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cc-licenses - Re: [cc-licenses] Share-Alike with images

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT grimmelmann.net>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Share-Alike with images
  • Date: Mon, 05 Feb 2007 10:24:29 -0500

rob AT robmyers.org wrote:
Quoting Erik Moeller <erik AT wikimedia.org>:

I think the license is currently ambiguous about such uses. However, I
think it would be clearly in line with the copyleft philosophy to
demand free licensing of the combined whole in such a case (not in the
case of mere aggregation within e.g. a collection of photos where
there's no semantic relationship between them). In my discussions with
photographers, I've found that many use NC licenses because they worry
about commercial exploitation of their works. If we could clarify
copyleft in the context of images, many of these fears could be
alleviated.

I think that as long as you don't do anything to the image, you can use it as an
illustration for your proprietary article for example. This often surprises
people, but it makes sense from the point of view of how copyright works
(IANAL). The combination is collective/aggregate, not derivative. A magazine
article doesn't become a derivative work of a photograph because it is
illustrated with it. ShareAlike is triggered by derivation, not collection, and
in fact this is the same for the GPL.

But from the point of view of people's expectations and the ethical coherency of
Free Culture this is ridiculous. Forget the legal implementation of copyleft in
the GPL (which comes after the fact of what copyleft is for ethically). People
just don't expect to see their BY-SA photographs "linked" to proprietary
articles any more than they expect to see their GPL-ed libraries linked to
Word.

Making the SA licenses define the combined article as a "derivative work" has two confusing consequences. First, it surprises some people by imposing a stronger link between the text and photograph than they may expect. Second, it gives "derivative work" a new and unexpected meaning in the context, one that doesn't track the usual categories of copyright law. The CC licenses have generally tracked the common definitions of copyright law, reducing both kinds of confusion.

Given this, I don't know that using the definitions in the SA license to accomplish this goal is a good idea. The more unusual uses there are for familiar terms, the more confusing and complex the license becomes. If the SA license is going to go down this route, it would be better to coin a new term and give it a from-the-top definition of its own.

James




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