[cc-licenses] Clarification for Non-Derivative License: grayscale from color not a derivative work

Sarah Pearson sarah at creativecommons.org
Tue Jan 10 12:12:11 EST 2012


@Gregor:  As promised last week, I wanted to follow up with a longer email
in response to your proposal that CC move away from defaulting to
applicable law.

As I understand it, the reason CC licenses so often rely on applicable law
is that the licenses are designed to sit atop copyright law, so that they
work just as copyright law works around the world. Copyright law is
territorial, which means a work is protected according to the national laws
where the copyright is operating, which as a general matter means where the
work is being used. (e.g, a single work is potentially subject to hundreds
of different copyright law schemes.) Obviously, this concept becomes highly
complicated when we are dealing with works that have authors from all over
the world, like Wikipedia. It is complicated even for single author works
because the question of where the work is used when it's accessed online is
not always straightforward.

Nonetheless, the idea is that by relying on applicable law, CC licenses are
not imposing any obligations or limiting or expanding any rights or
protections people otherwise have under copyright law.

The downside to this approach, of course, is that it often results in
uncertainty. Copyright law is complicated and messy, especially when you
start trying to tackle the question of what law applies to a particular
use. In some instances, CC has decided to opt for certainty and dictate a
particular approach for various issues, as with synching as I mentioned in
a prior email. There are other examples of this in CC licenses as well, and
we are compiling a comprehensive list of those exceptions, which we will
put up on the wiki soon. We can certainly consider adding other clarifying
language in the licenses. The problem then becomes whether we can agree on
which particular result we want as the outcome.

Another sidenote: While CC generally discourages choice of law provisions
in its ported licenses, a handful of licenses ported to particular
jurisdictions have choice of law clauses. That means the license defaults
to the law of the specified jurisdiction, regardless of whether that
jurisdiction's law would otherwise be applicable. This approach gives more
certainty than relying on applicable local law, but it still leaves a lot
of unanswered questions since even one body of law rarely gives us clear
cut answers.

All of this is to say, there are good arguments both for and against opting
for applicable law. This page on the wiki delves into this issue in more
depth:
http://wiki.creativecommons.org/4.0/License_subject_matter#Automatic_localization_of_the_license.
I urge you (and others!) to add your thoughts and additional proposals to
this page. Also, of course, please continue to debate different proposals
on this list.

best.
Sarah

Sarah Hinchliff Pearson, Senior Counsel
Creative Commons
444 Castro Street, Suite 900
Mountain View, California 94041
phone: +1 650-294-4732 (ext. 493)
skype: sarah-h-pearson
email: sarah at creativecommons.org

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On Thu, Jan 5, 2012 at 7:42 PM, Gregor Hagedorn <g.m.hagedorn at gmail.com>wrote:

> On 5 January 2012 21:11, Sarah Pearson <sarah at creativecommons.org> wrote:
>
>> The way the licenses currently work, the question of what constitutes a
>> derivative/adaptation is determined by reference to local law. This is the
>> case for purposes of BY-SA and BY-ND. Currently, the only exception is for
>> synching, which is explicitly deemed an adaptation for purposes of the
>> license.
>>
>> In other words, the determination of whether colorization (or the
>> reverse) is allowed for a BY-ND work has to be answered by reference to
>> applicable law. Different jurisdictions have different standards for
>> copyrightability, so the answer likely varies depending on where the work
>> is being used.
>>
>
> Which is something probably more general to be addressed for CC 4.0: This
> seems to be a completely unworkable assumption of CC.
>
> What is the local law for a publication that involves people from dozens
> of countries? On Wikipedia you need to fullfill at least the laws of the
> server storage facility, of each country of residence of each editor
> involved, and of the primary audience - please correct me if I am wrong. Of
> course, anonymity makes it hard to pursue violations, but it becomes more
> and more common to sue people based on court orders to reveal the identify
> behind IP addresses or user names.
>
> If I, as a German citizen, upload Belgian photographs of the Atomium (no
> freedom of panorama and image by necessity made under Belgium legislation),
> from a Internet provider in the UK to a U.S. server, addressing audiences
> in all German-speaking countries - what is the local law?
>
> Wikipedia tries to stretch as much as possible:
> http://fr.wikipedia.org/wiki/Atomium
> illustrates with a toy-version of the Atomium taken in a public park in
> Austria (which, however, is probably a copyright violation in itself...)
>
> http://en.wikipedia.org/wiki/Atomium
> shows the Atomium itself, and gives a fair use rationale for the US, but
> it is unclear how the uploaded material could ever reach the US without a
> copyright violation, given that it is impossible to take the photograph
> legally.
>
> Summary: I believe Creative Commons needs to overcome as far as possible
> the assumption that there is anything like applicable local law.
>
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