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= Creative Commons Version 3.0 Licenses — A Brief Explanation =
=''by Mia Garlick, General Counsel Creative Commons''=
=''by Mia Garlick, General Counsel Creative Commons''=
Revision as of 18:30, 23 February 2007
Creative Commons Version 3.0 Licenses — A Brief Explanation
by Mia Garlick, General Counsel Creative Commons
Since April 2005, Creative Commons has been working on versioning up its core licensing suite. The Creative Commons licenses (For an overview of the licenses, visit: ) serve an important vehicle by which many millions of creators clearly signal to the world that they are happy for members of the people to engage in some of the exciting new uses of content that are made possible by digital technologies. Using a CC license, an artist can, for example, invite the public to share their work or mash it up (on certain conditions).
A distinctive feature of CC’s licensing infrastructure is ensuring that it is comprehensible to both humans (the Commons Deed) and machines (the metadata) as well as enforceable in a court of law (the Legal Code, which is the actual license). But another important aspect of the CC licensing system is to ensure that it respected by the community of people who apply our licenses to their content, who use CC-licensed content and who are committed to enabling free culture.
Creative Commons regularly invites and receives feedback about its licenses and how they may be able to be improved to better serve the people who use them and who use CC-licensed content. Obviously, all things can be improved with the benefit of hindsight and experience; also, the environment within which CC licenses are used are always changing. When CC first released its licenses, for example, the use of video and video-sharing sites had not yet been deployed, let alone used to the extent they are today.
We released version 1.0 of our licenses in December 2002 (See CC Weblog, Creative Commons Launches, December 15, 2002, ). Like software releases, we track the different licenses by version. In May 2004, we versioned to 2.0 (See CC Weblog, Announcing (and explaining) our new 2.0 licenses, May 25, 2004, ) and then made a minor tweak to the attribution clause in June 2005 (See CC Weblog, Comments Period Drawing to a Close for Draft License Version 2.5, May 29, 2006, ) and versioned to 2.5. Now, CC is versioning to 3.0. We announced a timetable for versioning to 3.0 back in May 2006 (See Mia Garlick, ‘Getting to Version 3.0,’ May 17, 2006, ); and we have followed the consultation process in the timetable even though the schedule itself has been considerably delayed while we take account of all of the different interest groups that are relevant to CC licenses.
Background to Version 3.0
The process of versioning to 3.0 began back around April 2005 as part of discussions with Debian  and the Massachusetts Institute of Technology (MIT)  about ways to improve the clarity of our licenses. Although discussions with Debian and MIT initiated consideration of a new license version, ultimately, version 3.0 grew to be about much more than these two projects — it focused on internationalizing the “generic” license and international harmonization of the CC licenses. Additionally, it expanded to encompass Creative Commons
As you may know, Debian describes itself as “an association of individuals who have made common cause to create a free operating system”  and the volunteer group has worked together to create an operating system called Debian GNU/Linux. The project and all developers working on the project adhere to the Debian Social Contract . The Debian Free Software Guidelines (DSFG)  form part of the Debian Social Contract and define the criteria for “free software” and so what software is permissible in the distribution.
One part of the Debian community is debian-legal  — a mailing list whose members provide “guidance for the Debian project on, among other things, the acceptability of software and other content for inclusion in the Debian operating system.”  They work primarily involves reviewing software against the DFSG to determine if the packages constitute “free software” per the DFSG. Contributors to the Debian project can then take these determination into account when making decisions about what to include in individual packages.
From time to time the debian-legal list provides a review of a well-known software license to express a rough consensus opinion on whether software released solely under the license would satisfy the definition of “free software” according to the DSFG. Although these summaries are not binding, they do provide some basis for the Debian project to make decisions about individual packages. Although debian-legal work primarily in reviewing software programs and Creative Commons licenses are not designed for software, debian-legal notes that the:
“Creative Commons licenses are still of interest to the Debian project. Debian includes documentation for programs, and many programs included in Debian use digital data such as images, sounds, video, or text that are included with the programs in Debian.” (Id.)
Consequently, debian-legal reviewed the CC licenses and concluded that none of the Creative Commons core licensees were free according to the DFSG and recommended that works released under these license “should not be included in Debian.” (Id.)
It is clear that the licenses that contain a NonCommercial or a NoDerivatives restriction (e.g. Attribution-NonCommercial, Attribution-NonCommercial-ShareAlike, Attribution-NoDerivatives, Attribution-NonCommercial-NoDerivatives ) will never be able to comply with the DFSG because these violate basic principles articulate in the DSFG — specifically, DSFG 1 which requires that a licensee be able to sell copies of the work, DSFG 3 which requires a license to permit the making of derivative works and DSFG 6 which proscribes discrimination against any field of endeavor.
But this should still leave the CC Attribution and Attribution-ShareAlike licenses as DSFG-compliant. On reviewing debian-legal’s issues with these licenses, it seemed to clear to Creative Commons that, for the most part, minor amendments and clarifications to the licenses should be able to address debian-legal’s concerns. (For an outline of these concerns, see ) One topic, however, that was not minor and proved to be much debated as part of the version 3.0 license discussions was the anti-TPM clause in the CC licenses; TPM being technological protection measures such as encryption which have received legal protection in many jurisdictions around the world, which make it a civil (and sometimes) a criminal offence to circumvent these measures.
The Creative Commons licenses prohibit a licensee applying a TPM to a licensed work that restricts the rights granted under the license. (See e.g., clause 4(a) “You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.” of the CC Attribution license ()) In essence, this clause is intended to ensure that a person cannot exercise the freedoms granted by a CC license to apply technologies that restrict those freedoms for others.
In Debian’s view, this prohibition violates DSFG #1 because it prevents a licensee from being able to distribute works in the format of their choice. The consequence of this is that CC-licensed content cannot, for example, be included by a licensee in a Sony Playstation game or other platforms that exist on TPM.
An important thing to note, however, is that this limitation only applied to CC licensees. CC licensors are of course free to license their works on a Sony or other TPM-ed platform whilst also CC licensing it. One example of this is the Beastie Boys track ‘Now Get Busy’ that appeared on the WIRED CD under a CC Sampling license but was then also made available on iTunes.
To avoid interfering with the freedom of the licensed content and allowing a licensee to lock up the content on a TPM-ed platform, Debian proposed that CC’s so-called “anti-TPM” provision to allow a licensee to distribute the CC-licensed work in any format, including a TPM-ed format, provided that the license distributed the work in at least one format that did not restrict another person’s exercise of rights under the license. This proposal became known as the “parallel distribution” proposal.
Creative Commons initially agreed to include the parallel distribution proposal as part of the discussion draft for the Version 3.0 amendments. The rationale for this initial acceptance was that it could accommodate the objectives of the anti-TPM clause (being free culture) whilst also addressing Debian’s concerns that people be free to create works for distribution on TPM-ed platforms.
The parallel distribution proposal did not, however, survive discussions with the Creative Commons International affiliates. The affiliates are responsible for “porting” the CC licenses to their local jurisdiction (discussed in greater detail below) and for fielding a wide range of questions about CC licenses and their implementation in various projects throughout the world. Based on their experience with the diverse communities that use and rely on CC licenses and explaining the licenses to different constituencies, the CCi affiliates were strongly opposed to the introduction of a parallel distribution scenario for various reasons, including: (1) the lack of demonstrated use cases showing a strong need among CC licensees for this kind of an exception to the existing “anti-TPM” language; (2) risks of unduly complicating the licenses which defeats alot of the purpose of CC licenses, namely to be simple and easy to use and to understand; and, (3) the strong opposition to technological protection measures in general by many in the CC community.
CC did, however, include the parallel distribution proposal as part of the public license discussions when those were launched in August 2006 so that the community on those lists could debate the merits of the proposal.
The discussions about the parallel distribution proposal on the cc-licenses email list were very intense. Various participants argued in favor of the parallel distribution amendment on the grounds that the “anti-TPM” clause violated DSFG #1 and achieved little, if anything. Taking the advantage of a Sony Playstation again, if CC-licensed content cannot be included in games for the PS2 platform, the CC licensee is restricted in what they can do with the content, the PS2 gamer cannot play a game with CC-licensed content and Sony are unlikely to notice the absence of this content and will continue along as business as usual with a TPM-ed platform, irrespective of any anti-TPM ban in the CC licenses.
When asked about the extent to which there was a demonstrated need by developers (as licensees) to be able to utilize CC-licensed content in TPM-ed environments, advocates of the parallel distribution amendment argued that it was better to address the problem before a need arose.
However, the overall tenor of the cc-licenses list discussions tended not to favor adoption of the parallel distribution proposal. There was concern that if parallel distribution were permitted in the CC licenses this would reinforce, if not expand, a platform monopoly enjoyed by a TPM-ed platform that only allows the playing of TPM-ed content. Other concerns were voiced that the non-TPMed copy may not be able to played as well as the TPM-ed copy and, generally, that the community was not in favor of supporting a TPM option at this stage.
Whether Debian now declare the CC Attribution and Attribution-ShareAlike licenses to be free according to the DSFG or not — given all negotiated amendments are included in version 3.0 with the exception of the parallel distribution provision — remains an open question.
Certainly, Debian voted earlier in 2006 to allow works licensed under the Free Documentation License to be used in Debian projects. The vote specifically says that the anti-TPM clause in the FDL does not render the FDL incompatible with the DSFG. However, it is not clear whether this treatment is an exception or will also enable the CC Attribution and Attribution-ShareAlike license to also be held to be compatible with the DSFG.
With MIT, their OpenCourseWare (OCW) project was initially launched in September 2002 prior to the formal release of the Creative Commons core licensing suite in December 2002 and thus, used an early version of the Attribution-NonCommercial-ShareAlike license. “OpenCourseWare” is the free and open digital publication of high quality educational materials, organized as courses. Flexible licenses such as Creative Commons licenses are key to enabling the openness of these materials.
MIT’s OpenCourseWare project has initiated a global opencourseware movement. Most recently, the OpenCourseWare Consortium has been formed which involves the collaboration of more than 100 higher education institutions and associated organizations from around the world — including China, France, Japan, the UK, the USA and Vietnam — who are committed to creating a broad and deep body of open educational content using a shared model.
Given CC licenses have improved over time, both CC and MIT wanted to work together to address any issues MIT had about the CC licenses so that MIT could switch over to a more recent version of the CC BY-NC-SA license. However, a key concern for MIT, given it’s illustrious reputation, is to ensure that when people translate and locally adapt MIT content under the terms of the BY-NC-SA license, they make it clear that they are doing so under the terms of the license and not as a result of a special relationship between MIT and that person — essentially, a “No Endorsement” clause.
Given “No Endorsement” clauses are a standard feature of free and open source software, CC felt that it would be easy issue to make this express in the CC licenses. In CC’s view, a licensee should not interpret the attribution requirement of the CC licenses as a basis (whether intentionally or not) to misrepresent the nature of the relationship with the licensor. Certainly, in most jurisdictions laws other than copyright law will proscribe this misconduct by a licensee. But CC agreed with MIT that it was useful to make this express in the license — both to give the licensor comfort and to ensure that the licensee was under no misapprehensions.
This feedback from both Debian and MIT was the impetus for CC commencing the version 3.0 process. However, as many projects do — versioning to 3.0 rapidly developed to encompass new and additional issues. These issues can effectively be described as further internationalization and international harmonization of the CC licenses
When CC’s core licensing suite was first released in December 2002, the licenses were drafted based on US copyright law and referred to as the “generic” license because the license did not identify a specific jurisdiction or governing law to apply to the interpretation of the license. Towards the end of 2003, Creative Commons launched its license internationalization project, which involves the “porting” of the generic licenses to different jurisdictions around the world.
Since this project started, the CC core licenses have been “ported” to over 30 jurisdictions around the world to countries as diverse as Argentina, Australia, Brazil, Croatia, China, France, Italy, Japan, Malaysia, Mexico, South Africa and South Korea.
While the internationalization has taken off far beyond Creative Commons’ expectations and has demonstrated the amazing energy around the globe for a more flexible and permissive copyright licensing approach, two issues arose.
The first is that as Creative Commons’ license internationalization project continued to grow, the “generic” license and the US license were one and the same. For the casual visitor to the CC worldwide page, it seemed that the licenses had not been “ported” to the US, when in fact they had started out there. The challenge becomes though — if CC recognizes a specific US license, on what law should the “generic” license be based?
The approach Creative Commons adopted to respond this issue required further internationalization of our licenses. We decided to spin off the “generic” license to be a US license and recraft the “generic” license to have it utilize the language of the international intellectual property treaties, in place of the language of US copyright law.
The new license relies on the language of the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention. Because treaties are matters of international agreement between countries and, as a general rule, require adoption into national law to be effective in a particular country, simply basing the license wording on these treaties is not, of itself, sufficient. Consequently, clause 8(f) of the new generic specifically provides that the license takes effect according to the corresponding provisions of the implementation of those treaty provisions in the applicable national law.
To reflect the nature of the new “generic” license we also decided to change its name to “unported.” This description is intended to highlight the different nature of the new generic license and to utilize the “porting” terminology that Creative Commons has been using in its license internationalization project since its launch in 2003 to more clearly illustrate the nature of the license that has not been adapted for a local jurisdiction.
The result of this further internationalization is that CC will now offer both an “unported” license and a US license, in addition to the 30-plus ported licenses; the unported license can be selected by those creators to whose jurisdiction CC has not yet ported a license.
International Harmonization – Moral Rights
The second more major issue that arose through the porting process was that different jurisdictions had different approaches to issues relating to moral rights and collecting societies.
Moral rights, to described them briefly, are author’s right that are distinct from the economic copyright that can be bought and sold. Moral rights recognize an author’s personal attachment to their creativity and seek to protect that connection.
While there can be many different moral rights depending on the jurisdiction, the two main ones that are consistently present in most countries around the globe are the moral right of attribution and the moral right of integrity. Obviously, since attribution became a default CC license characteristic with version 2.0 there is less of an issue regarding the moral right of attribution.
However, the moral right of integrity presents a more complex issue for Creative Commons licenses. CC licenses are intended to enable and promote reuse of creative content, particularly the making of derivative works. And those copyright owners who use CC licenses have acknowledged this with over two-thirds of CC licensors consistently choosing to allow derivative works.
But the moral right of integrity, as a general rule, gives the author of a creative work the right to object to alterations or mutilations of the work that are prejudicial to their reputation or honor. Obviously, this has potential to impact the freedom to exercise the right to make derivatives — a derivative will likely always qualify as an alteration of the original work and there may be some instances where it is arguable that it is prejudicial to the original author’s reputation or honor.
Obviously, the first generic version 1.0 license suite released in December 2002 did not mention moral rights because it was based on US copyright law and US copyright law only grants very limited moral rights to works of fine art. However, as the CC licenses began the porting process to other countries, it became necessary for CC licenses to address the moral right of integrity.
To do so, the Creative Commons licenses, with one exception, have taken the approach of not interfering with the author’s moral right of integrity in those jurisdictions that recognize this right.
The one exception is in Canada where the moral right of integrity is waivable. Because Canada was one of the first ten countries to port the CC licenses and one of the first (if not the only) to have a waivable moral right of integrity, on advice of our local affiliate, the CC Canada licenses choose to waive the right of integrity in order to ensure that the licensor’s intention in choosing to permit derivative works was not compromised. However, in all other CC licenses for jurisdictions that recognize the moral right of integrity, the right was retained albeit in different forms; again, on advice from local affiliates.
For example, in most European jurisdictions, the right was expressly retained in the Legal Code because of the strong level of protection for the right in these jurisdictions, as evidenced by the fact that courts would take a dim view of a license that did not expressly include it. In most Latin American jurisdictions, the license was not expressly retained in the Legal Code on the ratioanel that courts would read it in the license. In Japan, the moral right of integrity was retained in those licenses that prohibited derivative works but not fully retained in those licenses that permit derivative works. The local CC Japan team recommended this approach because the moral right of integrity can be interpreted so broadly as to render any change or alteration to the original work a violation of the right.
Although there is overall consistency in the treatment of the moral right of integrity at the Legal Code level (with the exception of Canada) among the CC licenses, now that the licenses have been ported to over 30 jurisdictions, we felt that it was time to harmonize the approach to this issue at both the Legal Code level and the Commons Deed level. The different approaches towards recognizing the right of integrity in the CC licenses arose because, as CC engaged in the novel process of license porting, we became familiar with the different treatment of this right in different jurisdictions. With the benefit of experience with more than 30 different treatments, CC now felt comfortable to adopt a unified approach.
As a consequence, as part of version 3.0 all CC licenses for jurisdictions that recognize the moral right of integrity will expressly retain that right in the Legal Code to the extent that this is feasible given the status of derivative works under the license. In those jurisdictions in which retention of the moral right of integrity may be completely block exercise of the derivative works right (ie. in Japan) the right will be tempered to the extent necessary to enable the exercise of the derivative works right in a manner intended by the licensor.
In addition, because of the importance of the moral right of integrity in protecting both the author’s rights and for its impact on the derivative works right, from version 3.0 the CC Commons Deeds will clearly state that the author retains their moral rights.
International Harmonization — Collecting Societies
Collecting societies are organizations that are established either by private agreements between copyright owners or by copyright law. Societies license works and process royalty payments from various individuals and groups who use copyrighted works either as part of a statutory scheme (compulsory schemes) or by entering into an agreement with the copyright owner to represent the owners interests when dealing with licensees and potential licensees (voluntary schemes). The rationale underlying societies is that it is more efficient and effective for copyright holders to be represented collectively in negotiating and levying license fees.
CC licenses also contained different treatments of whether and how a licensor can collect royalties via collecting societies because of the differences in the status of collecting societies amongst different jurisdictions.
In the United States, where the CC licenses originated, an artist can be a member of a collecting society and use CC licenses for those of their works that suit them. This is because of the rigorous enforcement of antitrust laws in the US during the early 20th century that requires that US collecting societies take a non-exclusive license from artists. This allows artists to then engage in direct licensing, including via CC licenses, to their fans and others who wish to share and remix their music.
Consequently, in the original CC licenses language was introduced into the licenses as part of version 2.0 to clarify what was considered to be the obvious interaction between CC licenses and collecting society membership. This initial approach stated that under those licenses that permitted commercial use (Attribution, Attribution-NoDerivatives and Attribution-ShareAlike) the licensor waived the right to collect both compulsory and voluntary royalties. Under those licenses that permitted noncommercial use only, the licensor reserved the right to collect royalties for any uses that were commercial in nature but otherwise authorized royalty-free noncommercial use of the work under the CC license. This approach reflected the fact that by choosing to apply a CC license to their work, a CC licensor clearly intends to permit “free” (as in both price and freedom) uses under the terms of the applicable CC license.
However, the situation regarding collecting society membership in many other jurisdictions around the world is remarkably different to the US position. Elsewhere, collecting societies take either an assignment of copyright ownership or an exclusive license to a work of the rights that they represent (which tends to include all of the works an artist creates). This means, for the most part, that an artist cannot directly license their works online, including via CC licenses. The consequence of this is that artists who use CC licenses cannot receive voluntary royalties collected by a society because they are not able to become a member of the society.
Thus, the treatment of collecting society royalties in the CC licenses differed according to the jurisdiction — in many jurisdictions the collection of voluntary royalties was not mentioned so as not to give any misleading impression that membership of a collecting society was possible for a CC licensor. In addition, many CC licenses retained the right to collect compulsory royalties in all licenses, both those that permitted commercial use and those that permit noncommercial use only, because of the advice of local affiliates that local law would not permit the waiver of such a right.
In version 3.0, after the benefit of seeing the different permutations of collecting society membership in over 30 countries and having had a dedicated team working on the issue of the interaction of CC licenses and collecting society membership for more than a year, CC has decided to harmonize the treatment of collecting societies in the CC licenses.
The harmonized approach still allows different jurisdictions to adopt an approach towards collective royalty collection that suits their jurisdiction but ensures that this is consistently applied across jurisdictions. Specifically, as regards compulsory royalty collection, the licensor will reserve the right to collect these royalties in those jurisdictions in which this cannot be waived. In those jurisdictions in compulsory royalty collection can be waived, it will be waived completely for those licenses that permit commercial use and reserved only for commercial uses in those licenses that permit noncommercial use only.
For voluntary royalties, the licensor will reserve the right to collect this “in the event that they are a member of a collecting society” that collects such royalties. This then allows for those jurisdictions in which an artist can be a member of a collecting society and use CC licenses. It also allows for flexibility for those artists who are members of collecting societies and use CC licenses anyway or if in future collecting society membership structures do allow some use of CC licenses, to also enjoy the benefits of their membership if their collecting society moves towards being able to collect for commercial uses of CC-licensed works.