Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

rob AT robmyers.org wrote:
> Quoting Erik Moeller <erik AT wikimedia.org>:
>
> > I think the license is currently ambiguous about such uses. However, I
> > think it would be clearly in line with the copyleft philosophy to
> > demand free licensing of the combined whole in such a case (not in the
> > case of mere aggregation within e.g. a collection of photos where
> > there's no semantic relationship between them). In my discussions with
> > photographers, I've found that many use NC licenses because they worry
> > about commercial exploitation of their works. If we could clarify
> > copyleft in the context of images, many of these fears could be
> > alleviated.
>
> I think that as long as you don't do anything to the image, you can use 
> it as an
> illustration for your proprietary article for example. This often surprises
> people, but it makes sense from the point of view of how copyright works
> (IANAL). The combination is collective/aggregate, not derivative. A magazine
> article doesn't become a derivative work of a photograph because it is
> illustrated with it. ShareAlike is triggered by derivation, not 
> collection, and
> in fact this is the same for the GPL.
>
> But from the point of view of people's expectations and the ethical 
> coherency of
> Free Culture this is ridiculous. Forget the legal implementation of 
> copyleft in
> the GPL (which comes after the fact of what copyleft is for ethically). People
> just don't expect to see their BY-SA photographs "linked" to proprietary
> articles any more than they expect to see their GPL-ed libraries linked to
> Word.

Making the SA licenses define the combined article as a "derivative 
work" has two confusing consequences.  First, it surprises some people 
by imposing a stronger link between the text and photograph than they 
may expect.  Second, it gives "derivative work" a new and unexpected 
meaning in the context, one that doesn't track the usual categories of 
copyright law.  The CC licenses have generally tracked the common 
definitions of copyright law, reducing both kinds of confusion.

Given this, I don't know that using the definitions in the SA license to 
accomplish this goal is a good idea.  The more unusual uses there are 
for familiar terms, the more confusing and complex  the license becomes. 
 If the SA license is going to go down this route, it would be better 
to coin a new term and give it a from-the-top definition of its own.

James