Development of Creative Commons licenses

[Peter Brink <peter.brink AT brinkdata.se>]

Given the volume of this thread I've chosen to respond to the tread 
rather than to any individual contributions to the tread.

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What seems to be the issue here is how to understand the term "work" in 
the cc-license; is the term "work" as used in the license the same as 
the copyright concept "work"?

It should be noted that there are (at least) three different variants of 
the concept of "work" under international copyright law: the continental 
European version, the U.K. version and the U.S. version. In day to day 
life these operate in quite similar ways but the theoretical foundations 
of the three are different. I will not present any further comments on 
this issue, but merely note that that this is something one has to keep 
in mind.

The only thing we are told in the license text about the "work" is that 
it's "the copyrightable work of authorship offered under the terms of 
this License" (art 1.e). This does seem to imply that the license covers 
the work in all its present, past and future forms.

However, in 4.a and b we learn that "[y]ou must include a copy of, or 
the Uniform Resource Identifier for, this License with every copy or 
phonorecord of the Work You distribute, publicly display, publicly 
perform, or publicly digitally perform", i.e. a copy of a licensed work 
_must_ have a license statement attached. If someone happens to find a 
copy of a work, which he knows is licensed under a cc-license, and that 
copy lacks the proper license statement; then he is wrong in assuming 
that this copy is available for use under the license. A copy _must_ 
have a license statement attached for it to be legal to use it under the 
terms of the license. It is not intended that all copies of a licensed 
work, regardless of whether they have a license statement attached or 
not, should be available for use under the terms of the license.

It does seems fair, I think, to say that most licensors probably intend 
that only those copies of his work that do have a license statement 
attached, should be available for use under the license. For example, 
assume that an author publishes a printed book. A few months later he 
publishes the same text (i.e. the same work) formatted as a PDF-document 
under the CC-BY license. Does that mean that his intention is that the 
book also should be free to copy and distribute freely? Most likely not, 
I say. IMO there is no need to assume that the licensor intends to give 
away any more rights than needed to make the license work.

If we study the FAQ and the "Things to think about before you apply a 
Creative Commons license to your work" document available at 
"http://creativecommons.org/about/think"; the text repeatedly states that 
the license is non-exclusive and that the licensor is free to license 
the work under any other terms he likes if he wishes to. This certainly 
enforces the notion that only those copies of a work that has a license 
statement attached are available under the license.

I think it's fair to state that a CC-license (as most other open source 
and open content licenses) is a unilateral beneficial legal act, a gift. 
There are no mutual obligations and the licensor offers the licensee to 
use his work with no obligations attached. One may of course attach 
terms to a unilateral beneficial legal act, as the cc-license does. 
However, this does not change the legal classification. Under these 
circumstances, would a court choose to interpret the terms of the 
license restrictively, in favour of the licensor or extensively, in 
favour of the licensee?

When we are dealing with unilateral beneficial legal acts the apparent 
will or intentions of the benefactor become important for our 
interpretation of the terms attached to the gift. This would tend to act 
in favour of interpreting the terms of the license restrictively, in 
favour of the licensor. On the other hand, the licensor has not drafted 
the terms of the license, he might not even fully understand the meaning 
and consequences of the terms; this would tend to lessen the "homeward" 
trend. Ultimately the court would have to base its ruling on the 
language of the license and the apparent intentions of the licensor. 
Where I live (in Sweden) I'm pretty confident that a court would choose 
a restrictive interpretation. The license only needs to define "work" as 
"the physical copy of a work which has a license statement attached to 
it" to be able to operate as intended.

To sum up: IMHO the term "work" in the license should _not_ be 
interpreted as having the same scope as the concept "work" has under 
copyright law. By "work" we should IMO mean "the physical copy of a work 
which has a license statement attached to it". We don't need a more 
powerful "work" concept than that.


/Peter Brink