Skip to Content.
Sympa Menu

cc-licenses - [cc-licenses] CC licenses and applicable law

cc-licenses AT lists.ibiblio.org

Subject: Development of Creative Commons licenses

List archive

Chronological Thread  
  • From: Sarah Pearson <sarah AT creativecommons.org>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: [cc-licenses] CC licenses and applicable law
  • Date: Tue, 17 Jan 2012 14:31:40 -0800

We'd like to kick off a broader discussion about how CC licenses deal with applicable law. This new thread builds upon a thread started by Gregor Hagendorn addressing how the licenses define "adaptation." Note that this issue -- what we call "automatic localization of the license" -- is discussed in depth on the License subject matter page on the wiki.

A few considerations and thoughts:

- CC licenses are designed not to change, impose, or take away any rights or obligations people otherwise have under copyright law. CC licenses achieve this result by working atop copyright law. The terms of CC licenses only apply where permissions are otherwise required under applicable copyright law. In other words, if applicable copyright law makes a particular act an infringement, then the license (or contract, if a court interprets it as such) applies. If, on the other hand, a particular act is not an infringement of copyright because, for example, it falls within an exception or limitation, then the license (or contract) does not apply to that particular act.

- This raises the question of how you determine applicable law. The basic rule for determining whether a copyright has been infringed is to apply the law of the country in which the unauthorized use occurred. For example, if a work created in Country A is infringed in Country B, the laws of Country B will typically decide questions such as whether the use falls within an exception or limitation to copyright, or whether the work is actually copyrightable subject matter.

- The biggest benefit to this approach is that it meets the general expectations of people using the work because it mirrors the way copyright law is applied internationally. This is especially important in the case of standardized licenses like CC licenses. It also respects the principles of copyright territoriality and national treatment. For all of these reasons, it helps to make CC licenses enforceable worldwide.

- The downside is that it can create uncertainty for licensors and licensees. It is not always easy to determine where infringement occurs, especially in the online context. In fact, infringement may occur in more than one jurisdiction.

- A handful of ported licenses have dealt with this issue by including a choice of law provision. While this arguably increases certainty for licensors and licensees, it is problematic and is something CC has attempted to avoid as a matter of policy. Even if the licensors who opt for a particular ported license have a connection to the jurisdiction whose law applies (which is not necessarily the case), once the work is placed online anyone in the world can use it. If the work is released under a license with a choice of law provision, by using the work a licensee may unsuspectingly be subjecting to an interpretation of the license (including terms like whether a use is prohibited or not) based on the laws of a jurisdiction on the other side of the world. This seems unfair. There is also no guarantee a choice of law provision will be enforced in court, especially in a non-negotiated license like those stewarded by CC. This erodes the certainty arguably imposed by including the provision in the first place.

- As an alternative to specifying the laws of a particular jurisdiction, Gregor and others have proposed adding clarifying language in edge cases (as we have done by dictating that synching constitutes an adaptation). This would mean moving away from automatic localization and would make it more likely CC licenses will contradict applicable law in some instances. (For example, a court in a particular jurisdiction may rule that synching is not an adaptation in the future). In certain situations, it may be that we have a sufficient consensus and justification for dictating a particular outcome that we do not mind overriding applicable law. However, there are sure to be situations where that is not the case. After all, the differences between the laws of various countries likely reflect a lack of consensus internationally.

- In Version 4.0, our inclination is to continue with our default to applicable copyright law. However, we think we should make this more clear in the license text, so that it is easy to understand how the licenses are designed to work. Right now, Section 8(f) of the unported license attempts to explain this concept, but we think it could be made much more clear. We do think it also makes sense to debate whether there are specific issues where clarifying language is warranted. Proposals are welcome.

I've added some pros and cons to various proposals on the License Subject Matter page on the wiki. Please add your thoughts there, and feel free to continue the debate on this email thread. Looking forward to your feedback.

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





Archive powered by MHonArc 2.6.24.

Top of Page