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Subject: Development of Creative Commons licenses

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  • From: Peter Brink <peter.brink AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] Comments on the second public CC draft
  • Date: Sun, 12 Nov 2006 21:32:11 +0100

Francesco Poli skrev:

I am analyzing CC by-nc-sa v3draft license: why isn't there any
highlighting for the clauses that vanish in the other v3draft licenses? I am especially interested in by-sa and by, since they are the only two
that have some hope to meet the Debian Free Software Guidelines (DFSG
from here on)...
I think that clarity in this respect would be very important.

The by-nc-sa is chosen as the baseline text because it is the most extensive of all the license texts. The other licenses uses a subset of the text of by-nc-sa.

Also do note that meeting the DFSG is not necessarily a design goal for CC...

Clause 4(a) states, in part:

| If You create a Collection, upon notice from any Licensor You
| must, to the extent practicable, remove from the Collection
| any credit as required by clause 4(d), as requested. If You
| create an Adaptation, upon notice from any Licensor You must,
| to the extent practicable, remove from the Adaptation any
| credit as required by clause 4(d), as requested.

This concerns me...
I have previously discussed the issue on debian-legal, but I'm not yet
convinced that this clause meets the DFSG.
The most in-depth (and long) discussion on this topic that I recall
starts more or less with

What I do not understand basically boils down to:

How can a license (allow a licensor to) forbid an accurate credit
and meet the DFSG at the same time?

I think that stating "This Adaptation is based on the Work _foo_ by
James O. Hacker" is an accurate credit, as long as it's true.
Allowing James O. Hacker to force me to purge such a credit seems to
significantly restrict my ability of modifying the work (see DFSG#3).

It's only fair that an author that wants to allow an adaptation, that he feels might compromise his reputation or his artistic integrity, to be published is granted the right to disassociate himself from the adaptation. It would be unfair if an adapter would have the right to make use of the good reputation of the creator of the original work against the will of the author. In any case the author (of course) retains his right to sue the adapter for violating the moral rights associated with the work.

If this restricts DFSG#3, so be it.

Hypothetical example: Walter Writer writes the novel _Good Title_, under
CC-by-v3 and Nazi Ned creates an annotated version, titled _Good Title,
from a neo-nazi Perspective_.
Assume that Nazi Ned states

by Nazi Ned and Walter Writer

Walter requests to be removed from authorship credits. Fairly enough. Ned removes his name.
I don't think that the above credit would be accurate, so no problem

What if Ned stated the following?

by Nazi Ned,
based on Walter Writer's _Good Title_

Is that acceptable?


Or can Walter request (under clause 4(a)) that his name be removed from
the "based on ..." statement?

IMHO: yes...

Clause 4(b) states, in part:

| b. You may Distribute or Publicly Perform an Adaptation 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 license for another jurisdiction (either this or a
| later license version) that contains the same License Elements
| as this License (e.g., Attribution-NonCommercial-ShareAlike 3.0
| Japan).
It's worth noting that CC licenses have a mandatory version-upgrade
mechanism and also a mandatory jurisdiction-change mechanism.
This can weaken the copyleft of ShareAlike licenses, and possibly
trigger weird clauses such as "sue me in Scotland" (found in
CC-by-2.5/scotland, for instance). Authors, you have been warned!

There are good reasons why such clauses exist. In many cases they just clarify the mechanics of international private law, Europe Community law and the territorial principle.

Clause 4(c) states, in part:

| c. You may not exercise any of the rights granted to You in
| Section 3 above in any manner that is primarily intended
| for or directed toward commercial advantage or private
| monetary compensation.

This clause forbids selling the Work (fails DFSG#1) and discriminates
against a field of endeavor (fails DFSG#6).
I hope that clause 4(c) is entirely absent from CC-by and CC-by-sa, but
unfortunately there's no clear indication in this draft.

Only licenses that contains the NC element has this clause.

Clause 4(d) states, in part:

| in the case of a Adaptation or Collection, at a minimum such
| credit will appear, if a credit for all contributing authors
| of the Adaptation or Collection appears, then as part of these
| credits and in a manner at least as prominent as the credits
| for the other contributing authors.

Credit must be "at least as prominent as the credits for the other
contributing authors". Even if the licensor's contribution is not
comparable to others?
I think that this restriction is excessive and fails to meet the DFSG.

I mean: Walter Writer incorporates a short poem by Paul Poet into a
novel that includes 21 chapters written by Cindy Coauthor and 25
chapters written by Walter himself. Walter wants to put a "credit for
all contributing authors" and lists his name (that is, Walter Writer)
and Cindy Coauthor in 12 pt fonts, followed by credit for Paul Poet in
11 pt fonts.
It seems reasonable to me, but, nonetheless, credit for Paul would not
be "at least as prominent as the credits for the other authors": that is
to say, the license wouldn't allow Walter to do so.

If it said "at least as prominent as the credits for the authors of
other comparable contributions", it would be OK, but the actual clause
doesn't say this, unfortunately.

This clause is here to prevent downstream users to try and circumvent the crediting rules.

IMHO it's a fair rule.

/Peter Brink

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