Difference between revisions of "4.0/License subject matter"

CC’s international suite of licenses are built atop international copyright law, granting permissions to make uses of work that implicate copyright and related rights upon certain conditions. The precise scope of those rights varies depending on the copyright law of the jurisdiction where the license is operating. Therefore, regardless of where the rights holder resides, the scope of the license varies depending on where the work is used.

However, there are certain rights very similar to copyright that are not currently included in the scope of the international license regardless of where the license operates. One such set of “copyright-like” rights excluded from the license scope are sui generis database rights (SGDR), and there may be others.

Objective = to make the license grant broad enough to grant all “copyright-like” rights necessary to use the licensed work worldwide, but narrow enough to keep other rights regimes separate - such as patent, trademark, publicity rights, and privacy.

Sui generis database rights (SGDR)

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

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

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

1. If someone applies the unported license to a database in the EU or other countries where SGDR exist, arguably they are not granting licensees the right to do things that implicate SGDR. Licensees may not realize they need extra permissions to use a substantial portion of the licensed database.
2. Some major potential license adopters, including the UK government, have indicated they are not able to use CC licenses because our licenses do not adequately address SGDR.

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

• SGDR 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 SGDR or that would have the effect of encouraging compliance with license conditions in jurisdictions where SGDR 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 SGDR in 4.0

After discussion at the Global Summit in Warsaw, CC is moving toward including SGDRs in the license on the same terms and conditions as copyright and related rights. Therefore, the following proposal is the intended course of action at this time, but we welcome further debate and discussion.

• License SGDR on par with copyright. The licenses currently cover copyright and related rights. This option would require amending the legal code to license SGDR in the same manner.

Alternative proposal

• License SGDR and waive conditions. This would effectively put the unported license in line with the EU ports with respect to SGDR. The license would grant permission to do things implicating SGDR, but the license conditions would not apply to those uses unless copyright was also implicated.

Defining the scope of the license

As noted above, SGDR are likely not the only “copyright-like” rights not currently covered by the international license. Currently, the definition of “work” in the 3.0 international license is:

"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.

In order to make the international license as generally applicable as possible, the subject matter of the license may need to be broadened in a way that accounts for variances in local law without attempting to cite every applicable statute worldwide. However, CC must tread carefully to ensure that the subject matter does not cross into other forms of intellectual property like trademark law.

Proposals for defining license subject matter in 4.0

Please insert specific proposals for defining the subject matter of the license here. Each proposal should get a sub-heading, a brief description, followed by a list of pros and cons.

Related debate

We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals.

[HQ will provide links to related email threads from the license discussion mailing list here]

Relevant references

Presentation by Judge Jay Yoon at the CC Global Summit

CC blog post dated 2/1/11

Treatment of SGDR in 3.0