[cc-licenses] TPMs & adaptations

Sarah Pearson sarah at creativecommons.org
Wed Jan 16 12:26:19 EST 2013


A question<http://lists.ibiblio.org/pipermail/cc-community/2012-November/008064.html>was
raised on the cc-community mailing list about the reach of the TPM
restriction. Our answer (cut and pasted below) relates to Version 4.0, so
we wanted to share the response on this mailing list as well.


--
Happy new year! Over the past month or so, we have been working on refining
draft 3 of Version 4.0, and we plan to publish it shortly. In the meantime,
we wanted to follow up on this particular thread about the reach of the TPM
restriction because it touches on a lot of complicated issues relating to
the licenses. Most importantly, it hinges on what happens to the original
work when an adaptation is created. We have done a lot of thinking about
these issues over the last several weeks as we endeavored to make the
concepts more clear in Version 4.0.

The starting point to answer this question is a fundamental concept about
how adaptations work under copyright law. That is, the rights in an
adaptation never touch the rights to the original from which it is
derived.[1] That means an adaptation is always subject to two copyrights:
in the CC license context, one copyright is held by the adapter with
respect to the new contributions, and one is held by the original licensor
with respect to the original.

This helps to answer the question about the TPM restriction because it
demonstrates how adaptations necessarily include the licensed work.
Therefore, if you are not allowed to lock down the licensed work by
applying TPMs, by default you are not allowed to lock down an adaptation by
applying TPMs, at least to the extent the TPMs restrict access to the
original licensed work.

This same concept applies to all obligations in the licenses that apply to
the licensed work, including the provision dictating that the CC license
always follows the original work, offering a new license to downstream
recipients when licensees share the work, and to the provision prohibiting
licensees from imposing new legal terms or conditions upon the original
work. Because adaptations necessarily include the licensed work, downstream
recipients of adaptations get access to the original work under the
original CC license without any new terms and conditions imposed by the
licensee.

This might start to sound a bit like ShareAlike, but there is an important
difference, and it relates to the fundamental concept explained above:
there are always at least two copyrights in an adaptation. With that in
mind, under the ShareAlike licenses, licensees are required to share their
own rights in the adaptation under identical terms and conditions. In the
non-ShareAlike licenses, licensees are free to share their own rights in an
adaptation on any terms, even though the original CC license always follows
the adaptation with respect to the original work.

In the upcoming draft of Version 4.0, we have made an important change to
the above concepts. We have included a limited rule as to how adaptations
of non-ShareAlike licenses must be licensed. The rule, which will be
included only in CC BY and CC BY-NC, states that adaptations may be
licensed on any terms, so long as people using the adaptation are able to
comply simultaneously with those terms and the original CC license (since
both licenses apply).[2] This ensures that licensees are not releasing
their rights to adaptations in a way that would make it impossible for
downstream recipients to reuse the adaptation as a whole.

Another important change in this upcoming draft of 4.0 relates to TPMs.
Licensors have always had the ability to apply TPMs to their own works (even
though doing so frustrates the purpose of the license because it makes it
difficult for licensees to exercise their rights). In the new draft, we
have included express permission to circumvent any TPMs that are applied by
licensors.[3]

We look forward to hearing from you on these and other important proposed
changes to the licenses during the upcoming public comment period.

best,
Sarah

FNs:
[1] Article 2(3) of the Berne Convention: “Translations, adaptations,
arrangements of music and other alterations of a literary or artistic work
shall be protected as original works without prejudice to the copyright in
the original work.” (emphasis added)

[2] The current working language for d3 is: “You may release Your Copyright
and Similar Rights in the Adapted Material on any terms and conditions
provided users of the Adapted Material are able to simultaneously satisfy
those terms and conditions and this Public License.”

[3] The current working language for d3 is: “ You are authorized to
exercise the Licensed Rights in all media and formats whether now known or
hereafter created, and You are authorized to make technical modifications
necessary to do so.  The Licensor waives or agrees not to assert any right
or authority that the Licensor may have to forbid You from making such
technical modifications, including modifications necessary to circumvent
effective technological measures applied by the Licensor.”


Sarah Hinchliff Pearson, Senior Counsel
Creative Commons
444 Castro Street, Suite 900
Mountain View, California 94041
skype: sarah-h-pearson
email: sarah at creativecommons.org
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