Development of Creative Commons licenses

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

drew Roberts skrev:
> On Sunday 28 January 2007 11:57 am, Peter Brink wrote:
>> drew Roberts skrev:
>>> 1. Definitions
>>>
>>> e. "Work" means the copyrightable work of authorship offered under
>>> the terms of this License.
>
> In your explanation below, you do not actually address this point.
> Point 3 just > below grants me a license to the work as defined in
> point 1.e. above.
>
> Is there more than one copyrightable work of authorship in this
> discussion, each with a different license, or is there only one
> copyrightable work of authorship and that one has more than one
> license?

We could have both of course. Btw, the scope of the concept “work” 
varies depending on who the creator is. An author can create derivative 
works and independent works based on his own original work more easily 
than another person could. I.e. the difference btw the original and the 
new work need not be as much when it’s the author of the original that 
has created the new work.

>>
>> As you know the license is non-exclusive.
>
> I know this, but I don't think it necessarily raises the issues that
> everyone seems to think it does.
>
[snip]
>
> Why does the license being non-exclusive necessarily imply more
> than this?

This issue will only become a problem when an author has made versions 
of a work having different qualities available. A text might be 
published as a book under ARR and as a PDF but minus all illustrations 
under CC-BY-SA or a picture in colour and high-resolution under CC-BY-NC 
and in b/w and low-resolution under CC-BY-SA. The question then is: can 
a licensee of the lower quality version claim that the rights that he 
has been granted to that (i.e. the low quality) version of the work also 
applies to the high quality version.

As you say the license uses the term work and all reproductions in all 
forms of a work are usually inside the scope of the copyright of the 
work itself. This would then imply that the license covers the work in 
all its forms. But the license is also non-exclusive meaning that the 
licensor has reserved the right to make the work available under other 
terms. If the license would cover all forms of the work then the license 
would in effect be an exclusive grant. There would be no effective way 
for an author to reserve the rights to some forms of the work. The 
implication non-exclusive in this context would (IMO) thus be understood 
so that the author has reserved the right to make use of the work 
outside the scope of the license. And for this to be possible the 
licensor must be able to restrict the application of the license to only 
those forms (or copies if you like) of the work that are specifically 
(by including a license statement with the copy) offered under the license.

> Could you explain to me a beneficial grant of enjoyment? For instance,
> it is not beyond the realm of possibility that I might approach an
> author and offer them a sum of money to put a work of theirs under a
> CC license that I designate. If we reach an agreement and I pay the
> sum agreed upon and the author puts the work under the license I name,
> is this still a beneficial grant of enjoyment?

Yes. There are actually two legal acts taking place here. 1) An contract 
between you and the author where you pay him a sum of money to make his 
work available to the general public (I presume) under a CC license and 
2) the beneficial grant of enjoyment made by the author to the general 
public (i.e. the cc-license).

NB! Please note that this talk about a “beneficial grant of enjoyment” 
is most likely something that is only relevant to civil law jurisdiction...

>
> If I offer a work of my own for five dollars with an ARR or for ten
> thousand dollars with a BY-SA license and someone buys a copy from me
> for ten thousand dollars with the BY-SA license, is this still a
> beneficial grant of enjoyment?

Yes. Again we have two legal acts, the contract between you and the 
buyer and the license. The contract is an onerous legal act the license 
is a beneficial legal act.

>
> So, how far overboard can the author go in their interpretation?
> If I release a bunch of my works BY-SA and people start selling them
> and making bundles of money, can I sue them for not sharing the
> profits with me and claim that I thought that was what share alike
> means?
>
> Also, doesn't this view put a serious kink in CC's desire to have
> streamlined licensing? Is it safe to use a CC work under any CC
> license without entering into actual negotiations with the copyright
> holders and coming to some actual meeting of the minds? (If that
> concept applies in other places, if not, is there something roughly
> similar?)

Well, in general, fulfilled beneficial legal acts cannot be revoked. The 
benefactor is bound by his promise, but on the other hand he has a great 
say in how to interpret the meaning of his promise. The reason is that 
the lawmaker has found it unfair that a benefactor could be forced to 
fulfil a promise in a way that is not according to his intentions with 
the gift. If someone gives something away then he should be the one who 
decides what to give away and under what circumstances.

So from the user of a CC license there is one big advantage with 
treating the license as a beneficial grant of enjoyment – the licensor 
cannot revoke the license. On the other hand he has to accept that the 
licensor has the privilege of construing the terms of the license.

So how far could a licensor stretch the terms of the license? Clear, 
non-ambiguous terms ought to be safe from far out interpretations. 
Ambiguous terms, such as “non-commercial”, would however be open for 
interpretation and it would probably be the licensor who gets to decide 
what it’s meant by “non-commercial”. In your example you use 
“share-alike”. This term is not defined anywhere in the legal code and 
while it’s explained in the deed, the deed is just CC’s explanation of 
the term and if the deed is not used by a licensor then he cannot be 
said to be bound by it. However, the license explicitly (in art. 3) 
states that the license is “royalty-free”. Royalty-free is not a term 
that can be easily misunderstood, it must be considered to be a clear 
and non-ambiguous statement that the licensor is bound by.


/Peter Brink