Development of Creative Commons licenses

[wiki_tomos <wiki_tomos AT inter7.jp>]

Hi. I want to point out some sources of confusion related to CC-BY-SA 
- GFDL compatibility proposal: the way licenses of the original and 
its derivative works have force on users of the derivative.

In the course of piecing my thoughts togehter, I also came to think 
that derivatives of CC-BY-SA 2.0'd works and 2.5'd works cannot be 
released under GFDL. So the compatibility this proposed change establishes 
is quite limited. That's perhaps a more important news than the rest 
of what I discuss here.

But I could be wrong on all these. I am not a lawyer, and I might be 
seeing a non-existing problem. I would be very happy to be proven wrong.


==Problem: variations in the ways licenses affect derivatives==

As I understand it, CC-BY and CC-BY-SA and GFDL grant different 
types of permission when it comes to changing a license for a 
derivative work.

===Case 1: Derivatives of CC-BY'd work===

An example: Alice writes a poem, and release it under CC-BY 2.0 on her 
web page. Bob creates a derivative work of the poem, and make it into 
a song lyric.

CC-BY does not restrict its licensee to change the license of a 
derivative (CC-BY-SA does). So Bob releases the lyric under GFDL.

Is Bob obligated to "keep intact" copyright notice with Alice's 
name or license notice from the poem? - Yes with regards to the 
copyright notice, but not license notice. (section 4.b 
http://creativecommons.org/licenses/by/2.0/legalcode )

But if I understand correctly, there is no way that Alice's poem 
could be under GFDL. The poem is still under CC-BY, and only the 
part which Bob contributed to transform it into a lyric is under GFDL.
The subsequent user has to follow CC-BY for the part that is 
Alice's contribution to the lyric, and GFDL for the part Bob contributed.

(Wheather it is easy to separate Alice and Bob's parts is a practically 
very important question, but I will not think about it now.)

One consequence: when you see a re-used work (like a
song lyric made from a poem), you may not be able to tell if
the original work (a poem) was CC-BY. You have to find and
check the original work. If the original was under CC-BY, you
may have to follow two licenses simultaneously, one for the original
(i.e. poem), and the other for the re-used work (i.e. lyric), when
you use the work.

One sidenote: I think that some people might simply think that a 
derivative of a CC-BY'd work could be entirely under whatever license 
the reuser choses. If this were the case Bob may chose to dedicate 
it to a public domain with minimal change to Alice's poem, and almost 
all the poem goes into public domain. Or, Bob may release it in other 
license which grants permission to strip the work of all the 
attributions. Or Bob may fully copyright the work, and no license to
the public. But actually, Bob can grant permission of his choice only 
to his part, not the part he adopted from Alice. The basic reason is 
that CC-BY does not place a restriction regarding the license of a 
derivative (which CC-BY-SA does), but it does not grant any permission, 
either. That means that regardless of the license of a derivative work, 
the Alice's contribution in the derivative is licensed only under CC-BY.

===Case 2: Derivative of a CC-BY-SA'd work released under GFDL===

Now, the current proposal to make CC-BY-SA'd work's derivative releasable
under GFDL works a bit differently from the example above.

An example: Cathy writes a poem and releases it under CC-BY-SA 3.0 
which allows a licensed work's derivative to be released under GFDL. 
David makes it into a song lyric, a derivative work, and release it under 
GFDL.

In this case, I think the entire work of the lyrics is usable solely 
under GFDL. I mean, Cathy does not expect or require the user of David's 
poem will follow CC-BY-SA. Why? because the original work's license 
(CC-BY-SA) says you can use its derivative by the terms of GFDL.

The only relevant license therefore is GFDL.

A sidenote: One may or may not be able to tell easily if a GFDL'd work is 
derived from a GFDL'd original or CC-BY-SA 3.0'd original. It largely 
depends on how one interprets GFDL, it seems.

A sidenote: Again, I think some people think that the derivative work 
in a case like this is wholly licensed under GFDL. I am not so sure when 
I compare CC-BY and CC-BY-SA terms. The license grants permission to 
create derivative, and pose "restrictions" on how the derivative could be 
released. The restrictions include that the derivative work must be under 
some of the CC-BY-SA licenses (or GFDL in case of CC-BY-SA 3.0).

The fact that it is stated as a restriction attract my attention. 
Restriction on what? By comparing what CC-BY restricts, it seems 
reasonable to interpret that it is the restriction on the license 
status of David's contribution to the work. David must release it 
under one of the CC-BY-SA licenses. Does it mean Cathy's work inhereted 
into the David's is also under the version of the CC-BY-SA license 
that David chose? Comparing what CC-BY says, I am afraid the answer 
is no. CC-BY-SA, like CC-BY, does not "grant" any permission to change 
license of the original work. SA element only "restrict" the license 
status of the part in the derivative work that David creates, without 
"granting" permission for others to use Cathy's part embedded in 
David's work by the license David chose.

So the original work is still under CC-BY-SA 3.0. And the user of its 
derivative work can use it by GFDL's terms because CC-BY-SA 3.0 says 
they can do so. CC-BY-SA 3.0, as Mia's draft shows, specifically exempt 
creators of GFDL'd derivative work from being restricted terms specific 
to CC-BY-SA 3.0 and instruct people to follow GFDL.

For this reason, CC-BY-SA 3.0 is, if only technically, a relevant factor 
in deciding which license terms defines licensee's rights and obligations. 
And this seemingly technical issue, if I happen to be correct, might 
pose a critical question for portability of CC-BY-SA 2.5 and 2.0 works 
into GFDL. That's what the next case I discuss is all about.

===Case 3: Derivative of a derivative of a CC-BY-SA 2.5'd work===

We know that CC-BY-SA 2.0 and 2.5 includes the provision that the 
derivative of the licensed work could be used under the terms of a 
later version of the CC-BY license, or the equivalent license for 
other jurisdiction (such as CC-BY-SA JP). The provision reads like this:

 "You may distribute, publicly display, publicly perform, or 
publicly digitally perform a Derivative Work only under the terms of 
this License, a later version of this License with the same License 
Elements as this License, or a Creative Commons iCommons license that 
contains the same License Elements as this License (e.g. Attribution-
ShareAlike 2.0 Japan)." 
(http://creativecommons.org/licenses/by-sa/2.0/legalcode 4.b.)

This provision comes with a set of conditions. They are stated in the 
4.b. and 4.c. - keep intact copyright notices, give credits, include 
a license notice, etc.

With that in mind, another example: Greg writes a poem, releases it 
under CC-BY-SA 2.0, Helen makes it into a song lyric, releases it 
under CC-BY-SA 3.0. Ian makes it a book of an illustrated short story, 
and wants to release it under GFDL. Can he do that? On what ground?

Helen's part is easier to use. Her contribution to the Ian's book is 
usable by CC-BY-SA 3.0, which lets Ian to chose GFDL for the book. 
And when Ian choses GFDL, the CC-BY-SA 3.0 says, Ian just has to 
follow GFDL only, not the rest of the CC-BY-SA 3.0.

Greg's part, on the other hand, is not under CC-BY-SA 3.0. It is still 
under CC-BY-SA 2.0. So to the part that Greg's creative expression 
is still in the Ian's book, Ian has to follow CC-BY-SA 2.0. What 
does it tell Ian to do? Well, two things. (1) First, Ian "may 
distribute, ... a Derivative Work only under the terms of this 
License, a later version of this License with the same License Elements 
as this License, or a Creative Commons iCommons license that contains 
the same License Elements as this License (e.g. Attribution-ShareAlike 
2.0 Japan)." Could this mean that Ian cannot chose GFDL?
Well, that sounds like a good question to me. And I am afraid that 
the answer is no. Ian could chose CC-BY-SA 3.0 as "a later version of 
this License with the same Licene Elements" but what does it mean 
when the 2.0 license tells Ian "distribute... only under the terms 
of" that license? I am inclined to say that it simply means that 
Ian has to license the derivative to the public under that license 
(3.0). It does not mean Ian can "follow" what 3.0 says, and thereby 
release the book under GFDL.

But let me assume that I am wrong on this point. For some reason 
I am yet to figure out, CC-BY-SA 2.0 does allow Ian to follow the 
terms of CC-BY-SA 3.0, which lets Ian to as the book's license, and 
in which case Ian can ignore all the rest of restriction typical of
CC-BY-SA licenses. But here is the second factor Ian has to consider. 
(2) Because Greg's work is under CC-BY-SA 2.0, Ian has to follow a 
set of restrictions in 4.b and 4.c. This is applicable regardless 
of the license Ian choses for the book.

Whether he choses CC-BY-SA 2.5, 2.0 JP, 3.0, or even when he somehow 
manages to chose GFDL. It means that even if Ian can somehow release 
the book under GFDL, Ian still has to follow the restrictions in 4.b 
and 4.c of the CC-BY-SA 2.0. It is like Ian is bound by two licenses 
- CC-BY-SA 2.0 and GFDL. And probably, Ian is not the last person 
bound by the two licenses. If Jane wants to create a short film based 
on the Ian's book, she too, would have to follow two licenses.

One consequence: Derivatives from CC-BY-SA 2.0'd work, CC-BY-SA 2.5'd 
work, and their international versions will not be able to be released 
by GFDL. Or, those derivatives could be released by GFDL, but will 
remain bound by CC-BY-SA license(s) as well. This is a major obstacle 
for making re-mixing easier.

===Case 4: Derivative of a GFDL'd work ===

Just for a comparison, here is how GFDL works, as I understand it now 
(it may change next time I think about it, since it is not a simple 
license to my small brain..) GFDL is simiar to the second example,
but slightly different.

An example: Jacob writes a poem and release it under GFDL 1.1, with 
license notice saying anyone can use it under "1.1 or any later version" 
of GFDL. Kate makes it into a song lyric, and releases it under GFDL ver. 
1.2. The whole document is usable under GFDL ver. 1.2. alone.
It does not mean that Jacob's contribution to the Kate's derivative is 
licensed under ver. 1.2.
But Jacob had already declared in his license notice that using his 
document under 1.2 is okay.

Kate's song lyric may carry two license notices or just one, depending 
on how Kate interprets GFDL, I think. I cannot tell if one interpretation 
is "wrong" or "less defensible" in some sense.

The interpretation has to do with the beggning of the section 4 which 
says that when you release a derivative work (Modified Version in GFDL's 
terminology), you have to follow sections 2 & 3 (which are for simple 
reproductions) as well as the requirements in section 4.

In section 2, you can find the requirement that license notice be 
reproduced: "the license notice saying this License applies to the 
Document are reproduced" In section 4, you can find the requirement 
that license notice be included: "F. Include, immediately after 
the copyright notices, a license notice giving the public permission 
to use the Modified Version under the terms of this License, in the 
form shown in the Addendum below."

They seem to contradict in part, and vague in part. One intepretation 
would be that the original license notice to be reproduced as it is, 
and new license notice to be added. In the Kate's case, she would 
place one from Jacob (saying that 1.1 or later version of GFDL applies) 
and her own (saying that 1.2 or later version of GFDL applies). 
Another interpretation would be that the "this License," a term 
strangely common in the both sections, means not the exact same
version of the GFDL, but just GFDL of that particular version or 
other versions. So as long as the license notice saying GFDL of 
certain version applies to the document, it might fulfill both
section 2's and 4's requirements. If Kate takes this 
interpretation, what she has to do might be just replace Jacob's 
license notice with hers.

I am currently inclined to take the second one, given the language 
in 4.E. and other parts of 2. But perhaps it is just too technical 
of a GFDL discussion and not for CC-license list..

In any case, Kate's work can be used considering only one version 
of GFDL license, not two.

==Summary==

To summarize, there are
sources of confusion.

1. One may easily miss that a work is a derivative of CC-BY'd original, 
in spite of that the use of the part of such derivative work that 
inherets the creative expression of the original is still bound by 
the terms fo CC-BY. This is not a problem specific to the proposed 
change. It is a source of confusion by itself.

2. Derivatives of a CC-BY-SA 3.0 work, when they are released under 
GFDL, can be used just by following the terms of GFDL only, rather 
than two licenses. This is more convenient, and good. But a bit 
confusing to some users who are familiar with how CC-BY's derivative 
is bound by CC-BY.

A worse problem is that some people who understand CC-BY-SA 3.0 to 
GFDL "porting" might think that CC-BY would work the same way. That 
could occur easily especially given that CC-BY has less restrictions, 
and does not seem to impose any particular restriction to the
use of derivatives. It would be easy to think, "oh, then I can 
simply port it to GFDL and use only following the terms of GFDL," 
for example.

3. Derivatives of a CC-BY-SA 2.5'd work, 2.0'd work, and other 
iCommons SA 2.0/2.5 could not be able to be "ported" to GFDL. This is 
a sad news in itself, but I am afraid that if this happens to be true, 
not many people are aware of it. And not many people will be aware of
it without someone making efforts to inform the public.

4. GFDL seems to be a bit unclear regarding how a derivative of a 
GFDL'd work could be placed under another version of the GFDL. However, 
the conclusion seems to be simple in any case: users do not have to 
consider two or more versions of GFDL when they use a GFDL'd work's 
derivative. This is good, but how many of those people who are familiar
with GFDL's simplicity will realize the issues such as 1. and 3.? I am 
afraid not many.

In a nutshell, because different licenses work differently when it 
comes to how a derivative of a licensed work could be used, those 
who are not very familiar with the differences might fail to follow 
the license terms, or they realize that there is some complexity to be
sorted out, without really able to sort things out clearly.

==Possible solutions==

If (that's a relatively big if) I happen to be more or less right 
on the above points, there is no way that those differences can be 
erased at this point. Differences are not something that originates 
from the proposed changes to the CC-BY-SA terms, but it is in the
texts of previous licenses, like CC-BY-SA 2.0 and CC-BY 2.0.

So I think offering information about the complexity is the 
remaining option. That means things like detailed FAQs, some 
step-by-step examples of how one can apply a different
license to a derivative than its original, guide to identifying 
relevant licenses for a user of a derivative work, and so on.  

But again, I would be very happy that I could be proven wrong. 
I am relatively sure that CC is all for easy-to-use licenses. 
It would not willingly create this kind of complexity. So
after all, maybe complexity does not exist, and there is a way 
to read license texts more clearly and that would lead to the 
conclusion that things are much simpler than I am seeing.
I hope that is the case.

Finally, I apologize that this is such a looong email. And 
thank you for reading this to the end.


Best Regards,

Tomos