Making TOS Work With CC

CC implementation: guidelines for website terms of service ("TOS")

While we try to make CC licensing as simple as possible, the fact remains that copyright is complicated, and there are lots of things to consider when you decide to integrate CC licensing on your website. This page offers guidelines and considerations to help you update your website terms of service to make them work with your use of CC licenses.

Categories of content

Generally, there are three types of content to consider when integrating CC licensing to your site:

1. content owned by you, the platform provider;
2. content owned by contributors; and
3. third party content uploaded by you and your contributors.

CC licensing can be used for any or all of these types of contents. Regardless of whether you use CC licensing, the terms of service should define the universe of content that it addresses, who owns the content, the terms under which it is licensed, and any conditions of upload.

1. content owned by you as platform provider

If you choose to apply a CC license to this category of content, you should --

• remove provisions from the TOS that limit or impose additional conditions on uses the CC license permits. For example, the TOS must not have more burdensome attribution requirements than what is required by the CC license.

Other considerations for your content:

Representations & warranties: Although the CC license itself does not include any reps or warranties, the license does not prohibit you, as the rights holder, from including reps and warranties about the content in the TOS.

2. content owned by contributors

If you want to require contributors to CC-license the content they upload to your platform under the TOS, there are two different approaches --

• The simplest approach is to insert a provision into the TOS that requires contributors to grant a CC license to their content upon upload to the site. In that scenario, you (the platform provider) get the same rights to use the content under copyright as the public under the CC license.

• The alternative (and more common) approach is used when a platform provider needs more rights from contributors under copyright than the relevant CC license grants – for example, if the platform provider wants commercial rights from the author but wants to have uploaders grant a CC license allowing content to be used for noncommercial purposes only. In that case, the TOS should include a separate license to the content from contributors to the platform provider and include the provision requiring contributors to grant a CC license to their content upon upload to the site.

With either approach:

• remove provisions from the TOS that limit or impose additional conditions on uses the CC license permits. For example, the TOS must not have more burdensome attribution requirements than what is required by the CC license.

Other considerations for contributor content:

Representations & warranties - You may get representations and warranties from uploaders or ask uploaders to agree to particular terms and conditions via the TOS. For example, the TOS may ask contributors to provide assurances that they own the necessary rights to upload and license the content, or they may require uploaders to agree to be attributed in a particular manner.

Sample language: "You represent, warrant, and agree that no content posted or otherwise shared by you on any of the websites, violates or infringes upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, or contains libelous, defamatory, or otherwise unlawful material."

Automatic upgrade clause: Since only the rights holder can apply a license to the content, it is important to obtain permission to use contributor content under future versions of the relevant CC license at the time of upload.

Sample language: “You agree that your content: (a) is hereby licensed under the Creative Commons Attribution 4.0 license and may be used under the terms of that license or any later version of a Creative Commons Attribution License.”

3. third party content (i.e. content owned by someone other than the uploader)

If you want to allow the upload of third party CC-licensed content, you should:

Avoid asking for a sublicense. Importantly, CC licenses don't give licensees the right to grant a sublicense directly to others without the permission of the licensor. This means uploaders of third party CC-licensed content would not be granting you (or the public) any rights directly. Therefore, enabling upload of third party CC-licensed content requires that the TOS not require a direct license to the content from the uploader. If you do ask for a sublicense, then users should be directed not to upload third party CC-licensed content or that to do so requires they get express permission from the third party to grant the sublicense.

Sample language: “For content you post on the websites that is not owned by you, you agree that all such content must be available under the Creative Commons Attribution 4.0 International license, or be in the public domain (such as content that is not copyrightable or content made available under CC0).”

Specify which licenses are allowed. There are six types of CC licenses with varying reuse conditions. You should consider which of the licenses are compatible with your site. For example, if you want all content on your site to be available for commercial reuse, you should not allow upload of third party content under an NC license.

Require clear marking. The TOS should require uploaders to mark the content appropriately so that users of the website can discern the relevant license conditions and attribution information. [Note that appropriate marking is also important for third party content uploaded by you.]

Sample language: “All of the content you upload must be appropriately marked with licensing (or other permission status such as fair use) and attribution information."

Consider whether marking will be effective. You should consider whether it will be easy for users of the site to determine what content is available under what license. In some cases, such as with photos or other media, it is simple to mark specific content with licensing information, so reusers can determine what terms and conditions apply to what content. In others cases, such as with textual content, it may be prudent to limit upload of third party content to content available under the exact CC license (or at least a compatible license) to that used on other content on the site. This is because it can be difficult to discern what content was contributed under which terms. For example, if you require BY-SA for contributor content, then you could allow upload of third party content only if it is licensed under BY or BY-SA.

Sample language: “If content you upload is not owned by you, you hereby agree that it (i) is available under a Creative Commons Attribution 4.0 license or (ii) is a media file that is available under any Creative Commons license or that you are authorized by law to post or share through any of the Services, such as under the fair use doctrine, and that is prominently marked as being subject to third party copyright."

Note and Disclaimer: Creative Commons is not a law firm. CC does not provide legal advice. Any information provided or linked to here is for general informational purposes only, and must not be relied upon as legal advice. You should consult your own lawyer if you need legal advice.