Difference between revisions of "4.0/License subject matter"

Summary

Treatment in drafts

Defining the licensed rights

As noted above, CC licenses were initially designed to address copyright. In version 3.0, the definition of “work” was expanded to include many neighboring rights:

"Work" means the literary and/or artistic work offered under the terms of this License including without limitation any production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression including digital form, such as a book, pamphlet and other writing; a lecture, address, sermon or other work of the same nature; a dramatic or dramatico-musical work; a choreographic work or entertainment in dumb show; a musical composition with or without words; a cinematographic work to which are assimilated works expressed by a process analogous to cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a photographic work to which are assimilated works expressed by a process analogous to photography; a work of applied art; an illustration, map, plan, sketch or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram; a compilation of data to the extent it is protected as a copyrightable work; or a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work.

As one of the goals for version 4.0 is to craft a license suite that allows use of the work consistent with the expectations of both licensors and licensees (and rights closely related to copyright may impede that), the permissions granted by the licenses may need to account for other laws that grant copyright-like rights in a particular subset of jurisdictions (such as sui generis database rights discussed below). "Copyright-like" rights are those that overlap with the exclusive rights of copyright and are exclusively held by the same person as the copyright.

What should be the limiting principle for choosing which rights to license in 4.0 if more than copyright? How should CC identify and then account for such rights in the licenses recognizing that citing every such statute is likely neither feasible nor advisable? How do we ensure the definition covers rights held by the licensor and not third parties (e.g., publicity rights), or rights that are held by the licensor but not related to or overlapping copyright (e.g., trademark)?

Considerations regarding scope of license; other copyright-like rights

Please add other important considerations to this discussion here. In particular, please help CC identify those exclusive rights that exist in your jurisdiction or region that are closely related to, or could interfere with one's ability to exercise, copyright and neighboring rights as expected by licensors or licensees.

• Rights that do not exist yet. If in 2025 another copyright-like (gained by creating some fixed expression, not an idea or 3rd party right) right is established, licensees using 4.0-licensed works would already have the permissions necessary to continue using as they had.
• Catalogue rights These rights are very similar to database rights and often overlap with them. Section 49 of the Finnish Copyright Act is one articulation of these rights. This issue was raised on license-discuss.
• Semiconductor mask rights and design rights. As suggested on license-discuss.

Sui generis database rights (SGDRs)

In their current form, CC licenses do not require attribution or compliance with other applicable license conditions where use of a licensed work triggers SGDRs and not copyright.

In version 3.0 of the licenses, CC attempted to harmonize treatment of SGDRs worldwide by neutralizing those rights in jurisdictions where they existed. This was done by explicitly waiving the license conditions with respect to SGDRs in licenses ported to the laws of jurisdictions where SGDRs are granted if only SGDRs are implicated. The international license and ported licenses in jurisdictions without SGDRs do not address those rights directly. The effect of this differing treatment is as noted above - uses of licensed works that only implicate SGDRs do not require compliance with the license conditions.

CC’s treatment of SGDRs has been criticized for the following reasons:

1. If someone applies an international license to a database that has SGDRs protection, there is a possibility they are not granting licensees any rights to use the database in a way that implicates SGDRs.^[1] Licensees may not realize they could need extra permissions to use a substantial portion of the licensed database, an exclusive right granted database makers in the EU and a few other jurisdictions.
2. Some major potential license adopters, including the UK government, have indicated they are not willing to use CC licenses because our licenses do not affirmatively license SGDRs on par with copyright (i.e., without waiving conditions when only SGDRs exist).

Regardless of whether CC begins to license SGDRs on the same terms as copyright, there is widespread consensus within the CC community on a few basic concepts:

• SGDRs are bad policy and have not proven to garner the economic benefits they were designed to achieve. Accordingly, CC needs to be careful not to do anything that would be seen as an endorsement of SGDRs or that would have the effect of encouraging compliance with license conditions in jurisdictions where SGDRs do not apply.
• The ported and unported licenses should grant the same permissions to licensees. The differing treatment among EU ports and the unported license is sub-optimal and may cause confusion.

Proposals for addressing SGDRs in 4.0

After discussion at the Global Summit in Warsaw, CC intends to license SGDRs on the same terms and conditions as copyright and neighboring rights absent yet-to-be-identified, unacceptable consequences. Therefore, the following proposal is the course of action CC is pursuing at this time, though we welcome further debate and discussion. Please add your input on the pros and cons of the proposals identified.

SGDR Proposal No. 1: License SGDRs on par with copyright. The licenses currently cover copyright and neighboring rights. This option would require amending the legal code to license SGDRs in the same manner. To be clear, just as the license currently operates with respect to copyright and neighboring rights, a license of SGDRs would only take effect in jurisdictions where such rights exist.

• Pros:
  • Would ensure that licensees are not required to seek extra permissions to do things implicating SGDRs
  • Would enable further adoption in jurisdictions where SGDRs exist
• Cons:
  • Without careful drafting and education, creates potential to encourage compliance with license conditions where SGDRs do not exist
• Other comments:
• Treatment in 4.0 d.1: Incorporated in draft by including database rights in Applicable Copyright and Neighboring Rights definition and adding reference to databases in license grant.
• Treatment in 4.0 d.2: Database included in Copyright-like Rights definition.
• Treatment in 4.0 d.3: Created separate definition for Sui Generis Database Rights and made several changes to the treatment of those rights. More detail available on the Sui Generis Database Rights page.
• Treatment in 4.0 d.4: Consolidated provisions about Sui Generis Database Rights in Section 4. More detail available on the Sui Generis Database Rights page.

SGDR Proposal No. 2: (alternative proposal) License SGDRs and waive conditions. This would effectively put the unported license in line with the 3.0 EU ports with respect to SGDRs. The licenses would grant permission to use works implicating SGDRs (where SGDRs apply per applicable law only), but the license conditions (BY, NC, NC and/or SA, as applicable) would not apply to those uses unless copyright was also implicated.

• Pros:
  • Harmonizes treatment worldwide by neutralizing SGDRs where they exist
• Cons
  • More confusing for licensees who then have to understand when SGDRs are implicated and copyright is not
  • Many licensors want to be able to require attribution where SGDRs are implicated
• Other comments:
• Treatment in 4.0 d.1: Not adopted.
• Treatment in 4.0 d.2: Same.
• Treatment in 4.0 d.3: Same.
• Treatment in 4.0 d.4: Same.

SGDR Proposal No. 3: Do not include SGDRs in the CC licenseses; instead encourage the use of open data licenses.

• Pros: Avoids the issue of how SGDRs are different than Copyright protection.
• Cons: Can prevent CC licenses from being used for creative works that include data.
• Other comments:
• Treatment in 4.0 d.2: Not adopted. One of the main reasons for the 4.0 version of CC licenses is to address the issue of rights holders who want to use CC licenses but can't because of the absence of addressing SGDRs.
  • See more discussion on this thread from license-discuss.
• Treatment in 4.0 d.3: Same.
• Treatment in 4.0 d.4: Same.

SGDR Proposal No. 4: Cover Non-copyright rights like SGDR with general language later in grant instead of in a definition that is used in the grant language; maybe by adding general coverage language in Section 3 saying that the license does cover any similar rights including SGDR.'

• Pros: May lessen risk of accidentally importing SGDR to countries that don't have them.
• Cons: Makes the license less clear in what it is licensing.
• Treatment in 4.0 d.2: Proposed after d.2 published.
• Treatment in 4.0 d.3: Not adopted. We have included a separate definition for SGDRs but we have been careful to make it clear that those rights may not apply to all licensees.
• Treatment in 4.0 d.4: Same.

Automatic localization of the license

Regardless of what rights are ultimately covered by the 4.0 license, the scope of the rights being licensed (including the exceptions and limitations that apply) will continue to vary depending on applicable law.

In the international license, the definition of "work" is qualified by Section 8(f) ^[2], which explains that the licensed rights and subject matter take effect according to the national implementation of the treaty provisions in the jurisdiction where the license is enforced. This provision is tantamount to an “automatic localization” of the international licenses, whereby the licenses operate differently in various jurisdictions depending on national laws.

There are, however, several instances in the licenses where we arguably depart from this principle, at least under the laws of some jurisdictions. The following is a non-comprehensive list of provisions in the international license that could be construed as modifying the default provided by applicable law.

• Definition of "adaptation" – ‘’[A] work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in time-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.’’ ^[3]
• Definition of "collection" – ‘’A work that constitutes a Collection will not be considered an Adaptation (as defined above) for the purposes of this License.’’^[4]
• Section 3(e) – ‘’The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats.’’

In the 4.0 international licenses, should we remove any of these provisions that potentially modify applicable law in some cases? Alternatively are there other clarifying provisions we should consider adding in order to increase certainty for licensors and licensees as to matters left to interpretation under applicable law?

Note: A different but related proposal about clarifying language for the NC definition is included on the NonCommercial page.

Considerations regarding how the license operates with respect to applicable law

Please add other important considerations to this discussion here.

• Relying on applicable local law may make CC licenses dysfunctional in a global context. Potentially applicable laws are the law of the countries of residence of each creator or contributor of a work, the law of the countries from which the work or revisions of a work were submitted ("uploaded"), the law of the countries in which the work is being disseminated ("publisher, printer, distribution chain, server location"), the law of the country whose population is being addressed as the audience. In a collaborative Work such as Wikipedia, these can result in dozens of applicable laws, and the lowest common denominator must be determined before a work can be safely re-used. This can amount to prohibitive effort. Contrary to the assumptions above to remove specifications, CC 4.0 should instead increase the specifications, to increase the scope in which a work can be safely re-used based on the license rather than local specifications.
  • NOTE: The basic (and widely accepted) rule is to deem the law of the jurisdiction in which the unauthorized use occurred the "applicable law" for purposes of copyright. For example, if a work created in Country A is infringed in Country B, the laws of Country B will typically decide questions such as whether the use falls within an exception or limitation to copyright, or whether the work is actually copyrightable subject matter.

• Pros and cons of CC's current approach of tracking applicable law.
  • The biggest benefit is that it meets the general expectations of people using the licensed works because it mirrors the way copyright law is applied internationally. This is especially important in the case of standardized licenses like CC licenses. It also respects the principles of copyright territoriality and national treatment. For all of these reasons, it helps to make CC licenses enforceable worldwide.
  • The downside is it can create uncertainty for licensors and licensees. It is not always easy to determine where infringement occurs, especially in the online context. In fact, infringement may occur in more than one jurisdiction.

• Choice of law provisions. A handful of ported licenses have dealt with this issue by including a choice of law provision. While this arguably increases certainty for licensors and licensees, it is problematic and is something CC has attempted to avoid as a matter of policy. Even if the licensors who opt for a particular ported license have a connection to the jurisdiction whose law applies (which is not necessarily the case), once the work is placed online anyone in the world can use it. If the work is released under a license with a choice of law provision, by using the work a licensee may unsuspectingly be subjecting to an interpretation of the license (including terms like whether a use is prohibited or not) based on the laws of a jurisdiction on the other side of the world. This seems unfair. There is also no guarantee a choice of law provision will be enforced in court, especially in a non-negotiated license like those stewarded by CC. This erodes the certainty arguably imposed by including the provision in the first place.

• ShareAlike scope. Proposals relating to clarifying the definitions of "adaptation" and "collection" of the SA condition in this regard are further discussed on the 4.0/ShareAlike page.

Proposals regarding how the licenses operate with respect to applicable law

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

App. Law Proposal No. 1: Modify Section 8(f) (or its equivalent) to clarify intended interpretation of license terms and conditions.

• Pros:
  • Licensees and licensors will better understand how CC licenses are designed to work.
  • Mirrors the way copyright law is applied internationally, which helps meet people's expectations.
  • Respects international copyright principles of territoriality and national treatment.
  • Helps ensure that CC licenses are enforceable worldwide.
  • Does not change anyone's rights or obligations under copyright law.
• Cons:
  • Leaves some uncertainty for licensors and licensees about what law will be applied.
• Other comments: If we do this, it raises the question of how to deal with the license definitions.
  • Option 1: tie all definitions directly to applicable law
  • Option 2: include license definitions that serve as a baseline, with applicable law used to expand but never restrict that baseline
  • Option 3: some version of option #1 that includes more clarifying provisions that explicitly supplement or override applicable law with respect to definitions that are particularly critical to the operation of the license
• Treatment in 4.0 d.1: The concepts of v. 3.0 Section 8(f) have been integrated into the newly-defined term, Applicable Copyright and Neighboring Rights. However, the definition does not currently mention Berne or other international treaties specifically (or national implementations thereof). Further input is welcome on whether other concepts from Section 8(f) in 3.0 need to be conveyed in the license or, alternatively, need not be contained in the license because they apply regardless (but could be explained separately).
• Treatment in 4.0 d.2: Applicable Copyright and Neighboring Rights term was removed. Current draft is silent on choice of law to allow principles of private international law to prevail.
• Treatment in 4.0 d.3: Included a new interpretation provision explained in detail here.
• Treatment in 4.0 d.4: Removed interpretation provision. Full explanation here.

App. Law Proposal No. 2: Creative Commons should clarify as many cases as possible to achieve a globally usable unported version.

• Pros:
  • Increases clarity for licensors and licensees.
• Cons:
  • Creates potential for conflict with applicable law. In so doing, it may mean imposing rights and obligations above and beyond what is otherwise required under applicable law.
  • May be hard to find consensus about what issues deserve clarification and what particular outcome should be for that issue.
• Other comments: This does not mean that the license makes pretense that these clarifications are complete; it should continue to refer to local law, but specify more cases to achieve safe re-usability. This will be a long term process, one that started in previous versions and should not be reversed by removing clarifications. CC is in a unique advantageous position if it calls upon the experiences of porting into local jurisdictions and tries to fix as many ambiguous or differing positions. Basing CC 3 on the Berne Convention was a major positive step. Adding as many clarifications as possible to CC 4 could be another step.
• Treatment in 4.0 d.1: In this draft, we have only identified certain types of uses that have been specified in 3.0 as being either an Adaptation/derivative, or not. We encourage specific proposals for other use specific cases that would provide clarity and harmonization where rights systems may differ and where licensors and licensees seek clarity. Keep in mind that for the SA licenses, modifications that constitute Adaptations trigger the SA condition. Any new proposal for contracting Adaptations (or not) will be scrutinized carefully.
• Treatment in 4.0 d.2: Definition of Adaptation is further refined.
• Treatment in 4.0 d.3: Definition of Adaptation further refined, but still intended to track applicable law.
• Treatment in 4.0 d.4: Same.

App. Law Proposal No. 3: Add choice of law provision specifying that applicable law is law in jurisdiction where licensor has its principal place of business, unless otherwise specified by licensor.

• Pros:
  • Increases clarity for licensors and licensees.
• Cons:
  • Potentially unfair to licensees on the other side of the world.
• Treatment in 4.0 d.2:
• Other comments: See specific proposal on mailing list here.
• Treatment in 4.0 d.3: Not adopted. Included a new interpretation provision explained in detail here.
• Treatment in 4.0 d.4: Removed interpretation provision. Full explanation here.

Please add other applicable law 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.

• license-discuss thread about adding clarity to license text vs. relying on applicable law
• rationale for CC's current approach as summarized on license-discuss

Relevant references

Please add citations that ought inform this 4.0 issue below.

1. Presentation by Judge Jay Yoon at the CC Global Summit on 17 September, 2011: "Creative Commons Licenses and Databases"
2. CC blog post dated 1 February, 2011: "CC and databases: huge in 2011, what you can do"
3. CC memorandum dated 15 August, 2007: "On the treatment of sui generis database rights in Version 3.0 of the Creative Commons Licenses"
4. CC resources about licensing data and databases: Frequently asked questions about data
5. Presentation by Massimo Travostino at the CC Global Summit on 16 September, 2011: "CC 4.0: building a global license suite"
6. Choice of Law in Public Licenses: examples of how other public licenses handle applicable law

Notes