Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

Thanks for the added detail.  A few general comments, then inline below.

The overall design of 4.0d1 is intended to align with 3.0.  In 3.0, the licenses provide a general grant of rights otherwise restricted by copyright (Section 3), followed by conditions that attach when a licensee Publicly Performs or Distributes the work (or an adaptation in the non-ND licenses).  Both those definitions in 3.0 turn on whether the activity is vis-a-vis the "public", the qualifier for every activity described other than broadcasting, and the conditions in section 4 (of v3.0) in turn only get triggered when those activities (vis-a-vis the public) take place.

"Share" is intended to replace the need for both definitions in 4.0 and to simplify what are pretty long and sometimes repetitive definitions in 3.0.  But if in doing so the outcome differs with 3.0, then we need to revisit.  As for our simplification effort, a lot of the examples were removed but the essence of exercising rights relative to the "public" was retained.  It may be that we need to add back in more so that activities that ought trigger compliance do not inadvertently slip through.  

Diane

 

On Fri, Apr 20, 2012 at 8:11 AM, Kent Mewhort <kmewhort AT cippic.ca> wrote:

Thanks for your well thought-out responses, Diane. My concerns about the
new "Share" definition remain, as per my inline comments below:
>
> You comment provides a great opportunity to clarify an important
> dimension of the license.Section 2, not the definition of Share,
> contains the grant of rights to licensees, covering actions otherwise
> reserved to the Licensor, including distribution rights. “Share” on
> the other hand is the event that triggers the the license
> conditions.Said differently, only if the licensee both exercises the
> rights granted in Section 2 *and* shares the Licensed Work (or an
> Adaptation in licenses allowing their creation) does the licensee have
> to comply with the license conditions in Section 3.For those familiar
> with GPLv3, you can think of “Share” as the rough equivalent of
> “convey” in this regard.
>
> With that in mind, since Section 2 expressly grants the right to
> “distribute” the Licensed Work, is your concern addressed?
>
No, this is actually exactly what my concern entails: that the license
expressly grants the right to reproduce and distribute a work, but even
a broad exercise of these right does not necessarily trigger the
obligations under Section 3. I think the present definition of to
"Share" is too narrow.

For example, consider a scenario where I find and download and a
collection of songs licensed under CC-BY-SA. I put together a
compilation CD with these tracks, some without any changes and some that
I remix. I burn a few hundred copies and sell them. I don't think I
would have to provide any attribution whatsoever, or share it alike
under the same license.

I clearly implicate reproduction and distribution rights when I sell
these CDs, but not any of the rights listed under the definition of to
"Share". It's not a communication, as least as far as communication
rights are usually defined under copyright law. It's not making it
available "to the public", 

but rather it's a series of individual,
one-to-one commercial transactions.

Right, I think I see your point.  But then, how is it that the same outcome wouldn't result under 3.0, since each activity described in the definitions of Distribute and Publicly Perform relies on the notion of "public" and doesn't specify one-to-one transactions? (for ease:  http://creativecommons.org/licenses/by/3.0/legalcode).   The difference isn't readily apparent.  But regardless, I take your point to be that the license ought ensure that this type of activity and others similarly-spirited ought trigger the conditions.  We'll take a hard look, and hope others on this list weigh in on this as well.

The same could even apply to an online music download service in the
vein of iTunes: no attribution required, no share-alike required. Such a
download music service engages in a series on one-to-one, private
transactions; and, arguably, a download rather than a stream does not
implicate communication rights either.
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--
Diane M. Peters, General Counsel
Creative Commons
cell: +1 503-803-8338
skype:  peterspdx
email:diane AT creativecommons.org
http://creativecommons.org/staff#dianepeters

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