[cc-licenses] Request for feedback: compatibility in BY and BY-NC

Kat Walsh kat at creativecommons.org
Tue Feb 26 15:57:19 EST 2013

The previous post mentioned compatibility for BY-NC-SA. Before
introducing the question of how it works for any of the Share-Alike
licenses, I wanted to introduce the clarification on compatibility in
the BY and BY-NC licenses, which may also be useful background for the
next prompt.

In the current draft, section 3(d) reads:

"In addition to the conditions above, if You Share Adapted Material,
You may only license Your Copyright and Similar Rights in Your
contributions to the Adapted Material on terms and conditions that
allow users of the Adapted Material to simultaneously satisfy those
terms and conditions and this Public License. For the avoidance of
doubt, this Public License continues to apply to the Licensor’s
Copyright and Similar Rights in Adapted Material as provided in
Section 2(a)(4)."

This means that adaptations must be licensed on terms that allow
recipients to simultaneously comply with those terms and the original
license--but they may be licensed under any such license. This
intentionally leaves a lot of flexibility for licensees, but we are
aware that this flexibility could complicate reuse for downstream
users, and our recommendations for best practices will reflect that.

The terms the licensor placed on a work are always in effect, whether
that work is used unmodified or in an adaptation, and whether an
adaptation is under a CC license or any other license. When you use a
work in a way that implicates copyright and related rights (or
database rights, where they apply), you must comply with the terms of
the license even if your use of the work implicates those rights in a
use as part of a new adapted work.

However, when you create an adaptation, you are building on that
licensed work with a contribution of your own copyrightable material.
In the non-ShareAlike licenses, we don't think the license you choose
should dictate which license you use for your own original work. It is
simply necessary that you do not use the original you're building upon
in a way that is not permitted by the license applied by the the
licensor. If you would like to put your own licensed material into the
public domain, or under a less restrictive license than the work
you're building upon, you are free to do so.

But in that case, what is the license of the adaptation: the work that
contains elements of the original CC-licensed work plus your original
contributions? We think that you can say that this adaptation as a
whole is under a less restrictive license, so long as you make it
clear to downstream users that they may not use any part containing
elements of the BY or BY-NC work in a way that violates the terms of
those licenses.

In general, we believe it is confusing and not very meaningful to
license an adaptation this way (though there are some corner cases
where it is desirable), and there may be some instances when it is not
even possible, such as when a translation is made of an entire work.
We want to be clear that this does not change our basic guidelines and
best practices, which will generally recommend against it,
particularly in cases where confusion is likely. However, we see this
as permitted by the license, which would also be true for previous
versions: this is not intended as a substantive change in 4.0, but a
clarification. It does reflect a position contrary to previous
guidance that CC has offered on using the licenses--that guidance will
continue to be the recommended practice.

On balance, we decided it was best to explicitly acknowledge the
existence of this flexibility for licensees as a legal matter, while
continuing to educate licensors about the practical implications for
reusers. We believe this approach, of recognizing compatibility with
other licenses as permitted so long as the terms of the original CC
license are respected (and providing adequate guidance outside the
license) best enables interoperability with material under other
licenses, while respecting the intentions of licensors.

However, we are open to feedback on whether this language should be changed.


Kat Walsh, Counsel, Creative Commons
IM/IRC/@/etc: mindspillage * phone: please email first
Help us support the commons: https://creativecommons.net/donate/
CC does not and cannot give legal advice. If you need legal advice,
please consult your attorney.

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