Difference between revisions of "4.0/Treatment of adaptations"

Licensing adaptations

When a licensee creates an adaptation of a CC-licensed work, he is required to release adaptations under the same license if the original work is licensed with a ShareAlike condition. But if the the original is licensed under CC BY or CC BY-NC, there is no express requirement to license adaptations under particular terms and conditions. CC’s FAQ state that adaptations must be released under a license at least as restrictive as the original, but this obligation is not explicit in the license.

Rather, to create an adaptation of a work licensed CC BY, the license says the adapter must attribute the original work, identify that his new work is an adaptation, and include the URI for the license under which the original is released. If the creator of the adaptation complies with these conditions, he may believe he is free to release his adaptation under any license, including CC0, or even reserve all rights under copyright.

Similarly, to create an adaptation of a work licensed CC BY-NC, the license says the adapter must meet the same requirements as BY, but also avoid using the original work for commercial purposes. If the creator of the adaptation complies with these conditions, including using his adaptation for non-commercial purposes only, he may believe he can license his adaptation without the NC condition.

CC’s license text has been criticized on this point for the following reasons:

1. Because the license text does not explicitly dictate how adaptations must be licensed in CC BY and CC BY-NC, it is open to an interpretation that allows adaptations to be released under a less restrictive license, which may contradict the intentions of licensors.
2. If adaptations are released under a different license than the original, it complicates the license obligations of downstream users as explained in detail below.

Proposal for clarifying how adaptations may/must be licensed in 4.0

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

Adaptations Proposal No. 1: Add explicit requirement to BY and BY-NC stating that adaptations of licensed work must be released under a license with at least the same conditions as the original work.

• Pros:
  • This would likely conform to most licensors' expectations and assumptions about how the licenses work.
• Cons
  • It would prevent licensees from releasing their easily-separable adaptations under less restrictive terms, which could negatively impact the commons.
• Other comments:
• Treatment in 4.0 d.1: Not addressed in initial draft (only BY-NC-SA is currently under discussion). We encourage further input on this point during the first public discussion period.
• Treatment in 4.0 d.2: Same.
• Treatment in 4.0 d.3: Explicit clarification made that adaptations may be made under any license where it is possible to comply with both licenses. This will be accompanied by explanatory messaging around best practices for reuse, which recommend following the guidance in this proposal even though the strict requirements aremore flexible.

Adaptations Proposal No. 2: Drop BY-NC from the license suite, requiring licensors who want to prohibit commercial use to opt for either CC BY-NC-SA or CC BY-NC-ND.

• Pros:
  • This would prevent any confusion about how NC adaptations are supposed to be licensed.
• Cons
  • BY-NC licensors may not care how adaptations are released. If they did, they would likely use BY-NC-SA. Therefore, we may be imposing obligations on licensees that are unintended and unnecessary.
• Other comments:
• Treatment in 4.0 d.1: Not addressed. Further input needed.
• Treatment in 4.0 d.2: Same.
• Treatment in 4.0 d.3: CC will be keeping NC in the license suite as is. See more detail at NonCommercial.

For a proposal to retain flexibility for those licensing adaptations of CC-licensed work, see Adaptations Proposal No. 6 below.

License obligations of downstream users

As explained above, when someone creates an adaptation of a CC-licensed work and licenses it, the license on the adaptation only covers the adapter’s contributions and does not extend to the original content. To the extent the original work remains distinguishable in the adaptation, the original is licensed to the downstream user directly from the original licensor. In other words, the person using the adapted work is the licensee under two separate licenses -- one from the adapter with respect to the new elements (i.e. the adaptation), and one from the original creator with respect to the original.

This creates a number of complications:

• definition of “work”: because CC licensors are not obligated to identify exactly what “work” they are licensing, users of the adapted work may not be able to determine what elements of the literary or artistic work are original to the adapter
• attribution stacking: the user of the adapted work must attribute the licensor of the adaptation and the licensor of the original work to the extent she uses the work in a way that implicates the copyright in both
• conflicting obligations: if the adaptation is licensed under a different license than the original work, the user of the new work may be subject to conflicting license obligations when using the adapted work

Proposals for simplifying license compliance in 4.0

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

[Note: these proposals are not necessarily mutually exclusive]

Adaptations Proposal No. 3: Require licensors of works that are adaptations of pre-existing works to include a clear notice that the license to the original work may also apply to those who use the adaptation.

• Pros:
  • This would help alert licensees of adaptations to their potential obligations under prior licenses.
• Cons
  • Licensors are already required to include license notice, so this may be redundant.
• Other comments: Rather than imposing another obligation on licensors, we could build better notice into the license text itself.
• Treatment in 4.0 d.1: Incorporated change.

Adaptations Proposal No. 4: Add explicit requirement to all licenses stating that adaptations of licensed work must be marked to identify changes and additions to the original work.

• Pros:
  • Licensees of adaptations would then have notice about what license obligations apply to what portions of the whole.
• Cons
  • This may not be practical in many (or even most) situations.
• Other comments: Might be better as part of best practices guide. See Adaptations Proposal No. 6 below.
• Treatment in 4.0 d.1: While we have retained the obligation to indicate that the work has been changed, we have not added a further requirement to mark changes. This obligation is onerous and may well be impossible depending on the type of Adaptation created, possibly discouraging remixing and adaptation of the work as intended by the licensor.

Adaptations Proposal No. 5: Require licensors of works that are adaptations of pre-existing works to copy/paste (or otherwise specify) attribution requirements for the original works in a fixed location (to ease compliance by licensees with all applicable licenses).

• Pros:
  • Might improve attribution compliance by downstream users.
• Cons:
  • Many times the attribution requirements for the original works will not be available, or this requirement will otherwise be impractical.
• Other comments:
• Treatment in 4.0 d.1: Not incorporated. More suitable for a best practices guide rather than as a strict requirement of the license itself given automatic termination of the license as a consequence of any failure to comply. Would make it harder and more complicated to apply; more room for inadvertent violations with termination as consequence.

Adaptations Proposal No. 6: Clarify and amplify the status of adaptations within the license text without adding any new requirements to the license; at the same time publish a best practices tutorial note explaining the nature of adaptations and highlighting the need to call out all applicable licenses when publishing an adapted work, so that users are made aware of all the conditions that apply (not just those related to the adaptation).

• Pros:
  • Will provide a guide to those who are especially concerned with getting it right, but will not impose burdensome obligations generally.
• Cons:
  • Only the most conscientious licensors will comply, so this may not have much effect.
• Other comments:
• Treatment in 4.0 d.1: Revisions intended to clarify and amplify the status of Adaptations in the license text have been included. Best practices to be revisited at a later date.

Adaptations Proposal No. 7: Consider allowing sub-licensing, at least for adaptations created under BY-SA, but possibly for a wider range of uses.

• Pros:
  • It reduces the burden for users of a CC-licensed work when a work is adapted multiple times. If sublicensing is allowed, one does not have to consider all different CC-BY-SA licenses a work is under. Some of the licenses may be in another language, such as Japanese or French. If a potential user of a work does not have to read multiple license and just read one, that is a plus.
• Cons:
  • We do not want to allow people to sub-license original works under different terms than the original license, which means we could not allow sub-licensing under non-SA licenses. Allowing sub-licensing under some licenses but not others increases complexity.
  • Even if we limit sub-licensing to CC BY-SA, some licensors may not want their works sub-licensed under a later version of CC BY-SA.
  • This may have negative effects on enforcement of the original copyright owner's rights. The licensee of the adaptation could rely on the sub-license as a defense to infringement.
• Other comments:
  • The CC-BY-SA licenses are such that content under a version 2.0 cannot be used under the terms of CC-BY-SA 3.0. That means a derivative of a CC BY-SA 2.0 work cannot wholly be released under CC BY-SA 3.0. The same thing could happen between BY-SA 3.0 and 4.0. It is too inconvenient for potential users of the adaptation if there are two or more licenses to follow for different parts of a work.
  • NOTE: Beginning with Version 2.0 of CC BY-SA, the license states explicitly that an adaptation may be released under a later version of CC BY-SA. In other words, if you create an adaptation of a CC BY-SA v.2 work, you may release the adaptation under CC BY-SA v.3. This will also be the case with Version 4.0. Also, it is important to remember that any work that involves a remix of two or more CC-licensed works is subject to more than one CC license. The license always follows the work. See the explanation at the top of this page for more detail.
  • NOTE2: However, when a work under CC-BY-SA 2.0 is used to create an adaptation, and the adaptation is released under CC-BY-SA 3.0, it is not that the whole of the adaptation is usable under CC-BY-SA 3.0. It is more like a "blended" state of licenses - the parts of the adaptation inherited directly from the original work is usable under CC-BY-SA 2.0, and not under 3.0, whereas other parts of the adaptation is under CC-BY-SA 3.0. This is a direct consequence of not allowing sublicensing.
  • NOTE3: But this is the case with all adaptations of CC-licensed works, not just those using different versions of the license. See above for more explanation.
• Treatment in 4.0 d.1: While reasons for considering this proposal have been articulated, we have not addressed it in this initial draft. Further input is needed before considering such a fundamental change in the operation of the licenses. We encourage those interested in such a proposal to articulate use cases where sublicensing would be beneficial, as well as any limitations on such a permission.

Adaptations Proposal No. 8: Allow sub-licensing solely to the extent necessary for a licensee to post CC-licensed third party content on an online platform.

• Pros:
  • This would allow people to upload third party CC-licensed content to online platforms like Facebook without violating the terms of service or the terms of the CC license.
• Cons
  • It may be difficult to craft language that is narrow enough to cover only this limited purpose.
• Other comments: Many terms of service require uploaders to grant a license to all content being uploaded to the online platform provider. Because licensees cannot sub-license CC-licensed content, this arguably prevents them from uploading it to common platforms like Facebook. This is especially problematic in the case of adaptations of CC-licensed works because it may prevent creators of adaptations from uploading and sharing their work on popular platforms.
• Note that even some platforms that "support" CC licensing does not necessarily accept uploading of CC-licensed works by a third party. See also a comment on Sandbox
• Treatment in 4.0 d.1: While reasons for considering this proposal have been articulated, we have not addressed it in this initial draft. Further input is needed before considering such a fundamental change in the operation of the licenses. We encourage those interested in such a proposal to articulate use cases where sublicensing would be beneficial, as well as any limitations on such a permission.

Please add other 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.

Relevant references

Please add citations that ought inform this 4.0 issue below.

Notes