC did not propose a change in draft 1 because we did not have enough information or input to make a formal proposal. Will expect to make a proposal in draft 2, and the current options under consideration are: (1) keep as is; (2) include a parallel distribution (can use TPM as long as modifiable version made available, too); (3) grant permission to circumvent TPM (or waive right to prohibit circumvention as in the GPL).

Q. Is there a compelling reason to change the TPM prohibition? Are there use cases that you are aware of?

Africa:

• This is a really tricky issue, especially in the education context. Schools like to use TPM because they try to monetize their content. Need to spend more time thinking about it.
• Does TPM include anti-piracy measures?
• Allowing circumvention seems to be more permissive and more in the spirit of CC. It would make the license more liberal.
• Worst option is to keep the TPM restriction. It is too restrictive. Sometimes the platform just automatically adds TPM, so the user has no choice if they want to distribute the CC-licensed material on that platform.
• Best option seems to be allowing people to use TPM and grant permission to circumvent. This allows people to use all of the different online platforms.
• Giving permission to circumvent would likely not be a problem under local law. It would also alleviate concerns about using CC-licensed content to lure people into locked platforms.

Arab World:

• Jordan has criminal anti-circumvention provision, so the waiver of circumvention approach could be problematic. Other countries that have signed free trade agreements with Europe or the United States probably do as well.
• Should think about how TPM restriction will affect coalition in music industry working to create infrastructure for copyright rights management. (http://www.theregister.co.uk/2012/05/21/creative_industry_bodies_copyright_single_framework/])
• Do not hear complaints about TPM restriction because most licensees do not know the requirement is there. A lot of people have no option but to upload to platforms that use DRM. For SA licenses, applying TPM would already violate license so not clear what purpose prohibition serves.

Asia Pacific:

• DRM is so ubiquitous that people need to be able to put CC-licensed content on platforms restricted by DRM. Asked questions about this issue by the public at least monthly. Not sure how to fix it, but needs to be addressed.
• Removing the restriction against TPM would go against CC’s philosophy. People can always ask licensor for permission if they want to use DRM platforms.

Europe and North America:

• Like the idea of adopting GPL approach to granting permission to circumvent. This is better than parallel distribution, which places an additional burden on licensees. However, does platform provider have right to prevent circumvention of TPM independently?
• If the circumvention provision won’t be enforceable everywhere, then we should use the parallel distribution approach. Could allow TPMs, parallel distribution and circumvention as alternative.

Latin America:

• Licensor is not often the one that can grant permission to circumvent TPM, so it is not clear how this approach would be workable.

Additional Terms (proposed)

4.0d1 contains a placeholder for possible inclusion of a provision that would allow licensors to include certain types of additional terms in the license. CC will include in the license the provision from v3 that reads: “You may not offer or impose any terms on the work that restrict the terms of this license or the ability of the recipient to exercise the rights granted.” (formerly Section 4a, with parallel language for Adaptations in SA licenses). Additionally, CC expects to include some provision that approximates the following provisions in v3.0: “This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.”

Possible provisions that could be allowed as an additional term include warranties, granting additional permissions and providing for alternative dispute resolution options.

Q. Does this seem like a useful provision? Are there other considerations (things people should or should not be allowed to add to license)?

Africa:

• Would be very useful if licensors could add an alternative dispute mechanism.
• This will be particularly helpful in developing nations. Will there be guidelines about what types of ADR mechanism can be used?
• Arbitration would be very helpful, but there should be guidelines so it is not a costly process. Many developing nations would probably have this same sentiment.
• Will licensors be able to add a choice of law provision as well? There is a wide gulf in what is allowed in different jurisdictions, so the governing law has a large impact. Uncertain how exactly the substantive law should be chosen, but it is an issue that should be addressed at some point. Need to find a middle ground.

Arab World:

• Would need to read proposed language very carefully.
• Would want to know more about what enforceability problems a provision such as this might cause.

Asia Pacific:

• Would be useful to allow arbitration since it is a fairly major trend commercially.
• Licensors can already add terms upon release, so is new provision necessary? Would also need to think through potential enforceability problems.
• Would create severe compatibility problems and make the licenses much more complex.
• Could consider addressing the TPM problem through this mechanism.

Europe and North America:

• Warranties should be allowed to be added through this provision.
• Could be useful for corporate licensors, but unlikely to be used by others. Need to be careful about allowing additional terms into the license.
• Should be careful to ensure that work can be used by downstream licensees under standard license without additional terms.
• Can see argument why ADR mechanism should be allowed as an additional term.
• In some cases, choice of venue requires permission of venue. Would prefer it as an additional term rather than standard term of license. Probably more useful for corporate users.
• Understanding law that applies to the license is more important than choice of venue.
• ADR mechanism should be optional not mandatory because it can be very expensive and sometimes unfair. Not supportive of having arbitration as the default.
• In some countries, it would be problematic to have arbitration or ADR in CC licenses. Probably best to keep as a separate agreement.
• ADR option could be abused, so probably best to limit application to specific contexts, if allowing it all.

Latin America:

• Not clear how this would work in practice.
• Licensor can already add extra permissions to the work.
• This provision could encourage licensors to change CC licenses, which could create incompatibilities. We need to keep as much uniformity as possible.
• Not a good idea. Seems to be a solution in search of a problem.
• Comes down to a policy choice between increasing uptake of CC licensing and compatibility between licenses. Favor increased adoption because this will, in turn, lead to more material being CC licensed.

Collecting Societies

4.0d1 treats collecting societies the same as in v.3, while simplifying the language. The right to collect royalties (individually or through voluntary or compulsory collecting scheme) is waived to extent possible and necessary to allow exercise of the rights granted. Those rights are reserved where waiver not possible and for uses outside of license grant.

Q. Any reason to change course?

Africa:

• The provision in v.3 is working fine as is. No need to change the treatment in v.4.

Arab World:

• In Lebanon, same collecting society as France, which already has a relationship with CC.

Asia Pacific:

• Comfortable with leaving it as written in draft one.

Europe and North America:

• New language is much better and covers countries where there are non-waivable schemes. When collecting societies collect royalties on behalf of non-members, licensors should be able to obtain that money. (Note: CC is undertaking additional research on the existence of such requirements.)
• Maintain the same structure, collecting societies are accustomed to the existing language and are engaged in pilots that account for the current definition of NC.

Latin America:

• No specific feedback.

Other issues raised

Asia Pacific:

• Concern about lack of jurisdiction clause.
• Want to ensure definition of “Share” captures hard copy as well as electronic form.
• Consider re-inserting well-understood terms from v.3 - “distribute,” “publicly perform” - into definition of “Share.” Will ensure everything is covered.

Arab World:

• Many jurisdictions have different terms for copyright and neighboring rights. How do we deal with issue in the term of the license?
• Term “You” is difficult to translate into Arabic in a legal document. Would be useful to switch to “Licensee.”
• Other terms may cause problems in Arabic, such as “Share” (especially as it relates to “ShareAlike”).
• Problematic that no applicable law is specified. In some jurisdictions, have to be specific about reach of copyright law being licensed - range, geographic limitation, purpose.
• Would be very useful if lawyers from each affiliate team provided a list of what rights exist in their jurisdictions. This will help licensors and licensees understand what is being licensed when they apply the international license in their jurisdiction.

Europe and North America:

• Proposal made to specify choice of law for contractual and consumer law aspects of the license. Could opt for law from jurisdiction where licensor resides or has its headquarters. This proposal does not involve specifying the copyright and related law that applies, which would instead be determined by private international law.
• Would be useful to avoid any circular definitions within the license.
• At some stage in the drafting process, every phrase should be revisited to make sure what is included is precisely what is necessary and not more.

Latin America:

• In some jurisdictions in Latin America, exhaustion of copyright is not tied to the right of distribution. The license needs to include it explicitly, or licensed works may avoid limitations on exportation and importation.
• Collecting societies will resist the language in the draft about CC licenses being “perpetual.” Perhaps there is a way to word this in a different way to help accommodate collecting societies but stil being clear about how it works.
• Regarding proposal on 4.0 wiki to drop BY-NC from the suite because it is too similar to BY-NC-SA, we should retain both options regardless of technical details. BY-NC does open options for licensees because with BY-NC-SA they will feel compelled to share.