Difference between revisions of "4.0/Sandbox"

This page is designed as a gathering place for suggestions from the community. If you have an idea for an issue that is not yet addressed in one of the issue pages linked from the 4.0 page, please follow this process:

1. Review the existing issue pages to see if your new idea would fit on an existing page. If so, feel free to add it yourself.
2. Please refer to the Legal Code Errata^[1] page to see if your concern is addressed here.
3. If the issue is not already addressed, please refer to the License Versions page to review issues debated in prior versions and the CC license discuss archives.^[2] If you want to re-open a conversation on an issue or proposal debated in a prior versioning effort, please summarize and link to that prior discussion, indicating why the issue ought be revisited.
4. If your issue is not adequately covered, you can't find a proper home on these pages, or you would prefer that HQ decide where it best fits on the wiki, please add the issue in the relevant section below.

Moral rights

There are two basic issues:

• Current moral rights language is complicated, difficult to understand -- see the section 4(d) current language:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.

In ported versions of the license, this language has progressively evolved since 3.0 was first published in 2007, becoming less complicated but also introducing a variation from the original treatment. A standard incarnation of moral rights in the more recent (2010 - present) ported licenses is, "Moral Rights remain unaffected to the extent they are recognized and not waivable by applicable law."^[3] This phraseology implies a waiver to the extent permitted (where they exist) for any use implicating copyright, whereas the language in the international licenses conveys such rights are waived (or will not be asserted) where permitted, to the extent a licensee makes an adaptation.

• Some fear 4(d) causes licensees to agree to more restrictions -- how expansive is "permitted by applicable law" in removing agreement to restrictions -- and have encouraged use of US ports eg https://creativecommons.org/licenses/by-sa/3.0/us/legalcode which do not contain 4(d) at all or unported with a waiver of 4(d).

This was previously an issue during discussion of Wikimedia migration to BY-SA, nearly prompting a version 3.01 in order to address. See the discussion of possible changes to address at Version_301#Section 4(f), which should be a starting point for 4.0 proposals.

Technical protection measures

In Version 3.0, there is TPM language in 4(a) and similar in 4(b) in the SA licenses:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

This has been controversial for a long time, potentially unnecessarily (and paradoxically, given anti-DRM clause meant to protect) limiting users' freedoms and complicating use of CC-licensed material in widely used platforms that have DRM built in. The addition of a "parallel distribution" (of non-TPM version) was discussed for Version 3#DRM, but decided against.

Some think a more elegant, freedom-compatible approach is to be found in GPLv3:

3. Protecting Users' Legal Rights From Anti-Circumvention Law.

No covered work shall be deemed part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.

When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.

See explanation and summary of some discussions leading to this clause in the GPL here.

Summary of potential 4.0 change -- drop prohibition of effective technical protection measures, add permission to circumvent, possibly using GPLv3's well vetted language as closely as possible.

Disclaimer of warranties and related issues

Please include a description of the issue(s) with links to relevant references where applicable.

Collecting societies

Please include a description of the issue(s) with links to relevant references where applicable.

Choice of law and enforcement issues

Please include a description of the issue(s) with links to relevant references where applicable.

Drafting language and style

Please include a description of the issue(s) with links to relevant references where applicable.

ShareAlike condition

There are roughly three issues that have been discussed for years that could potentially be addressed.

Ideally, addressing one or more of these could increase clarity of relevant CC licenses, and increase range of and differentiation within CC license suite.

1. ShareAlike scope

Effectively, this has been treated as identical to potentially tweaking the definition of adaptations vs collections.

• Version 2.0 added "For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License." (Please discuss this particular clarifying language on the License subject matter page.)
• Many have wanted something similar added clarifying when use of an image creates an adaptation/derivative. This was visited especially during discussions with the Wikimedia community, leading to no immediate change, but an assurance that the scope of BY-SA's copyleft would only be increased, if changed at all in the 3rd point of CC Attribution-ShareAlike Intent

Relatedly, it has also been pointed out that CC license definitions of work/adaptation/collection are somewhat hard to read.

Some possible proposals for 4.0 related to SA scope:

• Make no changes.
• Make work/adaptation/collection definitions easier to read, but strive to not make any effective change
• Expand scope of adaptation (thus SA) specifically for some class of use of images, analogous to synching added in 2.0.
• A more aggressive expansion of SA, including some collections, except those that are mere aggregations (see GPL)

2. Source-requiring SA

(Note that scope and whether source required are independent of each other.)

Some would like a copyleft for creative works that requires not just sharing adaptations under the same license, but making preferred form for modification available, as the GPL does for software. FDL includes a weaker requirement of providing copies in "transparent" formats. Especially the former may be too far for BY-SA to go (but costs/benefits could be listed to see). Could possibly be addressed via compatibility, see next.

3. Compatibility with other copyleft licenses

Directly related to the interoperability goal of 4.0. The following licenses have been discussed at various points, regarding compatibility with BY-SA:

• Free Art License
• Free Documentation License
• GPL (unique among these, could only be one-way with BY-SA as donor; would address desire for source-requiring license, long-term trend toward more mixing of "code" and "content" in ways beyond former accessing latter)
• Open Database LIcense (ODbL)

Some things to consider in 4.0 process:

• What could be done to bring BY-SA into better alignment technically with these other licenses where they are in the same spirit?
• Should explicit compatibility with any of these be aimed for? In theory this could be a post-4.0 discussion assuming compatible licenses hook remains, but in practice, if compatibility is to be possible, 4.0 changes should be considered in that light
• Discuss with stewards of each of above licenses, with regard to BY-SA 4.0, future versions of their licenses, alignment, and explicit compatibility statements
• Similar to above, discuss with other stewards possibility of agreeing on/promoting common license text

NoDerivs condition

ND has not been nearly as discussed as NC, but it has the same problems of non-freeness and probable over-use. Some of the NC proposals (eg rebranding, dropping, or only keeping one instance of) have ND analogues that ought be separately and thoroughly evaluated.

Other issues for 4.0

Please include a description of the issue with links to relevant references where applicable.

Notes