Making TOS Work With CC

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 to your website. This page addresses one of the necessary components -- offering guidelines and considerations to help you update your website terms of service ("TOS") to make them work with your use of CC licenses.

Categories of content

There are three buckets 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 buckets. For each bucket of content, regardless of whether you use CC licensing, the terms of service should define the universe of applicable content, and address ownership of the content and its applicable licensing terms, and the conditions of upload where relevant.

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.

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 needs to obtain 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:

Representations & warranties - You may get reps 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 hereby agree that all Content you own and voluntarily post on the Websites may be used under the terms of the Creative Commons Attribution 4.0 International license or any later version of a Creative Commons Attribution International License.”

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

There are several types of third party content that can be allowed for upload via TOS:

• content that the uploader has permission to upload (including CC-licensed content),
• content that falls outside of copyright (i.e. is in the public domain), and
• content that the uploader has the right to upload because of an exception or limitation to copyright (e.g., fair use).

Each category carries with it a different level of risk and related considerations. For each category:

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

Sample language: “All Content you supply must be appropriately marked with licensing (or other permission status) and attribution information.”

For the upload of third party CC-licensed content:

Consider whether marking will be effective. If you allow upload of CC-licensed content owned by someone other than the uploader, 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 there is no need to limit the type of CC-licensed content that is uploaded. 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 contributor content. 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 do not own is not available under these terms, you must not post it on the Websites, except that you may upload media files that are available under any Creative Commons license or if you are authorized by law to do so, for example, under the fair use doctrine.”

Do not ask 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.

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).”

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.