Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

We'd like to kick off a broader discussion about how CC licenses deal 
with applicable law. This new thread builds upon a thread 
started by Gregor Hagendorn addressing how the licenses 
define "adaptation." Note that this issue -- what
 we call "automatic localization of the license" --  is discussed in depth on the License subject matter page on the wiki.











A few considerations and thoughts: 

- CC licenses are 
designed not to change, impose, or take away any rights or obligations 
people otherwise have under copyright law. CC licenses achieve 
this result by working atop copyright law. The terms of CC licenses only
 apply where permissions are otherwise 
required under applicable copyright law. In other words, if applicable 
copyright 
law makes a particular act an infringement, then the license (or 
contract, if a court interprets it as such) applies. If, on the other 
hand, a particular act is not an 
infringement of copyright because, for example, it falls within an 
exception or 
limitation, then the license (or contract) does not apply to 
that particular act. 

- This raises the question of how 
you determine applicable law. The basic rule for determining whether a 
copyright has been infringed is to apply the law of the country in which the unauthorized use occurred.
 For example, if a work created in Country A is infringed in Country B, 
the laws of Country B will typically decide questions such as whether the use 
falls within an exception or limitation to copyright, or whether the 
work is actually copyrightable subject matter. 






- The biggest benefit to this approach is that it meets the general 
expectations of people using the work because it mirrors the way 
copyright law is applied internationally. This is especially important 
in the case of standardized licenses like CC licenses. It also respects 
the principles of copyright territoriality and national treatment. For 
all of these reasons, it helps to make CC licenses enforceable 
worldwide. 





- The 
downside is that it can create uncertainty for licensors 
and licensees. It is not always easy to determine where infringement 
occurs, especially in the online context. In fact, infringement may 
occur in more than one jurisdiction. 


- A handful of ported licenses have dealt with this issue by including
 a choice of law provision. While this arguably increases certainty 
for licensors and licensees, it is problematic and is something CC has attempted to avoid as a matter of policy. Even if the 
licensors who opt for a particular ported license have a connection to 
the jurisdiction whose law applies (which is not necessarily the case), 
once the work is placed online anyone in the world can use it. If the 
work is released under a license with a choice of law provision, by using 
the work a licensee may unsuspectingly be subjecting to an interpretation of the license (including terms like whether a use is prohibited or not) based on 
the laws
 of a jurisdiction on the other side of the world. This seems unfair. 
There is also no guarantee a choice of law provision will be enforced in
 court, especially in a non-negotiated license like those stewarded by 
CC. This erodes the certainty arguably imposed by including the 
provision in the first place. 







- As an alternative to specifying the laws of a particular 
jurisdiction, Gregor and others have proposed adding clarifying 
language in edge cases (as we have done by dictating that synching 
constitutes an adaptation). This would mean moving away from automatic 
localization and would make it more likely CC licenses will contradict 
applicable law in some instances. (For example, a court in a particular 
jurisdiction may rule that synching is not an adaptation in the 
future). In certain situations, it may be that we have a sufficient 
consensus and justification for dictating a particular outcome that we 
do not mind overriding applicable law. However, there are sure to be 
situations where that is not the case. After all, the differences 
between the laws of various countries likely reflect a lack of consensus
 internationally. 


- In Version 4.0, our inclination is to continue with our default to 
applicable copyright law. However, we think we should make this more 
clear in the license text, so that it is easy to understand how the 
licenses are designed to work. Right now, Section 8(f) of the unported 
license attempts to explain this concept, but we think it could be made 
much more clear. We do think it also makes sense to debate whether there 
are specific issues where clarifying language is warranted. Proposals are welcome.



I've added some pros and cons to various proposals on the License Subject Matter page on the wiki. Please add your thoughts there, and feel free to continue the debate on this email thread. Looking forward to your feedback. 




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