Development of Creative Commons licenses

[Daniel Carrera <daniel.carrera AT zmsl.com>]

Hhmmm... excellent question. Very very good question...

Disclaimer: I am not a lawyer, this is just my opinion.

I think the key here is on section 1 of the license, "Definitions":

http://creativecommons.org/licenses/by-sa/2.5/legalcode

You'll see that there are two definitions here:
- Collective Work
- Derivative work

Things that fall under the definition of "Collective Work" do not have 
to be re-licensed as BY-SA, but "Derivative Work" does. So let's try to 
apply those definitions to the cases you listed.


> If I use a by-sa photograph within a post on my blog (or a page on a 
> traditional web site), what is considered “the (derivative) work”? Must 
> my entire blog (and all the work it contains) be licensed by-sa or 
> simply the post?

<quote>
  1.a "Collective Work" means a work, such as a periodical issue,
  anthology or encyclopedia, in which the Work in its entirety in
  unmodified form, along with a number of other contributions,
  constituting separate and independent works in themselves, are
  assembled into a collective whole.
</quote>

I think it's fair to say that the entire blog is a "Collective Work" and 
does not have to be licensed uder the BY-SA. The case of the post is a 
little more difficult:

<quote>
  # "Derivative Work" means a work based upon the Work or upon the Work
  and other pre-existing works, ... any other form in which the Work may
  be recast, transformed, or adapted, except that a work that
  constitutes a Collective Work will not be considered a Derivative Work
  for the purpose of this License.
</quote>

It's not obvious to me whether the individual post would be a derivative 
or not. I guess it depends on the post. If the post is a small art 
gallery of your favourite photos I'd say that's a Collective Work. But 
if it's a technical explanation of hybrid vehicles and you are using 
diagrams that are BY-SA, I'd say that the post is a Derivative Work.

So there's some gray area here.

> Does this change if instead, If I use the photograph as 
> a graphical element within the site (site navigation, a banner etc.) 

I don't know. It's not obvious to me whether that would be a Derivative 
Work or a Collective work. I think I lean towards Collective Work 
because (1) you are not modifying the image and (2) the other parts of 
the site would be independent works of their own. So that seems to fit 
into the definition of a Collective Work. But I'm not positive.

> What if I use it in a blog template that I then sell or give away?

That sounds like a Derivative Work to me, it doesn't look like a 
Collective Work. So I'd say yes.

> I would assume the template must be licensed by-sa but must downstream 
> users license their entire blog by-sa if they use the template?

That sounds like a Derivative Work to me, it doesn't look like a 
Collective Work. So I'd say yes.


Sorry I didn't have full answers, but I hope that some of this was helpful.

Cheers,
Daniel.
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