Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

@Gregor:  As promised last week, I wanted to follow up with a longer 
email in response to your proposal that CC move away from defaulting to 
applicable law. 

As I understand it, the reason CC licenses so 
often rely
 on applicable law is that the licenses are designed to sit atop 
copyright law, so that they work just as copyright law works around the 
world. Copyright law is territorial, which means a work is 
protected according to the national laws
where the copyright is operating, which as a general matter means where 
the work is being used. (e.g, a single work is potentially subject to 
hundreds of different copyright law schemes.) Obviously, this concept 
becomes highly complicated when we are dealing 
with works that have authors from all over the world, like Wikipedia. It
 is complicated even for single author works because the question of 
where the work is used when it's accessed online is not always 
straightforward. 

Nonetheless, the idea is that by relying on applicable law, CC licenses 
are not imposing any obligations or limiting or expanding any rights or 
protections people otherwise have under copyright law. 

The downside to this approach, of course, is that it often results 
in uncertainty. Copyright law is complicated and messy, especially when 
you start trying to tackle the question of what law applies to a 
particular use. In some instances, CC has decided to opt for certainty 
and dictate a particular approach for various issues, as with synching 
as I mentioned in a prior email. There are other examples of this in CC 
licenses as well, and we are compiling a comprehensive list of those 
exceptions, which we will put up on the wiki soon. We can certainly 
consider adding other clarifying language in the licenses. The problem 
then becomes whether we can agree on which particular result we want as 
the outcome. 

Another sidenote: While CC generally discourages 
choice of law provisions in its ported licenses, a handful of licenses 
ported to particular jurisdictions have choice of law clauses. That 
means the license defaults to the law of the specified jurisdiction, 
regardless of whether that jurisdiction's law would otherwise be 
applicable. This approach gives more certainty than relying on 
applicable local law, but it still leaves a lot of unanswered questions 
since even one body of law rarely gives us clear cut answers. 


All of this is to say, there are good arguments both for and against
 opting for applicable law. This page on the wiki delves into this issue
 in more depth: http://wiki.creativecommons.org/4.0/License_subject_matter#Automatic_localization_of_the_license. I urge you (and others!) to add your thoughts and additional 
proposals to this page. Also, of course, please continue to debate 
different proposals on this list. 

best.
Sarah

Sarah Hinchliff Pearson, Senior Counsel
Creative Commons
444 Castro Street, Suite 900
Mountain View, California 94041
phone: +1 650-294-4732 (ext. 493) 
skype: sarah-h-pearson
email: sarah AT creativecommons.org

Please donate to the CC Annual Campaign, going on now! https://creativecommons.net/donate

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Please note: the contents of this email are not intended to be legal
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On Thu, Jan 5, 2012 at 7:42 PM, Gregor Hagedorn <g.m.hagedorn AT gmail.com> wrote:

On 5 January 2012 21:11, Sarah Pearson <sarah AT creativecommons.org> wrote:

The way the licenses currently work, the question of what constitutes a derivative/adaptation is determined by reference to local law. This is the case for purposes of BY-SA and BY-ND. Currently, the only exception is for synching, which is explicitly deemed an adaptation for purposes of the license.

In other words, the determination of whether colorization (or the reverse) is allowed for a BY-ND work has to be answered by reference to applicable law. Different jurisdictions have different standards for copyrightability, so the answer likely varies depending on where the work is being used.

Which is something probably more general to be addressed for CC 4.0: This seems to be a completely unworkable assumption of CC.

What is the local law for a publication that involves people from dozens of countries? On Wikipedia you need to fullfill at least the laws of the server storage facility, of each country of residence of each editor involved, and of the primary audience - please correct me if I am wrong. Of course, anonymity makes it hard to pursue violations, but it becomes more and more common to sue people based on court orders to reveal the identify behind IP addresses or user names.

If I, as a German citizen, upload Belgian photographs of the Atomium (no freedom of panorama and image by necessity made under Belgium legislation), from a Internet provider in the UK to a U.S. server, addressing audiences in all German-speaking countries - what is the local law?

Wikipedia tries to stretch as much as possible:
http://fr.wikipedia.org/wiki/Atomium
illustrates with a toy-version of the Atomium taken in a public park in Austria (which, however, is probably a copyright violation in itself...)

http://en.wikipedia.org/wiki/Atomium
shows the Atomium itself, and gives a fair use rationale for the US, but it is unclear how the uploaded material could ever reach the US without a copyright violation, given that it is impossible to take the photograph legally.

Summary: I believe Creative Commons needs to overcome as far as possible the assumption that there is anything like applicable local law.

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