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

• Not sure what the intent of this is. When first read it, thought we were trying to designate a law that would apply to the contract but not what would govern the copyright pieces. Now after hearing explanation, not sure what the real idea is.
• The subtitle is confusing because that implies that we are talking about contract aspects. For those portions, should be the law of the licensor.
• Think the clause is good to avoid forum shopping.
• Choice of law should normally refer to contract law etc., not whose IP law applies
• Is it necessary to have language at all in this case? At the moment the language is confusing and makes it hard to tell whether this is meant to be for contract law or IP law
• Maybe we should add the official term for the general principle 7a) repeats where one exists.
• HQ to start a separate conversation on this with those who expressed interest

Latin America

• Interpretation clause might not be enforceable in a lot of jurisdictions, could be confusing for people
• Concerned that we are telling people to interpret it as a copyright license, but sometimes it should be looked at for contract formation or other purposes; may be a bit redundant

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

• Discomfort with "similar" in "similar rights" as it isn't clear
• "Copyright" isn't used as a term in most countries; "author's rights" is the most common term used in European countries and is also in the Berne Convention - though there are some other documents that use "copyright", so "copyright" is hard to interpret
• "similar" isn't used in this context, and might be hard to interpret - but I think it's ok
• The problem of "copyright" vs "author's rights" doesn't seem to be a problem in practice; see GPL decisions
• Proposals: "Similar" maybe unclear? is "related" better? "ancillary"? (which brings to mind the new German right)
• Like the idea of a non-exhaustive list
• "Similar" as a neutral term encompassing "related, neighboring, ancillary" might actually be suitable (HQ: other terms like "ancillary" didn't make sense to many people; "similar" was the most neutral term we could come up with)
• It might catch other rights not to be included; for example "cultural heritage rights' - that heritage institutions have over works in some places
• What is the policy? are we trying to include lots of rights, or only a few?
• Think it's a problem, but I can't come up with a better solution - so maybe we should just keep it as is
• Make the definition as broad as possible (in theory also including moral rights, trademark and all the rest - "similar") and then explicitly exclude moral rights, trademark, patents.
• Cultural heritage rights: risk of gov't license being created for them? Could be useful to include cultural heritage rights, but the licensors might not have the heritage rights.

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

• Courts won't uphold something that is too broad
• People can still sue even with waiver - courts won't waive if they want to enforce, so this provision could be misleading
• Also have the problem that those rights normally won't be held by the licensor
• Isn't this similar to clearance issue at the beginning, rather than granting?
• It's interpreted "in a reasonable way" by courts: most "to the extent possible" clauses are invalid under some consumer laws, but that will somehow be alright one way or the other
• Many models are relieved if you tell them "you keep all control over your privacy rights" - which still applies, so it should be fine
• A use that doesn't infringe copyright could still infringe personality rights, so people could still enforce that; I think this is a good outcome
• Control over personality rights is rather limited in our jurisdiction. What control is left is probably fine for the CCPL purposes.
• Would it be that the clause could be interpreted as saying that moral rights are waived entirely? (HQ: purpose of the provision is that the licensor can't stop the licensee from doing anything that is permitted by the license.)
• Here you can't waive moral rights, so the issue is more with personality and privacy rights; this clause probably won't work here, as even with the "to the extent possible" this won't be enforced by a court
• Also here we can't waive the moral rights - but it says "to the extent possible"
• I used to like this clause but now I'm not sure it's a good idea: maybe we should just omit personality and privacy rights, and just put in a vaguer, broader provision
• Should we specifically mention "honor and reputation"? (HQ: the problem there is that you import it into countries that don't have moral rights.)
• "Produce" isn't a good word - "create" is better
• Maybe in definition of licensed material we should say "protected by copyright or similar rights"

Latin America

• Yes, I like this.

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

• Could we set up a standardized process or mark? That would help. We could suggest a mark that just indicates that it's been modified. (HQ: reluctant to do this because of need for flexibility, but communities of practice could do this easily)

Latin America

• Visual artists have fears that might be addressed by not having link, this issue comes up a lot

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

• In most cases where sui generis rights are implicated we will have an adaptation
• (HQ: we've actually tried to limit this; we don't want it to be implicated when you're just taking a portion of someone else's database rights, so we've said this should only apply if your new database would attract database rights)
• Can't think of any practical circumstance in which the ND licenses would apply to databases
• Concerned about attribution stacking. How do we attribute with sui generis rights? This is an issue for aggregators in Europe - they're requiring people to attribute the aggregator. Do you need to attribute all the aggregators? This leads to attribution stacking. I like the clause you have here and its attribution in database rights, but we need to try to deal with attribution stacking.
• What happens when data under a CC license is issued in a country with no database rights: how does someone in EU know that the license applies to the original work?
• This could be an infringement: I can't think of any way to solve this. It's unlikely to happen - but it's possible.

Latin America

• We will have to wait and see: probability that it gets used here is always there, will have to clarify how it applies (and how it doesn't) as much as we can.
• Language is as good as it is going to get, can't see how we could make it more evident that it only applies where SGDRs exist. Database providers want a database-specific license even where db rights don't exist in their jurisdiction; the idea of db rights is spreading around the world.
• DB rights in CC license suggests it's impossible to avoid suggesting they exist even where database rights are not applicable in their jurisdiction. Have to wait and see.
• This is happening already even without 4.0; people realizing db rights are out there (especially because of Europe's influence in db community); 4.0 helps dispel myth that CC is db-unfriendly.

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

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

Europe

• I agree with this position. It was not a reasonable limitation - shouldn't restrict licensing of new contributions.
• Confused about what license applies to WHOLE work including both old and new. (HQ: two licenses apply, one to each part.)

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?

Latin America

• Maintaining compatibility with Wikipedia is the biggest concern.

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

• Optimal solution can't be drafted, so what we have is OK
• Only way to enhance compliance is through FAQs, etc.

Latin America

• Criminal offense to break TPM in some jurisdictions. Is it still criminal if trying to exercise exceptions? The law only considers DRM circumvention as a criminal offense. Even if we say in the license that authorization only applies where possible, concerned about effect.

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

• Why does the licensee not have 30 days upon express reinstatement by the licensor? Looks like 30 day window doesn't apply if licensor is the one to alert the licensee there is a violation. (HQ: we'll try to make it clearer)
• Agree with the provision as it's drafted now and the reasoning behind it.

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