4.0/License subject matter

From Creative Commons
Revision as of 10:14, 11 January 2012 by G. Hagedorn (talk | contribs) (Considerations regarding how the license operates with respect to applicable law)
Jump to: navigation, search

This page presented an issue for consideration in the CC license suite 4.0 versioning process. The discussions have now concluded with the publication of the 4.0 licenses, and the information on this page is now kept as an archive of previous discussions. The primary forum for issues relating to the 4.0 versioning process was the CC license discuss email list. You may subscribe to contribute to any continuing post-launch discussions, such as those surrounding compatibility and license translation. The wiki has been populated with links to relevant email threads from the mailing list where applicable, and other topics for discussion were raised in the 4.0/Sandbox. See the 4.0 page for more about the process.

Page summary: Creative Commons licenses were designed as copyright licenses, granting permissions to make uses of works that implicate copyright and neighboring rights upon certain conditions. The licenses were also designed to avoid imposing conditions on reuse where permissions are not otherwise required by applicable law.

This page is designed to address discussion topics related to the scope of the international license. In particular:

  • There are certain rights very similar to copyright that are not currently licensed (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 (SGDRs), and there may be others that do not fall within the current definition of work in version 3.0.
  • The precise scope of the rights granted in the international license varies depending on the copyright law of the jurisdiction where the license is operating – a form of automatic localization of the license. Accordingly, the scope of the “work” being licensed varies depending on how it is defined under applicable copyright law.

Defining the licensed rights

As noted above, CC licenses were initially designed to address copyright. In version 3.0, the definition of “work” was expanded to include many neighboring rights:

"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.

As one of the goals for version 4.0 is to craft a license suite that allows use of the work consistent with the expectations of both licensors and licensees (and rights closely related to copyright may impede that), 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 below). "Copyright-like" rights are those that overlap with the exclusive rights of copyright and are exclusively held by the same person as the copyright.

What should be the limiting principle for choosing which rights to license in 4.0 if more than copyright? 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? How do we ensure the definition covers rights held by the licensor and not third parties (e.g., publicity rights), or rights that are held by the licensor but not related to or overlapping copyright (e.g., trademark)?

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 exclusive rights that exist in your jurisdiction or region that are closely related to, or could interfere with one's ability to exercise, copyright and neighboring rights as expected by licensors 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) right is established, licensees using 4.0-licensed works would already have the permissions necessary to continue using as they had.

Sui generis database rights (SGDRs)

In their current form, CC licenses do not require attribution or compliance with other applicable license conditions where use of a licensed work triggers SGDRs and not copyright.

In version 3.0 of the licenses, CC attempted to harmonize treatment of SGDRs worldwide by neutralizing those rights in jurisdictions where they existed. This was done by explicitly waiving the license conditions with respect to SGDRs in licenses ported to the laws of jurisdictions where SGDRs are granted if only SGDRs are implicated. The international license and ported licenses in jurisdictions without SGDRs do not address those rights directly. The effect of this differing treatment is as noted above - uses of licensed works that only implicate SGDRs do not require compliance with the license conditions.

CC’s treatment of SGDRs has been criticized for the following reasons:

  1. If someone applies an international license to a database that has SGDRs protection, there is a possibility they are not granting licensees any rights to use the database in a way that implicates SGDRs.[1] Licensees may not realize they could need extra permissions to use a substantial portion of the licensed database, an exclusive right granted database makers in the EU and a few other jurisdictions.
  2. Some major potential license adopters, including the UK government, have indicated they are not willing to use CC licenses because our licenses do not affirmatively license SGDRs on par with copyright (i.e., without waiving conditions when only SGDRs exist).

Regardless of whether CC begins to license SGDRs on the same terms as copyright, there is widespread consensus within the CC community on a few basic concepts:

  • SGDRs 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 SGDRs or that would have the effect of encouraging compliance with license conditions in jurisdictions where SGDRs 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 SGDRs in 4.0

After discussion at the Global Summit in Warsaw, CC intends to license SGDRs SGDRs on the same terms and conditions as copyright and neighboring rights absent yet-to-be-identified, unacceptable consequences. Therefore, the following proposal is the course of action CC is pursuing at this time, though we welcome further debate and discussion. Please add your input on the pros and cons of the proposals identified.

SGDR Proposal No. 1: License SGDRs on par with copyright. The licenses currently cover copyright and neighboring rights. This option would require amending the legal code to license SGDRs in the same manner. To be clear, just as the license currently operates with respect to copyright and neighboring rights, a license of SGDRs would only take effect in jurisdictions where such rights exist.

  • Pros:
  • Cons
  • Other comments:

SGDR Proposal No. 2: (alternative proposal) License SGDRs and waive conditions. This would effectively put the unported license in line with the 3.0 EU ports with respect to SGDRs. The licenses would grant permission to use works implicating SGDRs (where SGDRs apply per applicable law only), but the license conditions (BY, NC, NC and/or SA, as applicable) would not apply to those uses unless copyright was also implicated.

  • Pros:
  • Cons
  • Other comments:

Automatic localization of the license

Regardless of what rights are ultimately covered by the 4.0 license, the scope of the rights being licensed (including the exceptions and limitations that apply) will continue to vary depending on applicable law.

In the international license, the definition of "work" is qualified by Section 8(f) [2], 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 enforced. This provision is tantamount to an “automatic localization” of the international licenses, whereby the licenses operate differently in various jurisdictions depending on national laws.

There are, however, several instances in the licenses where we arguably depart from this principle, at least under the laws of some jurisdictions. The following is a non-comprehensive list of provisions in the international license that could be construed as modifying the default provided by applicable law.

  • Definition of "adaptation" – ‘’[A] work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in time-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.’’ [3]
  • Definition of "collection" – ‘’A work that constitutes a Collection will not be considered an Adaptation (as defined above) for the purposes of this License.’’[4]
  • Section 3(e) – ‘’The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats.’’

In the 4.0 international licenses, should we remove any of these provisions that potentially modify applicable law in some cases? Are there other clarifying provisions we should consider adding in order to increase certainty for licensors and licensees as to matters left to interpretation under applicable law?

Note: A different but related proposal about clarifying language for the NC definition is included on the 4.0/NonCommercial page.

Considerations regarding how the license operates with respect to applicable law

Please add other important considerations to this discussion here.

  • Relying on applicable local law may make CC licenses dysfunctional in a global context. Potentially applicable laws are the law of the countries of residence of each creator or contributor of a work, the law of the countries from which the work or revisions of a work were submitted ("uploaded"), the law of the countries in which the work is being disseminated ("publisher, printer, distribution chain, server location"), the law of the country whose population is being addressed as the audience. In a collaborative Work such as Wikipedia, these can result in dozens of applicable laws, and the lowest common denominator must be determined before a work can be safely re-used. This can amount to prohibitive effort. Contrary to the assumptions above to remove specifications, CC 4.0 should instead increase the specifications, to increase the scope in which a work can be safely re-used based on the license rather than local specifications.
    Proposal: Creative Commons should clarify as many cases as possible to achieve a globally usable unported version. This does not mean that the license makes pretense that these clarifications are complete; it should continue to refer to local law, but specify more cases to achieve safe re-usability. This will be a long term process, one that started in previous versions and should not be reversed by removing clarifications. CC is in a unique advantageous position if it calls upon the experiences of porting into local jurisdictions and tries to fix as many ambiguous or differing positions. Basing CC 3 on the Berne Convention was a major positive step. Adding as many clarifications as possible to CC 4 could be another step.
  • ShareAlike scope. Proposals relating to clarifying the definitions of "adaptation" and "collection" of the SA condition in this regard are further discussed on the 4.0/ShareAlike page.

Proposals regarding how the licenses operate with respect to applicable law

For ease of reference on discussion lists, please do not alter proposal numbers.

App. Law Proposal No. 1: Modify Section 8(f) (or its equivalent) to clarify intended interpretation of license terms and conditions.

  • Pros:
  • Cons:
  • Other comments:

Please add other applicable law proposals here, and number them sequentially.

Related debate

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.

Relevant references

Please add citations that ought inform this 4.0 issue below.

  1. Presentation by Judge Jay Yoon at the CC Global Summit on 17 September, 2011: "Creative Commons Licenses and Databases"
  2. CC blog post dated 1 February, 2011: "CC and databases: huge in 2011, what you can do"
  3. CC memorandum dated 15 August, 2007: "On the treatment of sui generis database rights in Version 3.0 of the Creative Commons Licenses"
  4. CC resources about licensing data and databases: Frequently asked questions about data


  1. While it may be the case an implied SGDRs license has been granted (in at least some jurisdictions), this may not provide adequate legal certainty for licensees.
  2. Section 8(f): "The rights granted under, and the subject matter referenced, in this License were drafted utilizing the terminology of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971). These rights and subject matter take effect in the relevant jurisdiction in which the License terms are sought to be enforced according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law. If the standard suite of rights granted under applicable copyright law includes additional rights not granted under this License, such additional rights are deemed to be included in the License; this License is not intended to restrict the license of any rights under applicable law." (emphasis added)
  3. See CC BY definition for "adaptation."
  4. See CC BY definition for "collection."