Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

The language you point to is important to get right, so if we need to tighten or explain it further to avoid ambiguity we welcome suggestions.  One alternative is proposed below, but first we should be clear on the policy choice we're trying to implement in the legal code.  

There are only two places in 4.0d1 where we used that language -- Section 2(b)(1) and Section 2(b)(2).  These sections deal with rights other than copyright and neighboring rights that could restrict the licensee's ability to use the work as otherwise expected.  Those sections address three categories of such rights:  moral rights and rights to collect royalties under a collecting society scheme, both of which are handled in 4.0d1 as they are in v3.0; and ancillary rights, which are new in this first draft of 4.0. [1]  Our intention as a matter of policy -- which we attempt to make clear through use of the phrase "to the extent necessary ....to allow You to exercise the rights granted You under this Public License" -- is for the license to only affect the rights in those three categories that would otherwise prevent a licensee from using a work, and for the licensor to retain all others.  Those rights can be multi-faceted depending on jurisdiction.  Moral rights may include one or more of the right of attribution, the right of integrity and so forth.  Same for ancillary rights, which might include catalogue rights in Nordic countries, rights in scientific and critical editions in Italy, and on and on, again depending on jurisdiction.  So depending on which of those rights might actually be implicated, our intention as a matter of policy is to ensure that the licensee gets the permission she needs to use the work as the license intends without forcing the licensor agree to more than she needs to in order to grant permission to use the work. 

We think this is fair as a matter of policy both for licensees (whom we do not want to put at risk vis-a-vis licensors because licensors may hold still rights that could prevent use of the work as intended despite the license) and for licensors (whom we do not think should be asked to give up more rights than necessary for the work to be used as intended).  Feedback on this policy choice is sought. There has already been some discussion on the treatment of collection of royalties by performance rights organization and moral rights on this mailing list.  E.g., 

https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006786.html, thread on NC that evolved into discussion of performance rights organizations, including our rationale for the current approach that continues the policy established in 3.0 (https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006853.html)

https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006863.html, one of several threads discussing treatment of moral rights

Getting the language right is another matter.  If we can provide more clarity in the legal code then by all means will do so.  We have no desire or intention of being deceptive about how the license works, to the contrary!

One possibility is to exclude the reference to rights retained in those two sections altogether as unnecessary.  Other language already makes it clear that the licensor is waiving (or agreeing not to assert) only those rights necessary to allow the license to operate as intended.  See the lead in language to both sections ("To the extent possible and necessary to allow You to exercise....."), and Section 2(c) (reserving all rights of licensor not otherwise specified). 

Section 2(b)(1) might then read in relevant part (with strikethroughs indicating deletions):

(1) To the extent possible and necessary to allow You to reasonably exercise the rights granted to You under this Public License, Licensor waives or, where not permissible, agrees not to assert:

 

(i) Licensor’s moral rights in the Licensed Work; however, Licensor retains all other moral rights Licensor has in the Licensed Work; and

(ii) other ancillary rights Licensor has in the Licensed Work; however, Licensor retains all other ancillary rights Licensor has in the Licensed Work and, (for the avoidance of doubt, patent, trademark, privacy, personality and publicity rights shall not be considered ancillary rights).

A similar edit would be made in Section 2(b)(2) (royalties and collecting societies).

We chose on balance in 4.0d1 to include the extra language so there would be no doubt that if not necessary (or possible) to waive, the licensor retains those rights.  But from a strictly legal drafting perspective, that language is very probably not necessary.  If it helps resolve ambiguity while achieving the policy objective, then we ought consider making these changes.  Of course, other suggestions (and input on the policy choice) are very welcome.

Best,

Diane

[1]  Ancillary rights are new in 4.0, and we want to hear feedback on this addition.  See http://creativecommons.org/weblog/entry/32157 for a brief introduction to the challenge of these other copyright-like rights.

2012/4/20 Evtyushkin Alexander <alex.evtyushkin AT iis.ru>

Dear all,
in some places of the new version there is a text like that:

----------------
[Licensor waives or, where not permissible, agrees not to assert:]

2(b)(1)(ii) other ancillary rights Licensor has in the Licensed Work; however, Licensor retains all other ancillary rights Licensor has in the Licensed Work
and, for the avoidance of doubt, patent, trademark, privacy, personality and publicity rights shall not be considered ancillary rights.
-------

This is really deceptive and ambiguous IMHO, as the statement says that:
(1) Licensor waives "other ancilliary rights", and
(2) Licensor retains "all other ancilliary rights".

How can one make difference, where there are simply "other ancilliary rights", and where there are "all other ancilliary rights"?

The same again goes in the following text:
--------------------
[From Section 2(b) Other Rights]:
(1) To the extent possible and necessary to allow You to reasonably exercise the rights granted to You under this Public License, Licensor waives or, where not permissible, agrees not to assert:
(i) Licensor’s moral rights in the Licensed Work; however, Licensor retains all other moral rights Licensor has in the Licensed Work...
--------------------------
There, again, one should make difference: whether there are Licensor's moral rights or Licensor's "other" moral rights...

Maybe it should be corrected in some way or other, or further elaborated to avoid ambiguity.

Sincerely,
Alex Evtyushkin
Institute of Information Society,
the partner of Creative Commons in Russia

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Diane M. Peters, General Counsel
Creative Commons
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