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  • From: wiki_tomos <wiki_tomos AT inter7.jp>
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: [cc-licenses] "Which licenses is this work under?" - some sources of confusion
  • Date: 3 Jan 2006 16:00:01 +0900

Hi. I want to point out some sources of confusion related to CC-BY-SA
- GFDL compatibility proposal: the way licenses of the original and
its derivative works have force on users of the derivative.

In the course of piecing my thoughts togehter, I also came to think
that derivatives of CC-BY-SA 2.0'd works and 2.5'd works cannot be
released under GFDL. So the compatibility this proposed change establishes
is quite limited. That's perhaps a more important news than the rest
of what I discuss here.

But I could be wrong on all these. I am not a lawyer, and I might be
seeing a non-existing problem. I would be very happy to be proven wrong.


==Problem: variations in the ways licenses affect derivatives==

As I understand it, CC-BY and CC-BY-SA and GFDL grant different
types of permission when it comes to changing a license for a
derivative work.

===Case 1: Derivatives of CC-BY'd work===

An example: Alice writes a poem, and release it under CC-BY 2.0 on her
web page. Bob creates a derivative work of the poem, and make it into
a song lyric.

CC-BY does not restrict its licensee to change the license of a
derivative (CC-BY-SA does). So Bob releases the lyric under GFDL.

Is Bob obligated to "keep intact" copyright notice with Alice's
name or license notice from the poem? - Yes with regards to the
copyright notice, but not license notice. (section 4.b
http://creativecommons.org/licenses/by/2.0/legalcode )

But if I understand correctly, there is no way that Alice's poem
could be under GFDL. The poem is still under CC-BY, and only the
part which Bob contributed to transform it into a lyric is under GFDL.
The subsequent user has to follow CC-BY for the part that is
Alice's contribution to the lyric, and GFDL for the part Bob contributed.

(Wheather it is easy to separate Alice and Bob's parts is a practically
very important question, but I will not think about it now.)

One consequence: when you see a re-used work (like a
song lyric made from a poem), you may not be able to tell if
the original work (a poem) was CC-BY. You have to find and
check the original work. If the original was under CC-BY, you
may have to follow two licenses simultaneously, one for the original
(i.e. poem), and the other for the re-used work (i.e. lyric), when
you use the work.

One sidenote: I think that some people might simply think that a
derivative of a CC-BY'd work could be entirely under whatever license
the reuser choses. If this were the case Bob may chose to dedicate
it to a public domain with minimal change to Alice's poem, and almost
all the poem goes into public domain. Or, Bob may release it in other
license which grants permission to strip the work of all the
attributions. Or Bob may fully copyright the work, and no license to
the public. But actually, Bob can grant permission of his choice only
to his part, not the part he adopted from Alice. The basic reason is
that CC-BY does not place a restriction regarding the license of a
derivative (which CC-BY-SA does), but it does not grant any permission,
either. That means that regardless of the license of a derivative work,
the Alice's contribution in the derivative is licensed only under CC-BY.

===Case 2: Derivative of a CC-BY-SA'd work released under GFDL===

Now, the current proposal to make CC-BY-SA'd work's derivative releasable
under GFDL works a bit differently from the example above.

An example: Cathy writes a poem and releases it under CC-BY-SA 3.0
which allows a licensed work's derivative to be released under GFDL.
David makes it into a song lyric, a derivative work, and release it under
GFDL.

In this case, I think the entire work of the lyrics is usable solely
under GFDL. I mean, Cathy does not expect or require the user of David's
poem will follow CC-BY-SA. Why? because the original work's license
(CC-BY-SA) says you can use its derivative by the terms of GFDL.

The only relevant license therefore is GFDL.

A sidenote: One may or may not be able to tell easily if a GFDL'd work is
derived from a GFDL'd original or CC-BY-SA 3.0'd original. It largely
depends on how one interprets GFDL, it seems.

A sidenote: Again, I think some people think that the derivative work
in a case like this is wholly licensed under GFDL. I am not so sure when
I compare CC-BY and CC-BY-SA terms. The license grants permission to
create derivative, and pose "restrictions" on how the derivative could be
released. The restrictions include that the derivative work must be under
some of the CC-BY-SA licenses (or GFDL in case of CC-BY-SA 3.0).

The fact that it is stated as a restriction attract my attention.
Restriction on what? By comparing what CC-BY restricts, it seems
reasonable to interpret that it is the restriction on the license
status of David's contribution to the work. David must release it
under one of the CC-BY-SA licenses. Does it mean Cathy's work inhereted
into the David's is also under the version of the CC-BY-SA license
that David chose? Comparing what CC-BY says, I am afraid the answer
is no. CC-BY-SA, like CC-BY, does not "grant" any permission to change
license of the original work. SA element only "restrict" the license
status of the part in the derivative work that David creates, without
"granting" permission for others to use Cathy's part embedded in
David's work by the license David chose.

So the original work is still under CC-BY-SA 3.0. And the user of its
derivative work can use it by GFDL's terms because CC-BY-SA 3.0 says
they can do so. CC-BY-SA 3.0, as Mia's draft shows, specifically exempt
creators of GFDL'd derivative work from being restricted terms specific
to CC-BY-SA 3.0 and instruct people to follow GFDL.

For this reason, CC-BY-SA 3.0 is, if only technically, a relevant factor
in deciding which license terms defines licensee's rights and obligations.
And this seemingly technical issue, if I happen to be correct, might
pose a critical question for portability of CC-BY-SA 2.5 and 2.0 works
into GFDL. That's what the next case I discuss is all about.

===Case 3: Derivative of a derivative of a CC-BY-SA 2.5'd work===

We know that CC-BY-SA 2.0 and 2.5 includes the provision that the
derivative of the licensed work could be used under the terms of a
later version of the CC-BY license, or the equivalent license for
other jurisdiction (such as CC-BY-SA JP). The provision reads like this:

"You may distribute, publicly display, publicly perform, or
publicly digitally perform a Derivative Work only under the terms of
this License, a later version of this License with the same License
Elements as this License, or a Creative Commons iCommons license that
contains the same License Elements as this License (e.g. Attribution-
ShareAlike 2.0 Japan)."
(http://creativecommons.org/licenses/by-sa/2.0/legalcode 4.b.)

This provision comes with a set of conditions. They are stated in the
4.b. and 4.c. - keep intact copyright notices, give credits, include
a license notice, etc.

With that in mind, another example: Greg writes a poem, releases it
under CC-BY-SA 2.0, Helen makes it into a song lyric, releases it
under CC-BY-SA 3.0. Ian makes it a book of an illustrated short story,
and wants to release it under GFDL. Can he do that? On what ground?

Helen's part is easier to use. Her contribution to the Ian's book is
usable by CC-BY-SA 3.0, which lets Ian to chose GFDL for the book.
And when Ian choses GFDL, the CC-BY-SA 3.0 says, Ian just has to
follow GFDL only, not the rest of the CC-BY-SA 3.0.

Greg's part, on the other hand, is not under CC-BY-SA 3.0. It is still
under CC-BY-SA 2.0. So to the part that Greg's creative expression
is still in the Ian's book, Ian has to follow CC-BY-SA 2.0. What
does it tell Ian to do? Well, two things. (1) First, Ian "may
distribute, ... a Derivative Work only under the terms of this
License, a later version of this License with the same License Elements
as this License, or a Creative Commons iCommons license that contains
the same License Elements as this License (e.g. Attribution-ShareAlike
2.0 Japan)." Could this mean that Ian cannot chose GFDL?
Well, that sounds like a good question to me. And I am afraid that
the answer is no. Ian could chose CC-BY-SA 3.0 as "a later version of
this License with the same Licene Elements" but what does it mean
when the 2.0 license tells Ian "distribute... only under the terms
of" that license? I am inclined to say that it simply means that
Ian has to license the derivative to the public under that license
(3.0). It does not mean Ian can "follow" what 3.0 says, and thereby
release the book under GFDL.

But let me assume that I am wrong on this point. For some reason
I am yet to figure out, CC-BY-SA 2.0 does allow Ian to follow the
terms of CC-BY-SA 3.0, which lets Ian to as the book's license, and
in which case Ian can ignore all the rest of restriction typical of
CC-BY-SA licenses. But here is the second factor Ian has to consider.
(2) Because Greg's work is under CC-BY-SA 2.0, Ian has to follow a
set of restrictions in 4.b and 4.c. This is applicable regardless
of the license Ian choses for the book.

Whether he choses CC-BY-SA 2.5, 2.0 JP, 3.0, or even when he somehow
manages to chose GFDL. It means that even if Ian can somehow release
the book under GFDL, Ian still has to follow the restrictions in 4.b
and 4.c of the CC-BY-SA 2.0. It is like Ian is bound by two licenses
- CC-BY-SA 2.0 and GFDL. And probably, Ian is not the last person
bound by the two licenses. If Jane wants to create a short film based
on the Ian's book, she too, would have to follow two licenses.

One consequence: Derivatives from CC-BY-SA 2.0'd work, CC-BY-SA 2.5'd
work, and their international versions will not be able to be released
by GFDL. Or, those derivatives could be released by GFDL, but will
remain bound by CC-BY-SA license(s) as well. This is a major obstacle
for making re-mixing easier.

===Case 4: Derivative of a GFDL'd work ===

Just for a comparison, here is how GFDL works, as I understand it now
(it may change next time I think about it, since it is not a simple
license to my small brain..) GFDL is simiar to the second example,
but slightly different.

An example: Jacob writes a poem and release it under GFDL 1.1, with
license notice saying anyone can use it under "1.1 or any later version"
of GFDL. Kate makes it into a song lyric, and releases it under GFDL ver.
1.2. The whole document is usable under GFDL ver. 1.2. alone.
It does not mean that Jacob's contribution to the Kate's derivative is
licensed under ver. 1.2.
But Jacob had already declared in his license notice that using his
document under 1.2 is okay.

Kate's song lyric may carry two license notices or just one, depending
on how Kate interprets GFDL, I think. I cannot tell if one interpretation
is "wrong" or "less defensible" in some sense.

The interpretation has to do with the beggning of the section 4 which
says that when you release a derivative work (Modified Version in GFDL's
terminology), you have to follow sections 2 & 3 (which are for simple
reproductions) as well as the requirements in section 4.

In section 2, you can find the requirement that license notice be
reproduced: "the license notice saying this License applies to the
Document are reproduced" In section 4, you can find the requirement
that license notice be included: "F. Include, immediately after
the copyright notices, a license notice giving the public permission
to use the Modified Version under the terms of this License, in the
form shown in the Addendum below."

They seem to contradict in part, and vague in part. One intepretation
would be that the original license notice to be reproduced as it is,
and new license notice to be added. In the Kate's case, she would
place one from Jacob (saying that 1.1 or later version of GFDL applies)
and her own (saying that 1.2 or later version of GFDL applies).
Another interpretation would be that the "this License," a term
strangely common in the both sections, means not the exact same
version of the GFDL, but just GFDL of that particular version or
other versions. So as long as the license notice saying GFDL of
certain version applies to the document, it might fulfill both
section 2's and 4's requirements. If Kate takes this
interpretation, what she has to do might be just replace Jacob's
license notice with hers.

I am currently inclined to take the second one, given the language
in 4.E. and other parts of 2. But perhaps it is just too technical
of a GFDL discussion and not for CC-license list..

In any case, Kate's work can be used considering only one version
of GFDL license, not two.

==Summary==

To summarize, there are
sources of confusion.

1. One may easily miss that a work is a derivative of CC-BY'd original,
in spite of that the use of the part of such derivative work that
inherets the creative expression of the original is still bound by
the terms fo CC-BY. This is not a problem specific to the proposed
change. It is a source of confusion by itself.

2. Derivatives of a CC-BY-SA 3.0 work, when they are released under
GFDL, can be used just by following the terms of GFDL only, rather
than two licenses. This is more convenient, and good. But a bit
confusing to some users who are familiar with how CC-BY's derivative
is bound by CC-BY.

A worse problem is that some people who understand CC-BY-SA 3.0 to
GFDL "porting" might think that CC-BY would work the same way. That
could occur easily especially given that CC-BY has less restrictions,
and does not seem to impose any particular restriction to the
use of derivatives. It would be easy to think, "oh, then I can
simply port it to GFDL and use only following the terms of GFDL,"
for example.

3. Derivatives of a CC-BY-SA 2.5'd work, 2.0'd work, and other
iCommons SA 2.0/2.5 could not be able to be "ported" to GFDL. This is
a sad news in itself, but I am afraid that if this happens to be true,
not many people are aware of it. And not many people will be aware of
it without someone making efforts to inform the public.

4. GFDL seems to be a bit unclear regarding how a derivative of a
GFDL'd work could be placed under another version of the GFDL. However,
the conclusion seems to be simple in any case: users do not have to
consider two or more versions of GFDL when they use a GFDL'd work's
derivative. This is good, but how many of those people who are familiar
with GFDL's simplicity will realize the issues such as 1. and 3.? I am
afraid not many.

In a nutshell, because different licenses work differently when it
comes to how a derivative of a licensed work could be used, those
who are not very familiar with the differences might fail to follow
the license terms, or they realize that there is some complexity to be
sorted out, without really able to sort things out clearly.

==Possible solutions==

If (that's a relatively big if) I happen to be more or less right
on the above points, there is no way that those differences can be
erased at this point. Differences are not something that originates
from the proposed changes to the CC-BY-SA terms, but it is in the
texts of previous licenses, like CC-BY-SA 2.0 and CC-BY 2.0.

So I think offering information about the complexity is the
remaining option. That means things like detailed FAQs, some
step-by-step examples of how one can apply a different
license to a derivative than its original, guide to identifying
relevant licenses for a user of a derivative work, and so on.

But again, I would be very happy that I could be proven wrong.
I am relatively sure that CC is all for easy-to-use licenses.
It would not willingly create this kind of complexity. So
after all, maybe complexity does not exist, and there is a way
to read license texts more clearly and that would lead to the
conclusion that things are much simpler than I am seeing.
I hope that is the case.

Finally, I apologize that this is such a looong email. And
thank you for reading this to the end.


Best Regards,

Tomos



  • [cc-licenses] "Which licenses is this work under?" - some sources of confusion, wiki_tomos, 01/03/2006

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