4.0/Draft 3

Welcome to the Public Discussion of 4.0d3

(view and download the 4.0d3 licenses [links])

This page provides information specific to the public discussion of the third draft of version 4.0 (4.0d3). These drafts are the result of discussions with the CC community and CC’s many affiliates through the license development email list, the community email list, the 4.0 wiki pages, and consultations with our affiliates.

Please review those discussion archives and web pages for context and details of the discussions and related decisions. Please contribute to the discussion by subscribing to the license development list.

During this third and final phase of the 4.0 development cycle, we will focus discussion on key remaining policy decisions.

Treatment of issues and proposals in 4.0d3

The discussion topic pages on our 4.0 wiki provide details on policy and drafting decisions reflected in 4.0d3. You should review the explanations at the top of each page (marked as "Draft 3 Treatment" of the particular topic) for the most comprehensive explanation. As well, please review the Sandbox page and our new Compatibility, Sui Generis Database Rights, and Termination wiki pages. All of these pages provide details on changes and proposals for this final discussion period.

Policy and Drafting Decisions

The second public comment period quickly became a hybrid discussion. The conversations included not only those issues specifically identified for discussion at that time, but also involved drafting and policy decisions we had considered largely settled with the publication of draft 2. Here are highlights from the public discussion and corresponding revisions in the draft 3 legal code. For the most comprehensive and detailed view of changes made in this draft, please review the side-by-side comparison of draft 2 and draft 3, with abbreviated annotations of changes made.

• No warranties, but new license considerations. We considered in depth a proposal to reintroduce warranties on the part of licensors, but have concluded that whatever its benefits the reintroduction would cause more problems than it would solve. We are excited by a new change that the proposal inspired, however. We are introducing a new section preceding the legal code, where important considerations for licensors and the public are identified. Its prominent location will raise awareness of the underlying issues the warranty proposal attempted to address. Read a fuller explanation on our wiki.

• Publicity and privacy rights. Thanks to input from the CC community list in particular, we looked hard at the question of publicity and privacy rights and their ability, like moral rights, to stand in the way of uses otherwise permitted by the licenses. We see no reason to differentiate, and now choose to treat those rights as we do moral rights in order to prevent situations where licensors could prevent exercise of licensed rights by invoking those rights. Publicity and privacy rights held by the licensor are now subject to the same limited waiver as moral rights. Read more on our license subject matter page.

• Technical protection measures. After further reflection, we are persuaded by those who have pushed for an express permission to circumvent TPMs, but only insofar as those are placed on the licensed material by the licensor and impede exercise of the licensed rights. This change more completely positions CC on the TPM issue. Please see the TPM page for more details, including its inherent limits and precautions related to breaking DRM.

• Termination and automatic reinstatement. We have been encouraged by many to soften the existing 3.0 automatic termination provision that requires licensees to obtain express permission from licensors to reinstate the license. In 4.0, the license still terminates automatically but now includes a mechanism for the license to be automatically reinstated when the violation is remedied within 30 days of its discovery by the licensee. The licensor’s right to pursue remedies for the violation is preserved, however. You can read more about this addition on the Sandbox page.

• Other changes. For a detailed review of changes made, please check out our side-by-side comparison chart to review the draft 2 and draft 3 licenses. We have made adjustments to the attribution and marking requirements and clarified how the license operates in the context of Sui Generis Database Rights. We have also made a small change to the NonCommercial definition. That change is not designed to change the scope of NC, but some of you may wish to share your opinion on whether that is in fact the case.

Open Discussion Topics: Structure and Timing of D3 Comment Period

In this third public discussion period, we plan to focus first on policies and issues that impact the legal code. We expect this first phrase to span several weeks. Once those issues are fairly settled, we will turn to policies and issues bearing on implementation and adoption. This structure is not intended to be overly formal, however decisions made relative to the legal code will affect other outcomes, such as the contents of the deed.

Legal Code – Pending Topics for Feedback

We welcome feedback on all aspects of draft 3. However, we do have several key areas for community input. For each, we have readied postings that will be made shortly to the CC license development list that provide additional background and describe the issues and choices in play. We will include links to those postings here for ease of reference as those are published.

• ShareAlike compatibility. We have two proposals to vet with the community. The first is the inclusion of a compatibility mechanism in BY-NC-SA similar to the mechanism in BY-SA. The second is a change in the definition of "Creative Commons Compatible License" that could allow for one-way compatibility from BY-SA (and BY-NC-SA, if the first proposal is accepted) to other approved licenses. Our current BY-SA mechanism only allows for two-way compatibility, thereby precluding the possibility of one-way from BY-SA to GPLv3, for example, were we to conclude that to be desirable and appropriate. This second proposal would be accomplished through the removal of the two minimum criteria from the definition itself. We have made these changes in draft 3 of both BY-NC-SA and BY-SA. Please note that this second issue will be vetted rigorously and fully with the community as will the question of criteria for approving other licenses as compatible with SA. Please see the Compatibility page for more details on these proposals, and look for postings to the license discuss list shortly.

• Adaptations of BY and BY-NC material. The license for the first time now includes provisions specifying how users of BY and BY-NC material must license their contributions to adaptations based on the licensed content. We have included a new provision in draft 3 of these licenses requiring those contributions to be licensed on terms that allow recipients to simultaneously comply with both the new license terms and the underlying BY or BY-NC license. Please see the Adaptations page for more information on this important addition.

• Finessing attribution. Draft 3 contains slight adjustments to the attribution requirements in Section 3. One of those is a newly introduced limitation on the requirement to provide a link to the unmodified work, which is now only applicable when modifications have been made. We look forward to hearing your views on the proposal. For more details of the changes to the attribution, see our comparison charts showing the differences between attribution in draft 2 and draft 3 of 4.0, and 3.0 and draft 3 of 4.0. There is also further information on the Attribution page.

• Internationalization -- license interpretation clause. In addition to the many smaller changes included in draft 3 designed to improve operation and enforceability of the licenses around the world, we have added a clause that tracks the usual rule courts apply to determine the law applicable to the license and the licensed conduct – which is, the law in effect where the licensee uses the licensed material. Including this interpretation provision in the license makes clear how the license operates and will be interpreted absent some special circumstance, and is beneficial for both licensors and licensees. We have also included a provision ensuring that in no event may the license be interpreted to restrict or undermine exceptions and limitations that may apply to the licensee. We plan a full discussion on this topic in this public discussion period, and will be publishing additional information about the options we considered shortly. Watch for more information soon, and review a more detailed explanation of this proposed change on the Internationalization page.

Other Pending Topics

We plan to follow the above discussions with consideration of these and other final topics related to implementation and adoption.

• Porting. We agreed early on in the 4.0 versioning process to explore the question of whether porting (adapting the licenses for local law) is necessary or desirable for the 4.0 license suite. Our objective for this discussion is not to settle the question with finality before publication, as it's not always possible to anticipate every circumstance or need. We are, however, asking our legal affiliates to undertake a rigorous review of the legal code one last time to identify any remaining provisions that could benefit from adjustment so there are no legal barriers to reuse in their jurisdictions. This review will also help us avoid small errors in the legal code. While this is an expectation of our official affiliates, anyone with comments on these points is most welcome to contribute. This review will give us information important for planning post-publication and should also improve the licenses still further for use worldwide.

• License deed. Once we are closer to launch, we will start a discussion on the contents of the 4.0 deeds and whether those should be new, separate deeds or if we can craft a single deed that spans both the 4.0 suite and earlier versions. This discussion will also consider a long-standing request by at least a few to integrate or replicate the human-readable deed with the legal code. We also expect to discuss the chooser and integration of the 4.0 licenses and the official translations we fully expect to be forthcoming shortly following (and even possibly simultaneously with) the launch of the 4.0 suite.

Please join the CC license-discuss list or add your input directly to the CC 4.0 wiki.