[cc-licenses] CC 4.0 Discussion Prompt: License Interpretation

Diane Peters diane at creativecommons.org
Wed Mar 6 20:11:01 EST 2013


Greetings,

This is the final discussion prompt seeking targeted feedback on draft 3 of
4.0.  Here, we highlight the question of license interpretation.  (Fair
warning, this is a lengthy though important email.)

The 4.0 versioning process provides an opportunity to clarify how the
licenses operate and what law governs the scope and exercise of the rights
granted. Providing this certainty would benefit licensors as well as those
using CC-licensed material who want to know whether their particular use is
regulated by the license.  While we have taken pains in drafting 4.0 to
clarify the licenses’ operation, we refrained from introducing a definitive
license interpretation clause in drafts 1 or 2.

In draft 3 we introduce the following provision, found in Section 7(a):


Interpretation of this Public License shall be made with reference to
Copyright and Similar Rights in effect where You use the Licensed Material
unless applicable international law provides otherwise.  For the avoidance
of doubt, this Public License does not, and shall not be interpreted to,
reduce, limit, restrict or impose conditions on any use of the Licensed
Material that would otherwise be free of restrictions or conditions.


*Background*

The key requirement of any interpretation provision is that it properly
account for (and not undermine) the intended operation of our licenses.  CC
licenses are designed to apply and be activated when, and only when, an
underlying, exclusive right held by the creator exists and applies to the
particular use.  We have always crafted our licenses to operate
*as*licenses, even though interpreted as contracts in some
jurisdictions.  The
licenses grant permission when permission is necessary and impose
conditions only when that permission is necessary and exercised.  Our
licenses sit atop the uneven, disharmonized international legal landscape.
 They are not designed to level that landscape by imposing conditions in
the absence of an underlying applicable right.

Given the variations among legal systems around the world, CC licenses
necessarily operate differently depending on the law that applies to use of
the licensed material.  Any interpretation clause must preserve and
reinforce that operating principle.

For license version 4.0, we have considered two main options:

• remain silent and stay the course of earlier license versions[FN1],
leaving licensors and licensees to discern for themselves what rules apply,
and leaving courts (were it to come to that) to make that determination
based on national conflicts of law rules;[FN2] or


• introduce an interpretation provision establishing a default that
specifies either how applicable law is determined or the particular law
that applies.


*Considerations*

There are pros and cons to both approaches.  In draft 3 of 4.0, we have
chosen the second option and specified a default that is also the dominant
and well-accepted rule of interpretation applied in the copyright context –
the law in effect where the material is used.

This choice is a result of several considerations:

(1)  Foremost, this is the widely accepted and most meaningful rule for
both licensors and licensees.  It is applied in the absence of a negotiated
choice of law clause or another dispositive rule established by treaty or
convention.  This rule respects the principle of territoriality, which
provides generally that national laws are limited in their reach to
activities taking place within that jurisdiction.  This rule also guards
against the “exportation” of laws from one jurisdiction to another, a
feature of all CC licenses.

o For example, a licensor of an unoriginal database of uncopyrightable
facts published from a jurisdiction that recognizes “sweat of the brow” as
a basis for granting exclusive rights ought not be able to enforce the
license conditions against uses of the database or those facts by someone
in a jurisdiction where those same rights are not established by national
law.


(2)  This rule is fair and easily understood by licensees, reducing the
chance they are surprised by or run afoul of unfamiliar laws, or they find
themselves in a situation where they are unable to rely on exceptions and
limitations that would otherwise apply.

o For example, if a user downloads and uses CC-licensed copyrighted
material in the United States, she ought be able to rely on the doctrine of
fair use for certain uses, and not be limited to (and expected to know
about) exceptions and limitations contained in copyright laws in force in
other jurisdictions.


(3)  This default provides some measure of protection against forum
shopping and related maneuvering that often puts licensees at a
disadvantage.  Note that this default is not a forum selection clause and
does not restrict licensors from choosing one forum or another, at least
not any more so than they are otherwise. [FN3]

(4)  Including an interpretation clause is preferable to remaining silent
if our objective is to increase certainty for licensors and licensees.
 Additionally, in those rare cases where courts become involved, the
default serves as a uniform starting point for interpretation, while still
preserving the ability of courts to conclude that international law
dictates a different result.

(5)  This default applies to the underlying copyright and similar rights
only, and does not affect the potential applicability of other laws that
may be relevant, such as laws bearing on the effectiveness of disclaimers
offered by the licensor, whether a valid contractual relationship has been
formed (in those jurisdictions where licenses are interpreted as
contracts), and similar.

(6)  This default is consistent with earlier CC license versions,
reinforcing (in its second sentence) that the license should not be
construed to adversely affect applicable exceptions and limitations.

We recognize this may not be the preferred solution for licensors who want
to control definitively and absolutely what law and/or forum should apply.
 But it is the only solution that is consistent with the design and
operation of our licenses, accounts for the complexities that exist
independent of the CC licenses, and provides more certainty and guidance
than currently exists. [FN4]

We look forward to your thoughts on this proposal.  For more information
about some of the other options considered and the reasons why we believe
those unsuitable, visit our 4.0
wiki<http://wiki.creativecommons.org/4.0/Internationalization#Chart_of_interpretation_options>
.

Diane


[FN1] The existing international (unported) versions of the licenses are
silent as to the law applies or how that determination should be made.  The
most relevant direction is found in Section 2 (preserving applicable
exceptions and limitations) and Section 8(f) (identifying the origin of
terminology and clarifying that the scope of the license should be read
consistent with applicable national law).  There exist a handful of 3.0
ported licenses that contain a choice of law
provision<http://wiki.creativecommons.org/Choice_of_Law_in_Public_Licenses#Licenses_with_choice_of_law_clauses>,
and a single 3.0 port that contains a choice of forum provision.

[FN2] In the absence of a choice of law provision, national courts apply
conflicts of law rules of that jurisdiction to determine what law(s) apply.

[FN3] In any litigated dispute, licensors will have a limited number of
choices for where to bring suit.  The doctrine of forum *non conveniens* is
one such limitation.

[FN4]  The alternative – remaining silent – could net the same result but
lacks predictability because it relies on national and regional courts to
apply conflicts of law rules consistently.
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