Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Monday 03 December 2007 15:32:56 Terry Hancock wrote:
> Gregory Maxwell wrote:
> > On Dec 2, 2007 9:24 PM, Fred Benenson <fred.benenson AT gmail.com> wrote:
> >>Question for the lawyers here -- even if we *wanted* to add stronger
> >>copyleft to a CC license, say creating CC-BY-SA+, could we?
> >>
> >>Isn't the whole problem here that the licenses rely on the various
> >>definitions of "derivative works" for different mediums?
>
> Well, IANAL, but...
>
> This may or may not be included in the concept of copyleft as used by
> the GPL, but I think the argument that the definition of "derivative" or
> "copy" under copyright law constrains the extent of copyleft is false.
>
> Copyleft is presented not as an alternative to copyright, but rather as
> an alternative to *financial compensation*. Instead of charging a fee
> for the license to use the copyrighted material, we insist on conditions
> of use. Thus the limits are on what kind of fee can be charged for a
> copyrighted work, not what works can be copyrighted.
>
> So long as the use is not something which is otherwise allowed under
> "fair use" or "fair dealing" provisions of copyright law, then, you need
> a license to use the work. In principle, just about any
> legally-admissible contract requirement can demanded as a condition of
> that use (you are always free not to use the work -- too harsh a set of
> requirements is like charging too much money for a work).
>
> Of course, courts have in the past invalidated contracts on the basis
> that they make "unreasonable" or "unexpected" demands that were not
> understood by the party agreeing to the contract, and so invalidated
> contracts. So, there's probably *some* limit on copyleft. But I'm
> reasonably certain that "what could be considered a derivative under
> copyright law" is not it.
>
> So I think an SA+ license is definitely possible.

Bingo. Just because the SA has been tied to derivatives in the past does not 
mean this is the only possibility.

One could tie in to the right to copy or the right to distribute just as well.
>
> For it to be *desirable* though, I think it is essential that it treat
> containing "collections" more liberally than it does "derivations".

Not necessarily if you had both a weak and a strong version available 
depending on the wishes of the party giving the license.

That said, making it the way you say may be even better still and I think off 
the cuff that it will be. It is certainly worht discussing further to look 
for those extra benefits nad how to craft the language.

> That's a matter of keeping the license "free enough", not keeping it
> "legally feasible".

So. (Using BY-SA+ here to mean the strong version) BY-SA+ could do something 
like this:

Use a BY-SA+ work in a collection (or anywhre else that a copyright or 
related 
work arises) requires that the collection use an approved Free license. It 
also requires that the other parts of the collection also use approved Free 
licenses.

We certainly don't want to run into unnecessary copyleft clashes with 
licenses 
that have the same general aims but, due to the way copyleft generally works, 
can't be mixed, as you state below.
>
> While I do find there are times when publishing free-licensed images
> alongside non-free text is desirable, this is not my main concern. For
> such functionality, the CC-By license is nearly as good as CC-By-SA
> anyway, so I agree with that point.
>
> For me, the main fear is a collision between various copyleft
> free-licenses, who all have essentially the same intent, but necessarily
> have different implementations, because they are designed for different
> creative domains.

Really, they could even be designed for the same domains and still have this 
problem.
>
> For example, what about CC-By-SA images used as media in a GPL computer
> game?  It would be quite easy for text intended to bind a text article
> associated with illustrating By-SA images to also include that case. And
> if it did, then it's possible that the image license would demand that
> the program be licensed By-SA -- which even By-SA advocates say is
> ill-advised, because programs are different media with different
> requirements that must be considered.
>
> We don't want to force the images to be GPL, either, because it doesn't
> apply well to images. And we don't want to mess with dual-licenses if we
> don't have to (this is surely why By-SA/GFDL compatibility is so
> important to Wikimedia).
>
> So, we want to keep copyleft from crossing certain domain barriers and
> binding works in unreasonably restrictive ways. We risk making the
> "commons" as difficult to navigate as the fenced-in world of
> conventional copyright.
>
> An "SA+" option would undoubtedly improve the incentive for some
> producers, but it has to skirt this danger, IMHO, in order to be useful
> for the public good.

Like I say, I am not sure this is true, but since making it so seems possible 
and better than not doing so, it should be done if we are going to make a 
strong copyleft license.
>
> Cheers,
> Terry

all the best,

drew