4.0/License subject matter
Summary = CC’s international suite of licenses are built atop international copyright law, granting permissions to make uses of work that implicate copyright and related rights upon certain conditions. The precise scope of those rights varies depending on the copyright law of the jurisdiction where the license is operating. Therefore, regardless of where the rights holder resides, the scope of the license varies depending on where the work is used.
However, there are certain rights very similar to copyright that are not currently included in the scope of the international license regardless of where the license operates. One such set of “copyright-like” rights not included in the scope of the international license are sui generis database rights (SGDR), and there may be others that do not fall within the current definition of work in version 3.0.
Proposed objective = to make the license grant broad enough in version 4.0 to grant all “copyright-like” rights necessary to use the licensed work worldwide, but narrow enough to keep other rights regimes - such as patent, trademark, publicity rights, and privacy - separate.
Sui generis database rights (SGDR)
In their current form, CC licenses do not require attribution or compliance with other applicable license conditions where use of a licensed work triggers SGDR and not copyright.
In version 3.0 of the licenses, CC attempted to harmonize treatment of SGDR worldwide by neutralizing those rights in jurisdictions where they existed. This was done by explicitly waiving the license conditions with respect to SGDR in licenses ported to the laws of jurisdictions where SGDRs were enacted. The unported license and ported licenses in jurisdictions without SGDR do not address those rights directly. The effect of this differing treatment is as noted above - uses of licensed works that only implicate SGDR do not require compliance with the license conditions.
CC’s treatment of SGDR has been criticized for the following reasons:
- If someone applies the unported license to a database in the EU or other countries where SGDR exist, arguably they are not granting licensees the right to do things that implicate SGDR. Licensees may not realize they need extra permissions to use a substantial portion of the licensed database.
- Some major potential license adopters, including the UK government, have indicated they are not able to use CC licenses because our licenses do not adequately address SGDR.
Regardless of whether CC begins to license SGDR on the same terms as copyright, there is widespread consensus within the CC community on a few basic concepts:
- SGDR are bad policy and have not proven to garner the economic benefits they were designed to achieve. Accordingly, CC needs to be careful not to do anything that would be seen as an endorsement of SGDR or that would have the effect of encouraging compliance with license conditions in jurisdictions where SGDR do not apply.
- The ported and unported licenses should grant the same permissions to licensees. The differing treatment among EU ports and the unported license is sub-optimal and may cause confusion.
Proposals for addressing SGDR in 4.0
After discussion at the Global Summit in Warsaw, CC is moving toward including SGDRs in the license on the same terms and conditions as copyright and related rights. Therefore, the following proposal is the intended course of action at this time, but we welcome further debate and discussion. Please add your input on the pros and cons of the proposals identified.
- License SGDR on par with copyright. The licenses currently cover copyright and related rights. This option would require amending the legal code to license SGDR in the same manner. To be clear, just as the license currently operates with respect to copyright and other related rights, a license of SGDR would only take effect in jurisdictions where such rights exist.
- Other comments:
- License SGDR and waive conditions. This would effectively put the unported license in line with the EU ports with respect to SGDR. The license would grant permission to do things implicating SGDR (where SGDR apply per applicable law only), but the license conditions would not apply to those uses unless copyright was also implicated.
- Other comments:
Defining the scope of the license
As noted above, CC's goal is to grant licensees all "copyright-like" rights they need to exercise the rights granted under the license, without impinging on rights that are not necessarily owned by licensor (e.g., publicity rights) or rights that may be owned by the licensor but are not related to copyright (e.g., trademark rights). "Copyright-like" rights are those that overlap with the exclusive rights of copyright and are held by the same person or entity as the copyright. SGDR are likely not the only “copyright-like” rights not currently covered by the international license.
Currently, the definition of “work” in the 3.0 international license is:
- "Work" means the literary and/or artistic work offered under the terms of this License including without limitation any production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression including digital form, such as a book, pamphlet and other writing; a lecture, address, sermon or other work of the same nature; a dramatic or dramatico-musical work; a choreographic work or entertainment in dumb show; a musical composition with or without words; a cinematographic work to which are assimilated works expressed by a process analogous to cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a photographic work to which are assimilated works expressed by a process analogous to photography; a work of applied art; an illustration, map, plan, sketch or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram; a compilation of data to the extent it is protected as a copyrightable work; or a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work.
In the international license, the definition of "work" is supplemented by Section 8(f), which explains that the licensed rights and subject matter take effect according to the national implementation of the treaty provisions in the jurisdiction where the license is sought to be enforced. See the 4.0/Internationalization page for proposals relating to this provision.
As one of the goals for version 4.0 is to craft a license suite that is usable in as many jurisdictions as possible, the permissions granted by the licenses may need to account for other laws that grant copyright-like rights in a particular subset of jurisdictions (such as sui generis database rights discussed above). What should be the limiting principle for choosing which rights to license in 4.0? How should CC identify and then account for such rights in the licenses recognizing that citing every such statute is likely neither feasible nor advisable?
Just as with copyright and neighboring rights, CC intends to draft the license grant and the definitions in a way that accounts for any such rights where they exist but without imposing obligations on licensees where such permissions are not needed. The scope of the rights being licensed (including the exceptions and limitations that apply) will continue to vary (as it has in all prior license versions) depending on applicable law.
Considerations regarding scope of license; other copyright-like rights
Please add other important considerations to this discussion here. In particular, please help CC identify those rights that exist in your jurisdiction that are closely related to, or could interfere with one's ability to exercise, copyright and neighboring rights as expected by licensors and/or licensees.
- Rights that do not exist yet. If in 2025 another copyright-like (gained by creating some fixed expression, not an idea or 3rd party right) sui generis right invented, licensees using 4.0-licensed works would already have the permissions necessary to continue using as they had.
Proposals for defining license scope in 4.0
Please insert proposals for defining the subject matter of the license here. Each proposal should get a sub-heading, a brief description, followed by a list of pros and cons.
We encourage you to sign up for the license discussion mailing list, where we will be debating these and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.
Please add citations that ought inform this 4.0 issue below.
- Presentation by Judge Jay Yoon at the CC Global Summit on 17 September, 2011: "Creative Commons Licenses and Databases"
- CC blog post dated 1 February, 2011: "CC and databases: huge in 2011, what you can do"
- Memo by Paul Keller and Catharina Maracke dated 15 August, 2007: "On the treatment of sui generis database rights in Version 3.0 of the Creative Commons Licenses"
- There may be an implied license to SGDR in addition to copyright, but at a minimum, this does not provide adequate legal certainty for licensees.