4.0/Disclaimer of warranties and related issues
Draft 2 Treatment:' No change in Section 4 language itself. However, we have added a new Section 6(b) that permits licensors to disclaim or offer warranties or to limit liabilities differently from Section 4. This is intended to ensure licensors can tailor those provisions in the manner most suitable based on differing consumer protection laws that may apply to them and have those changes be deemed part of the license itself.
Post 4.0d2 update: During the post-d2 discussion period, several affiliates and community members proposed changing the language to require documentation of third-party rights. Discussion around the issue was then opened up on the list, including discussion of the very different treatment in 1.0.
- 1 Disclaimer of warranties and related issues
- 1.1 Considerations
- 1.2 Opportunities outside the licenses
- 1.3 Proposals for disclaimer of warranties in 4.0
There are several important factors to be considered in connection with any proposal to change the current treatment. Generally, proposals fall into two categories: those that would require licensors to provide a warranty as in version 1.0, and those that would require licensor documentation of other rights in some manner. Without reference to any specific proposal, here are some general considerations to inform the issue.
Factors weighing against warranties, marking requirements or similar licensor undertakings
- These requirements would not relieve the underlying problem in some if not many cases given the complex web of copyright and other laws that may apply to any given work. Many licensors -- even sophisticated licensors -- are not aware of all possible rights that may exist in a work. By way of illustration, a licensor could apply a CC license to a work she authored but the applicable law considers it a "joint work" requiring agreement of all authors before licensing; or, a licensor might share a photograph with blurry (but upon close examination, identifiable) persons in the background under a CC license that permits commercial reuse and the photograph is reused in a manner than violates those persons' privacy or publicity rights.
- Warranty and marking requirements are simply not an option for some licensors wanting to share and comply in good faith. Transaction costs associated with clearing and documenting all possible rights are high for well funded organizations let alone an individual licensor wanting to share. The problem is particularly acute when the work is restricted by complex layers of rights, such as a musical work or performance, or a film production.
- Other licensors may be unable to make any affirmative statements about having cleared third-party rights, sometimes as a matter of institutional policy. These licensors are often acting in good faith, using best efforts to clear rights appropriately notwithstanding the current disclaimers. Upgrading to the 4.0 licenses will not be an option for those licensors.
- The existing treatment seems to work well in practice. The current (and 4.0) attribution and marking requirements make contact with licensors easy for those seeking formal assurances or warranties.
- Partial solutions already exist and could be leveraged where affirmative statements are important to licensees. Many third-party platforms that enable CC licensing already require uploaders to affirmatively agree that they have cleared all necessary rights in their licensed content. (While there are many licensors who are ignorant of this requirement or mistakenly believe they have all rights, it is also likely that including an affirmative warranty or undertaking in the licenses would be similarly missed.)
- Warranties provide only partial benefit and protection to licensees, as they do not address the underlying problem. If a licensor applies a license without having cleared all other rights, a licensee may still be required to cease distribution or pay damages when rightsholders enforce. While warranties may shift liability to the licensor, they cannot give the licensees guaranteed recourse from a licensor who has limited assets or is difficult to find.
- In some jurisdictions, warranties cannot be disclaimed as fully as the license attempts, and implied warranties are read into licenses, all by operation of local law. This raises the question of the need for warranties, at least in those jurisdictions.
- Disclaiming liabilities is the standard for open content licenses (although a few open software licenses include warranties). Reversing course to include warranties breaks with that.
- CC prefers the licenses operate as licenses to the greatest extent possible, wherever possible. Having licensors undertake affirmative obligations could work against this interpretation in jurisdictions where the license is construed as a license and not a contract.
Factors weighing in favor of warranties, marking requirements or similar licensor undertakings
- CC licenses are designed to enable reuse of works. When the work being shared is restricted by rights that are not licensed and are not identified (so that they can be cleared), the reusability of the work is diminished and may be effectively non existent for some or all reuses depending on the unlicensed rights in play.
- As betweens licensors and licensees, licensors are generally better informed about what other rights may exist in the work that should be cleared before reuse, and arguably better positioned to clear those rights. Additionally, tracking and documenting the origin and status of works is a standard procedure for many licensors.
- The current language puts the entire burden of clearing rights on the licensee without any corresponding obligation on the licensor. Arguably, this does not give licensors incentive to be as careful as they might otherwise be when applying a license, or properly marking third party content in a work.
Opportunities outside the licenses
There are several things that Creative Commons could undertake outside of the licenses to further encourage licensors to clear rights and document known third party rights or other limits on the licenses that could actually improve the underlying situation in a way that no shift of responsibility in the licenses can.
- Facilitate offers of warranties by licensors who can and want to provide them, and possibly highlight those who do so on the Deed. The current draft of 4.0 anticipates such offers.
- Include options in the Chooser for identification of known or potential third-party rights. This could take several different forms, including optional additional fields.
- Make information about the possible existence of other rights more prominent on the Deed. The Deed currently is silent in this regard. There is also an open proposal to combine the Deed or replicate the Deed on the same page as the Legal Code, facilitating still more easy access to the Legal Code where details of limitations are made clear.
- Create additional tools (such as options for additional metadata and/or symbols on the deed) to facilitate marking. It may be desirable for CC to design some visual indication a licensor may use when a work may be subject to additional rights and create additional tools for licensors and platforms who wish to use this marking.
- Additional FAQs and best practice guidelines from CC. Licensors are already admonished to be careful before applying CC licenses, in the FAQs, at the top of the new Chooser and (on a dedicated page linked to from the FAQs Before Licensing#Make_sure_you_have_the_rights). CC and its affiliates could create still more detailed guides, highlight those more prominently on the Chooser and elsewhere, and engage in outreach to licensors promoting best practices and how-to documents on how to identify and clear rights, and mark their works in a more informative manner for licensees.
Proposals for disclaimer of warranties in 4.0
For ease of reference on discussion lists, please do not alter proposal numbers.
Disclaimer Proposal No. 1 (submitted by Lucie Guibault): The current situation under all CC licenses but v 1.0 puts the entire burden of clearing rights on the licensee without putting any obligation on the licensor – which is not fair especially in cases where the licensor is in a position to clear some or all rights. Let me give three examples:
1) Imagine writers A & B write an article together but only A decides to publish the article under a CC license. Question: can the licensee rightfully assume that A obtained permission from B to publish so that he can use the work without problem or must the licensee obtain permission every time from all rights owners?
2) Imagine that A & B are employed somewhere and write their article within the scope of their employment. In the Netherlands, the employer would be deemed the author of the work, while in all other EU countries (including the UK) it would be the authors themselves. Can the licensee rightfully assume that the employer granted permission where needed? How would a licensee know to ask permission from the employer, if only the names of the authors appear on the work?
3) Imagine that amateur video maker makes home video of his dog and puts a popular song as background music. Can the licensee rightfully assume that the video maker obtained permission from the rights owner on the song (presumably a collective rights management organization) to perform the music? Most probably not!
In general although the licenses contain no representations from the licensor to this effect, a court in Europe would probably interpret the license as a contract and therefore as creating an obligation on the licensor to permit peaceful enjoyment of the rights conferred under the license. In other words, a European court would probably require from the licensor that he cleared the rights necessary to allow normal use of the work. But this may not be the case in all jurisdictions and it would certainly be a matter for case-by-case interpretation. A more structural solution would be needed especially if we want to encourage more established users (broadcasting entities, government institutions etc.) to make use of CC licensed works.
The middle ground could be to split the burden between the licensor and the licensee. Taking v 1.0 as an example, I think I could live with a clause including a version of the first subparagraph but the reverse version of the second paragraph (as currently is the case). Your proposal to mark third party works in the license chooser is certainly an avenue worth exploring further. However there may be a distinction to be made in the degree of obligation on the licensor between ‘third party’ rights as such (examples 2 and 3) and the rights of co-authors on a work (example 1).
In my opinion, if the ‘third party’ rights can easily be identified they should either be cleared (like those of the employer, for ex.) or excluded (like those on the popular song).
If there were a representation of ownership in the license, it would hopefully have the effect of responsabilizing the licensor of not incorporating just any third party work into his own without clearing the rights. The absence of such a clause in the license reduces the quality of the licensed work in the eyes of potential serious users, who may think that anything can bear a CC license even if the rights owner hasn’t given permission to do so.
Please add other Disclaimer proposals here, and number them sequentially.