Difference between revisions of "4.0/Sandbox"

From Creative Commons
Jump to: navigation, search
(Disclaimer of warranties and related issues: moving to its own page)
Line 7: Line 7:
== Disclaimer of warranties and related issues==  
== Disclaimer of warranties and related issues==  
'''Treatment in 4.0d2:''' 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.
'''Treatment in 4.0d1:'''  The language has been simplified but is intended to operate and have the same scope as its counterpart in 3.0.  We are mindful that a complete disclaimer and limitation of liability may not be allowed depending on local law, and accordingly have prefaced the provision with the qualifier found suitable by several jurisdictions for 3.0 ports, “To the greatest extent permissible,...”  We expect that for some, this provision may be inadequate.  We want to hear ideas on both improving this provision, and the proposal for allowing additional terms to the license to allow for more specialized language to be included by licensors.  Please see the [[4.0/Sandbox#Additional_permissions_framework|Additional terms category]] below for a proposal allowing the addition of other terms that could cover specialized disclaimer and limitation language.
Moved to [[4.0/Disclaimer of warranties and related issues]].
== Collecting societies ==  
== Collecting societies ==  

Revision as of 23:32, 4 October 2012

This page is designed as a gathering place for suggestions from the community. If you have an idea for an issue that is not yet addressed in one of the issue pages linked from the 4.0 page, please follow this process:

  1. Review the existing issue pages to see if your new idea would fit on an existing page. If so, feel free to add it yourself.
  2. Please refer to the Legal Code Errata[1] page to see if your concern is addressed here.
  3. If the issue is not already addressed, please refer to the License Versions page to review issues debated in prior versions and the CC license discuss archives.[2] If you want to re-open a conversation on an issue or proposal debated in a prior versioning effort, please summarize and link to that prior discussion, indicating why the issue ought be revisited.
  4. If your issue is not adequately covered, you can't find a proper home on these pages, or you would prefer that HQ decide where it best fits on the wiki, please add the issue in the relevant section below.

Disclaimer of warranties and related issues

Moved to 4.0/Disclaimer of warranties and related issues.

Collecting societies

Treatment in 4.0d2: Unchanged in d2. Please note that based on input from our affiliates in Europe, CC is looking harder at situations involving extended collective licensing arrangements. This review is still underway, and we expect to submit a proposal for consideration to the license discussion list shortly following publication of d2.

Please include a description of the issue(s) with links to relevant references where applicable.

  • Allow collecting societies to collect royalties even where arrangements are otherwise waivable. Specific language proposed with supporting arguments on license-discuss.
    • Treatment in 4.0d1: Not addressed because it seems to undermine the permissions being granted by the license if licensor can both encourage free permission via a CC license and voluntarily collect royalties from those same uses simultaneously. But if collecting society can and will still collect even if licensor is not a member, this may need to be addressed in the licenses.

Choice of law and enforcement issues

Please include a description of the issue(s) with links to relevant references where applicable.

Drafting language and style

Please include a description of the issue(s) with links to relevant references where applicable.

NoDerivs condition

ND has not been nearly as discussed as NC, but it has the same problems of non-freeness and probable over-use. Some of the NC proposals (eg rebranding, dropping, or only keeping one instance of) have ND analogues that ought be separately and thoroughly evaluated.

Other ND issues:

  • Should there be a clarification of what qualifies as "modifications as are technically necessary to exercise the rights in other media and formats"? For example, "algorithmic reductions of the color depth of still or moving images" in case printing in greyscale or b&w is not unambigously an "other media" or "format" unto itself? Proposed at http://lists.ibiblio.org/pipermail/cc-licenses/2012-January/006530.html

(Font) Embedding Issues

This issue comes from the field of font licensing: if you release a font under a CC-SA license, do all users who embed the font in their PDF documents have to put their PDFs under CC-SA as well?

The CC general counsel seems to believe that they do not. The German legal counsel seems to believe that the font creator can use a "font exception" (known from GNU), number 8. of the license notwithstanding.

I tend to see it differently, as do the vast majority of type designers and font publishers; their postition wrt font embedding is very clear and many of them have updated their license agreements to allow font embedding under restrictive terms (subsetting required etc.).

I'm coming from the font side of this, but I can imagine that there are many more fields, where this "if you modify the work itself, you need to reciprocate, if you just use it as it's supposed to be used without modifications, mere embedding/aggregating do not legally force you to use CC-SA" would be beneficial.

Fair use baseline

"CC 4.0 could promote fair use by guaranteeing fair use internationally. Just as the main terms of the CC license are applicable internationally, instead of simply specifying that the CC license doesn’t interfere with or supersede one’s common law or statutory fair use or fair dealing rights (because, you know, how could it?), the CC licenses could guarantee some uncontentious and shared subset of fair use/fair dealing rights as part of the license."

Above from http://blog.tommorris.org/post/14114334627/creative-commons-4-0-proposal-fair-use-baseline and discussion at https://plus.google.com/110114902730268262477/posts/PTnqvZHKEBT

Time-based switch to more freedom

Discussed in cc-licenses thread http://lists.ibiblio.org/pipermail/cc-licenses/2011-December/thread.html#6453

Which freedoms gained?

  • A particular condition (NC) is dropped after time (eg BY-NC-SA work becomes available under BY-SA in a specified year)
    • This being intended as a replacement to current NC-licensing, i.e. CC 4.0 only offer NC licencing with a time-limited NC-condition, thus continuing to support desire for NC, but limit its attractiveness, changing BY-NC to BY or BY-NC-SA to BY-SA after 5, 10 etc. years
  • All conditions dropped after time (eg work under any CC license also becomes available under CC0 in a specified year)


  • Time out of conditions built into all CC licenses, or those specifically to which relevant condition (eg NC) applies; eg part of using BY-NC-ND 4.0 is that work is available under CC0 after 28 years.
  • Specific time-out duration is up to licensor; support built into license deed, license name and equivalent URLs, eg BY-NC(14)-SA for condition expires 14 years after publication or BY-NC(until-2017)-SA for year condition expires. This supports automatic discovery of originally closed-content licenced works that have become open content in the meantime.
  • No specific support for time-out of conditions built into license, but documented, perhaps encouraged in license chooser, means of stipulating a work's availability with more freedoms after some time duration

In the wild examples:

Related, abandoned mechanisms:

  • Pros:
    • Grants more freedoms to licensees sooner than waiting for expiration of copyright term.
    • Gives more public visibility to the creator community's perception on copyright terms duration
  • Cons:
    • Increases license complexity.
    • CC+ mechanism already exists for licensors who want to grant more permissions beyond standard license terms.
  • Other comments:

Additional terms framework

  • Treatment in 4.0d2: Simplified language carried over from 3.0. Importantly, we have retained Section 8(e) from 3.0 and clarified how the CC license operates with other agreements or understandings. CC cannot prevent licensors from reaching additional agreements related to the work, whether through terms of use or otherwise. But we do feel it important to make clearer that those understandings and agreements are separate and independent of the CC license itself, and where those conflict as regards use of the work itself, the terms of the CC license control. Note also that the final CC notice specifies that as a matter of trademark, CC’s logos and trademarks cannot be used in connection with a modified license or those other understandings and agreements.

Occasionally, there is a need to attach additional terms to a licensed work. A proposal for dealing the issue was raised on license-discuss.

The GPL dealt with this in v.3 with the following provision:

Additional permissions are terms that supplement the terms of this License by making exceptions from one or more of its conditions. Additional permissions that are applicable to the entire Program shall be treated as though they were included in this License, to the extent that they are valid under applicable law. If additional permissions apply only to part of the Program, that part may be used separately under those permissions, but the entire Program remains governed by this License without regard to the additional permissions.

When you convey a copy of a covered work, you may at your option remove any additional permissions from that copy, or from any part of it. (Additional permissions may be written to require their own removal in certain cases when you modify the work.) You may place additional permissions on material, added by you to a covered work, for which you have or can give appropriate copyright permission.

Essentially, this does three things:

  1. Gives licensors/copyright holders (not licensees!) formal permission to create additional permissions.
  2. Explains when and to what extent the additional permissions apply (either to part of the program, or the whole).
  3. Creates a mechanism for *removing* additional permissions, in case such removal is necessary (primarily for compatibility purposes).
  • Treatment in 4.0d1: CC has not made a proposal in the first draft, but believes that such a provision merits discussion and a proposal for the next license draft. GPL’s provision may provide a starting point for a proposal.


Treatment in 4.0d2: Remains unchanged, with automatic termination still applying in the event license conditions are violated. However, this remains an open item for discussion between d2 and d3, as we explore more concertedly the inclusion of a cure period or similar provision more in line with those found in the MPL 2.0 and Gnu GPL 3.0.

  • Relax termination provision. Any minor mistake that would result in the license compliance would lead to termination. The license says " terminate automatically upon any breach" (taken from CC BY 3.0 Unported). Any licensee is banned from using the work again, even to correct his mistake. This is too harsh, given that when a licensee wants to post something to a blog, wiki, or an SNS, there are a large number of things he needs to do. Quick correction to comply with the license should be accepted if nothing else. Please also see the termination criteria for GPLv3 (Art.8) and GFDL v1.2 (Art 9). These languages were introduced by the latest revision, before which the criteria was as harsh as the CC licenses'.
  • Consider having a GPLv3-style compliance window.
    • Copyright is very much subject to interpretation of grey areas (e.g. fair use). And CC-licensed works are very often mashed and remashed to the point where it is very difficult to ensure that you are complying with the attribution requirements of every single author.
    • Does not make sense in the context of culture as many cultural products are valuable for very short timeframes (think photo's documenting a current event). Given this non-compliance should lead to termination immediately.
    • both of the above are from this thread on license-discuss.
  • Consider not immediately terminating people who failed to attribute properly when the attribution required is not very clear.
    • When title, name of an author, etc. are not supplied, one does not have to include those elements in the attribution. This seemingly simple and clear rule is not very easy to interpret in real contexts. Think, for example, a Flickr page [1] where the user has both account name and what looks like his real name. Which are the names of the author of the work to be attributed? Is there a chance that the user is merely a Licensor and not an author? We often find photos with titles made of some serial number and prefix. [2]. Is title "supplied" here? And think what is the notice referring to the notice on that page. Is the text "some rights reserved" the only such notice? How about a tiny icon representing a CC-BY license? How about the word "Attribution" that appears when you put the mouse over that icon? And then there are questions about copyright notices and notice referring to warranty disclaimers. At the bottom of a Flickr page is copyright notice by Yahoo! and a link to, among other things, its terms of use, which include warranty disclaimer. Are these something to be included as a part of attribution? That is probably up to the relationship between Yahoo! and the Flickr user, mainly defined by the Flickr's terms of use. A provider of content-sharing platform like Yahoo! may play in some instance the role of Licensor, and in other instances, the provider is a mere third-party. Careful examination of Flickr's terms of use may reveal an answer to that particular question, if one can read the terms of use in English.
    • The challenge could be greater with voluminous works, audio, video, video games, etc. It is easy to fail to detect all the elements for attribution. Are authors' names supplied when a talk-show style podcast introduces all the panelists? Which names among the end credits are authors, and which are not?
    • Failure to answer those questions all correctly would lead to wrong attribution, which in turn results in license termination. That is too restrictive a condition to promote remix and reuse.
    • Major failure for compliance is related to attribution requirements. Ver. 4.0 draft 1 is a lot easier to comply, because of the "reasonableness" standard and consolidation of various requirements into a list format. But my suspicion is that it could do more.
    • A potentially related proposal is to make attribution machine-readable (Proposal 10, 4.0/Attribution_and_marking). This, if introduced certain way, may resolve most the issue discussed here in a very different way.
  • A major consideration should be longevity of CC licenses. The solution to cure a terminated license by contacting the licensor will become less and less practical as time goes by. Furthermore many licensors choose to be not contactable right from the beginning (e.g. anonymous Wikipedia contributors).
  • Reinstatement and retroactive cure are two separate proposals. A draft proposal for a reinstatement option only:
Section 5 — Term and Termination.
a) This Public License is perpetual for the duration of the term of the underlying copyright or Copyright-like Rights licensed by Licensor. If You fail to comply with any condition of this Public License, this Public License terminates automatically. 
b) For the avoidance of doubt:
1. To use the Work without fulfilling all conditions of this Public License you must obtain express approval from Licensor if the use of the Work is not already covered by legal rights you otherwise have.
2. You may choose to fulfill all conditions of this Public License at a later time, upon which the license will be reinstated from this point in time onward. Should you have used the Work without fulfilling all conditions of this Public License in a way that enables the licensor to claim damages or recover cost from You, a reinstatement will not limit the ability of Licensor to claim damages or recover cost for the period in which the Work was used without a license.
3. upon termination of this Public License for failure by You to comply with any of its conditions, this Public License remains in full force and effect for third parties who received the Work or an Adaptation from You so long as they remain in compliance; and
4. Licensor may release the Work under different licensing terms or stop distributing the Work at anytime; however, doing so will not terminate this Public License.
c) Sections 1, 4, 5, and 7 survive termination of this Public License.

Language Changes

Please aggregate small changes to language used in the first draft here. If you are proposing a change to defined terms or other substantial language, please include the proposal in the relevant topic page on the wiki and do not include it here.

Please remember that language may change through different drafts. The discussion focus for the first draft is high level policy decisions. You may want to save small language suggestions until a later draft.

Other issues for 4.0

Please include a description of the issue with links to relevant references where applicable.

  • Explicitly support an open data commons addressing the different requirements of:
    • public data providers (protect against abuse & misuse of data products - organisations & individuals credibility & reputations need an assurance) see UK Govt Open Government Licence: "ensure that you do not mislead others or misrepresent the Information or its source;" at http://www.nationalarchives.gov.uk/doc/open-government-licence/
      • NOTE: CC licenses already contain a non-endorsement provision (Section 4b of CC BY v.3), which serves a similar function. CC licenses also preserve moral rights, which would often prevent someone from misrepresenting the licensed content. Together, these two aspects of CC licenses are designed to achieve the same effect of the provision in the OGL. Because they track other existing laws (trademark and moral rights), they do this without introducing extra ambiguity.
    • This is not a solution but actually is the cause of the problem, due to two main issues: 1. Because moral rights are very different in different countries, a CC licence may give strong protection in one country, but much weaker in another. So the CC licences are in effect quite different. This is critical in the areas of data licencing, where data providers (as in the UK example) require some protection against misuse. If CC provided some such protection as part of the CC framework, then a genuine common international licence is feasible. 2. Because moral rights are tied up in copyright, trademark,and various areas of legislation, it can take an expert lawyer to work out just what "moral rights" protections are provided under CC. This all becomes too hard, so CC licences are discarded as a viable option. To resolve both these issues, a simple and clear moral rights provision needs to be available under CC, even with a proviso/caveat that it may be subject to limitations under local national legislation.
  • Explicitly support open source, with CC licences consistent with GPL & BSD licences.
    • This is critical in the computer gaming industry, where sound tracks, imagery & code need to have a single consistent licence which is applicable to the entire mix of components. See the discussion about compatibility for more on this topic.
  • CC-licensed works are not share-able on common platforms. One way to address this issue is to change CC license terms.
    • Many content sharing platforms, and even many of the CC-friendly platforms, require that a user uploading a content will grant a license to use the content for unattributed commercial usage, or give some other licenses without obliging them to give proper credits, not to impose an effective TPM, etc. It means that nobody except for rightholders can upload a CC-licensed work to share with others on those platforms. It also means nobody can share any adaptations of a CC-licensed work on those. Just to cite a few examples both Vimeo[3], and blip.tv[4] had terms of use, last time CCJP members checked, that made sharing of CC-licensed works (RiP! Remix Manifesto with Japanese subtitles) impossible if the uploading user is not the rightsholder. Flickr [5] and some YouTube (JP, UK) ToUs seem to have the same conflict with CC licenses.
    • Although the problem is widespread, it may be difficult to come up with a good language to grant platform owners additional license permissions and waive some of the obligations.
    • NOTE: Relatedly, because CC licenses do not allow sublicensing, anyone other than the rightsholder cannot upload a CC-licensed work to platforms like Facebook. The TOU on Facebook and many other platforms require that the uploader grant a license to the platform for all uploaded content. Other than removing the prohibition against sublicensing in CC licenses (something that would have larger implications), there is probably no way to address this problem in Version 4.0.
  • (Consider allowing sub-licensing, for at least adaptations created under BY-SA, but possibly for a lot wider range of uses.) : moved to Treatment of adaptation page (by this edit)
  • Consider explicitly introducing an interoperability clause for CC licenses such CC-BY.
    • Right now, it is not clear without close examination of a pair of licenses, for example CC-BY-US 2.0 and CC-BY-JP 2.0 licenses, if they have the exact same set of permissions and obligations. Scope of use permitted by one of those licenses may be narrower than the other, in which case the works under those two different licenses are not compatible to a maximum degree.
    • NOTE: As a general rule, the basic permissions are aligned across all ported licenses. This is arguably the single most important factor for interoperability. Nonetheless, the ported licenses do introduce complexity into the license suite, which can make it difficult for licensees to understand their obligations under different licenses.
  • Consider providing clearer and more explicit guidance/ provisions as to licenses a licensee using a licensed work can choose to release the work or its adaptation. (In other words, make it easier for people to answer this frequent question: "I want to use this CC-licensed work in a particular way. But under which license can I release the work?"
    • The CC-BY-SA licenses are clear and explicit which licenses a licensee can choose to release an adaptation, IF the licensee is distributing or publicly performing the adaptation. The licenses are not clearly stated, however, the range of choice when the licensee is handing a copy just to a few people, for example. Absent explicit grant of permissions, we should perhaps assume that it is prohibited to choose a later version of the license or CC Compatible license. Absent explicit requirement, perhaps it is okay to even fully copyright the adaptation.
    • "You may not sublicense the Work" is a phrase found in multiple licenses. But such prohibition seem to exist only for a limited type of use - namely, when a licensee "distribute or publicly perform" "the Work". When a licensee shares the work within a small group (which is probably not "distribution" according to CC licenses definition section) or deals with adaptation, there is no such restriction. Does that mean a licensee can sublicense, then? I suppose not, because there is no explicit grant of such permission. But is it arguable in some cases that some implicit grant exist? I don't know the answer to that, but this is at least confusing for non-experts who want to read and understand license.
    • But some would say that this issue may be better handled by a FAQ entry than a provision legal code.
  • Require releasing the source when releasing a finished product under a CC license, similar to requirements in GPL.
    • Determining what counts as "source" in creative works can be very difficult.
    • Discussion at this thread on license discuss and elsewhere on the 4.0 wiki.
  • Consider an even clearer labeling of license conditions, esp. regarding place of anti-TPM clause.
    • The public draft version 1 does a great job in organizing license conditions. But it could be improved, it seems. The clause dealing with technological protection measure is currently placed at Section 3 (a)(3) and (b)(3). However, prohibition of TPM that contradicts with license grant is not something people would understand as an attribution requirement. It is better if the anti-TPM clause be separated into something like, say, (c) Technological Protection Measures.
    • Another justification for treating anti-TPM clause as a separate subsection is that, judging from email inquiries CC Japan receives, many people mistakenly think that the license deed exhausts the license conditions, and misses additional conditions such as anti-TPM clause. Having a subsection and subsection title would visually clarify that CC-BY-NC-SA is not just about attribution, non-commercial, and share-alike.
    • Similarly, if there is going to be a clause like "You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License." (taken from CC BY-NC-SA 3.0 Unported 4.a.), that could be bundled with the anti-TPM clause in the same subsection (its title could be "restriction of recipients' ability to use Licensed Work," for example).
    • On a related note, the 4.0/Draft 1 currently place this imposition of restriction of recipients' ability to use Licensed Work in Section 6 (c). The title for the section is Miscellaneous. Given the language that "If You fail to comply with any conditions of this Public License, this Public License will terminate automatically " (Section 5 (a) emphasis added by me), and that the title for Section 3 is License Conditions, it would perhaps be better to place that part of 6 (c) to Section 3.


  1. This page contains a list of errors and typos in the licenses. CC will be making changes in 4.0 to correct these problems (assuming the problematic text remains in 4.0).
  2. TK