4.0/Draft 3/Regional calls

In March/April 2013, Creative Commons engaged with its affiliates to discuss the third and final discussion draft of the version 4.0 licenses.

These conversations gave CC the opportunity to receive feedback on the remaining open license issues from legal experts and others who are deeply familiar with the CC license suite, have experience advising users of the licenses in multiple domains such as education, science, culture, GLAM, data, and public sector information, and understand how the CC licenses operate under varying and sometimes quite intricate national copyright laws.

The following topics were covered in each regional meeting/call, with initial overviews of the issues provided by CC HQ (which are also included below):

1. Using this public license
2. License interpretation
3. License grant: scope
4. Treatment of licensor's publicity and privacy rights
5. Attribution and marking
6. Treatment of sui generis database rights
7. NonCommercial
8. Licensing of adaptations under BY and BY-NC
9. Creative Commons Compatible License: definition, inclusion in BY-NC-SA
10. TPMs and permission to circumvent
11. Termination and cure period
12. Other topics

Participating jurisdictions:

• Africa:
• Arab World: TBA
• Asia Pacific:
• Europe:
• Latin America:

Important Note: The summaries provided below are provided for informational purposes only. These summaries are not necessarily complete, may not correctly or completely reflect the views of the participants, and must not be depended upon for legally accuracy or serve as legal advice.

Using this public license

Top of the license, before legal code begins.

This new section provides important reminders and information for licensors and licensees. We were inspired to create this new section as a result of an earlier proposal to reintroduce representations and warranties on the part of the licensor. We have decided not to pursue the warranty for some important reasons. Notwithstanding, we do want to encourage responsible licensor behavior and understandings, and to remind licensees of the limits of the license. For licensors, we want them to clear rights and to clearly mark third party content included with the licensed work. We also want to remind them that the license is irrevocable. To be clear, this new section is not part of the license and is not intended to impose binding obligations on licensors.

Questions: Is this new section useful? Are there other pieces of key information that licensors or licensees ought be reminded about before licensing or using the licensed material?

Asia-Pacific

• Useful and makes sense; consider relationship to the human-readable deed.
• What's the risk that it will be interpreted as a warranty? (HQ: very little; similar to other materials.)

License interpretation

Section 7(a).

'This new interpretation provision is designed to provide some predicatability for licensors and licensees about how the license operates. Clarifying within the license has benefits over remaining silent in our judgment. It adds predictability and in rare instances where courts get involved it reminds them of the general rule of interpretation while at the same time giving flexibility to determine that another rules applies given the particular circumstances of the dispute. This rule – interpretation of the rights granted is in accordance with the law in effect where the work is used– is the general rule that applies. It avoids forum shopping and supports other objectives. Note that this clause is only intended to govern a determination as to infringement. It leaves to the relevant authority the ability to conclude which law applies to other matters, such as whether a valid contract has been formed, disclaimers and warranties, and similar.

See the discussion prompt [LINK] and wiki page for details.

Questions: Is including this reference help with predictability, or would it be better to remain silent? Is the general rule drafted adequately?

Africa

Arab World

Asia-Pacific

• Predictability is good, hence inclusion of the jurisdiction clause in some 3.0 ports
• Worry there would be problems with inter-version compatibility
• Governments feel much more comfortable with using their own law (not because of the CC licences themselves - just in general)
• There are inconsistencies with international law - so without a clause you risk some changes
• Where government doesn't use CC yet, not sure if loss of use of local courts would be a deal breaker: perceived as 'home game advantage'.
• Proposed: jurisdiction where the creator first releases the work (positives of this are giving creators their due rights and protection, negatives are lack of certainty, especially to licensees, who may not know the laws of publishing jurisdiction).
  • also How / who determines 'first'
  • also because this deviates from international law, it could lead to inconsistent application by courts who will/won't accept this clause

Europe

Latin America

License grant: scope

Section 2.

This draft utilizes slightly different terminology and defined terms, but the categories of rights being licensed remain unchanged: copyright, neighboring rights and SGDRs. As in draft 2, it is written to be intentionally open-ended to account for new copyright-like rights enacted in the future and to avoid accidentally failing to include rights that should be included. We also do not want to cover too much, so we have explicitly excluded patent, trademark, moral rights and publicity/privacy rights. The change in draft 3 is that license grant no longer states an exhaustive list of things the licensee is allowed to do (e.g., reproduce). The new approach is to grant a license to exercise Copyright and Similar Rights, then mention an open-ended list of things authorized. This is designed to accommodate jurisdictions where copyright law does not grant a finite set of exclusive rights to copyright holders.

Questions: Are there any types of rights or rights under copyright we are unintentionally capturing that we should not? Anything this fails to capture?

Africa

Arab World

Asia-Pacific

• Happy with a non-exhaustive list, but do think that core rights and uses should be set out
• Need to allow for jurisdictions that aren't very specific, but as long as not exhaustive should be able to reach them
• This will also help with interpretation of commons deed - if you explicitly spell them out in the license, they can be reflected in the deed, to help with interpretation
• Commons deed is useful and innovative, but lay person doesn't go to the legal code; need to make sure they have enough information to get the finer degree of usage
• Important to establish a process by which the human/commons deed is updated in tandem

Europe

Latin America

Treatment of licensor's publicity and privacy rights

Section 2(b)(1).

This draft includes a new approach to publicity/privacy rights. Those rights are now treated like moral rights -- they are waived or not asserted to the extent necessary for the licensee to exercise the licensed rights. As an example, if I license a photo of myself, this provision would prevent me from using my own publicity rights to prevent the licensee from exercising their rights under the CC license.

Do you like this approach to publicity and privacy rights? Is there anything we should change in the provision?

Africa

Arab World

Asia-Pacific

• Important provision given number of people who use CC for photos
• Agree, it seems good as it just helps the license function more how it is supposed to

Europe

Latin America

Attribution and marking

Section 3(a)(1)(D).

In draft 3, licensees must indicate if they have modified a work, and if so include link to the original. Detailed prompt and description from license list.

This is now the only time a link is required for attribution (though we will encourage it elsewhere). Detailed prompt and description from license list.

Questions: is this enough to balance the licensors' and licensees' concerns? If not, what would be a better option?

Africa

Arab World

Asia-Pacific

• Trying to get people to note actual changes is impractical, just providing a link to the original work is a much better solution. Might be problems for hardcopy version. (HQ: "reasonable to the medium" caveat to allow for hardcopy versions)
• Only concern about practical examples (c.f. diff); github has technical tools that help with this

Europe

Latin America

Treatment of sui generis database rights

Including SGDRs in the license will only have an effect in jurisdictions where those rights are enacted. We tried to emphasize this by including qualifying language before every provision about SGDRs - “where the Licensor has SGDRs that apply to you,” and “Where licensors have SGDRs and those rights apply to the licensee”.

'*The license grants permission to do things that implicate SGDRs. The license grant includes using and sharing a substantial portion of database contents as an example so that licensees have no doubt that permission is granted.

• In the NC licenses, licensees may only do things that implicate SGDRs for NC purposes. (Note that means licensees cannot mine for commercial purposes unless an exception or limitation applies.)
• In the ND licenses, can do use the database in a way that implicates SGDRs, except you cannot reuse a substantial portion of contents in a separate database in which you have SGDRs.
• Licensees must always attribute when they reuse a substantial portion of contents publicly.
• In the SA licenses, licensees must ShareAlike when they reuse a substantial portion of the contents in a different database in which they themselves have SGDRs and which they share publicly. In those cases, SA only applies to the database structure and not the contents.

Questions: Have we done an adequate job of ensuring that licensees will not feel they have to comply with the license (e.g., attribute) when SGDRs do not apply to them? Are there any other remaining concerns about including SGDRs within the license scope? Appears throughout the license.

Africa

Arab World

Asia-Pacific

• Database rights aren't as broad as people think. Legislation defines when it will apply to a certain databases--e.g. large, commercial etc.; lots of technical requirements, so accidental application of the law to all databases outside Europe is unlikely
• I agree that the fuss over SGDR seems confusing to non-database jurisdictions, so important to make sure it's clear in the licenses that it doesn't apply in most cases
• We need to reflect it in the license deed
• Like the clarity stated in "When these rights [SGDRs] apply" in the discussion wiki

Europe

Latin America

NonCommercial

No change to the name of NC: we couldn't reach consensus on this, so we're sticking with the status quo, but may include "Commercial Rights Reserved" in other messaging.

We also removed the word "private" from "private monetary advantage" in the definition; this is not intended to be a substantive change.

Africa

Arab World

Asia-Pacific

Europe

Latin America

Licensing of adaptations under BY and BY-NC

Section 3(d).

We have made it explicit how you can license adaptations under BY and BY-NC. If you can comply with the CC license and the terms of whatever license applied to the adaptation, then it is allowed. This was not clear in the past. One thing that is surprising to people is that you can apply a more permissive license, even CC0, as long as you comply with the original license. We think this may be confusing but we think it is allowed.

• You must always comply with the license of the work you are adapting.
• When you are using a work that contains material under several different licenses, all of those licenses apply. Speaking about a single license for the work, rather than the licenses that apply to the parts, may not be meaningful.
• This is not intended to be a change, but a clarification of how this has worked to date in 3.0 and earlier versions.
• Again, this may be confusing in some cases. We expect to publish best practices which will be largely in line with the guidance we've previously published.

Discussion prompt on license list.

Question: Should we change this, and require that someone creating adaptations of BY or BY-NC works only license their original contributions under certain licenses?

Africa

Arab World

Asia-Pacific

Europe

Latin America

Creative Commons Compatible License: definition, inclusion in BY-NC-SA

Section 1(d).

The definition of "Creative Commons Compatible License" has been changed in d3 to remove two-way requirement. We think it’s possible for one-way compatibility, but we need a community discussion on this. The second change is that we have included this definition in BY-NC-SA also, although we don't know of any licenses that would be compatible. But because we cannot rule that possibility out, we want to build in a mechanism so that we don’t have to version the licenses again in order to allow for that to happen. We are planning to keep this change to the definition unless there is strong opposition to having a discussion about one-way compatibility: that two-way compatibility is the only option CC should be considering.

Discussion prompt on license list.

Question: is there strong objection to building in the mechanism now, both in BY-SA and BY-NC-SA, so that we can have a fuller discussion with the community before making any decision?

Africa

Arab World

Asia-Pacific

• Will this make things more or less complex? (HQ: clarity provided by taking a stance will outweigh the disadvantages of how difficult it is to mark and explain adaptation licensing.)
• Is there is a strong demand on Compatible License for BY-NC-SA? If not, probably it is not necessary to consider it.
• The wording in Section 1(d) seems not clear if exactly the same para is used in BY-SA and BY-NC-SA legal code. How do you point to something outside the licenses?

Europe

Latin America

TPMs and permission to circumvent

Section 2(a)(3).

This new express permission to circumvent is limited in scope. It allows circumvention only of those effective technological measures applied by the licensor. The license can't give permission to break third party TPMs because they aren't a party to the license. Note that modifications to circumvent do not create adaptations, which means they are permitted in the ND licenses. We will make clear that this permission may not be sufficient – in some jurisdictions circumvention may be criminal notwithstanding the permission, and persons other than the rights holder may be able to complain about the circumvention. Need help from affiliates with messaging on this - FAQs, etc. On balance, we think the license should enable reuse as the license intends wherever possible.

Questions: Does including this permission over promise that no risk exists for licensees? How can we educate that additional permission may be needed or that the conduct may be illegal?

Africa

Arab World

Asia-Pacific

• Sensible move
• Section 2(a)(3) wording seems clear.

Europe

Latin America

Termination and cure period

Section 5.

CC licenses have always had an automatic termination upon. One consequence of this is that it often means a licensee no longer authorized to use the material even after fixing minor/unintentional violations, at least not until they sought and received explicit permission from the licensor.

There has been lots of support for changing this in 4.0. In draft 3, there is now a mechanism for licensees to get their rights reinstated automatically under limited circumstances. Once a licensee discovers they are in violation of the license, they have 30 days to correct the violation and get new rights under the license without having to contact the licensor. “Discovery” is left intentionally vague because there are lots of ways licensees realize they are not in compliance. Sometimes figure it out on their own, sometimes a reader of their blog alerts them, sometimes the licensor herself notifies them. Important to note that the license is terminated immediately upon violation just as in prior versions. That means licensors may still seek (equitable or legal) remedies for violation, and we have made this clear in the provision.

Note that this is not identical to how GPL and some other licenses work. This is intended to be clearer and easier that those other provisions.

Question: Do people like this new approach?

Africa

Arab World

Asia-Pacific

• Our jurisdiction doesn't see this as necessary: we were happy with the 3.0 wording but we understand there are different views on this

Europe

Latin America

Other topics

Porting discussion

The porting discussion will take place in two phases. The first is to have all affiliates review the legal code carefully and identify for us any provision that doesn’t work as intended in their jurisdiction. We want to reduce to the greatest extent possible the need for porting due to legal needs. We are providing a means to comment on the draft publicly. These comments should be submitted by all affiliates no later than March 29th.

The second phase will be a discussion of other benefits of porting, and seeing whether there are other activities such as the official translation process that can provide the same benefits.

We will not be prohibiting porting. We will, however, be insisting that any affiliate team requesting that demonstrate a legal need (one that couldn’t have been addressed during stage one of this discussion) or another compelling purpose. Now is the time to review the license to identify any problems – if you don’t raise those now then that will be factored into our decision whether to allow you to port.

Asia-Pacific

• License applicable without issue in [our jurisdiction], just query on explanation notes for translations.
• Will need extra explanatory materials etc for translations - to make sure it's clear
• It will be less clear what the application will be if it's not ported
• With ported versions local CC offices were definitive opinion - now it's less clear that our opinions will be relied on
• Timeframe/longevity for 3.0 to be deprecated? (HQ: we don't formally deprecate the licenses)

Sublicensing

Asia-Pacific

• In the case when a CC-licensed work is uploaded to a Web service that imposes its own ToS and requires a sub-license from the uploaders.

Do the uploaders violate Section 2(a)(4)? This is a big restriction and a bad thing for the service. (HQ: for most platforms, they are probably violating the license, because the terms of service requires full license; we tried to come up with a solution, but haven't managed to so far, it's more a product of how ToS work combined with the no sublicensing clause. The licensor can always grant that right, but it requires an additional permission.)

• The CC license being a direct license is a very powerful part of the licenses. Particularly for governments - they like the direct relationship; no sublicensing is very important to ensure this.
• Complexity will explode if sublicensing is allowed.

Topics still to come: deed (contents, integration)

Once legal code is finalized, we will turn to the deed and other implementation matters. On the deed, we may have a separate deed for 4.0 and leave the existing deed for 3.0 and prior. We will also consider what should be on the deed in terms of priorities.

Pending 3.0 ports

A reminder that we have four ports of 3.0 still moving forward. One of those is the intergovernmental port, which contains an alternative dispute resolution.

Africa

Arab World

Asia-Pacific

• Which IGO is porting the license? (HQ: there's a group of 10, including the UN.)
• IGF is meeting in Asia this year, so there might be an opportunity to market it to them

Europe

Latin America