Development of Creative Commons licenses

[Karl Ebener <myonlyb AT vollbio.de>]

Hallo David,

I would like to comment on your first question/issue.

You argue that Section 8, subsection e, prohibits the inclusion of
additional provisions on the scope of the NC clause.

>From a German law-point of view (which is the only one I feel competent
to comment on), this is not entirely correct:

1) You are right that Section 8, subsection e as cited below effectively
prevents the inclusion of additional provisions into the CC license.

2) However, according to German law, the parties (i.e. the author and
the user) conclude a contract based on the CC license text. There is no
ultimate definition of NC in the contract. Hence, the contract has to be
interpreted. For this interpretation, the circumstances of the contract
are to be taken into account. This may comprise guidelines provided by
CC Corporation with regard to the interpretation of the NC clause. If
such case were to be discussed in fornt of a court, the court would ask:
"What does NC mean?" And he would take into account how NC was to be
understood at the time of conclusion of the contract. Therefore, with a
little detour using interpretation of the clause, CC guidelines will
still find their way into the contract.

3) On the other hand, even if Section 8, subsection e were not present
in the CC license text, the NC guidelines would - according to German
law - still not be part of the contract between the parties because they
were not incorporated properly. Nevertheless, they would still serve as
document used in the interpretation of the clause.

Hence, from a German point of view, Section 8, subsection e is harmless
with regard to the NC guidelines.

I do not know if this is true for other jurisdictions, but would not be
surprised if the situation proved to be similar.

Best regards
Karl


Am 03.05.12 02:45, schrieb David Wiley:
> A nicer version of this message, with formatting and links to sources,
> is available at http://opencontent.org/blog/archives/2301. You
> probably want to read it there.
>
> I’ve said a number of times that I wouldn’t engage in discussions
> about the NC clause in the future. However, during the comment period
> for the 4.0 licenses I have to give some feedback – not about the NC
> clause, but about another section of the license that is critically
> important to the functioning of the NC clause, vague and imperfect as
> it may be.
>
> The current version of the Creative Commons BY-NC-SA license, Section
> 8, Subsection e, reads:
>
> This License constitutes the entire agreement between the parties with
> respect to the Work licensed here. There are no understandings,
> agreements or representations with respect to the Work not specified
> here. Licensor shall not be bound by any additional provisions that
> may appear in any communication from You. This License may not be
> modified without the mutual written agreement of the Licensor and You.
>
> This means that the extra “add-ons” organizations try to attach to CC
> licenses are, according to the license itself, prohibited and
> meaningless in the context of the license.
>
> The most popular of these add-ons is one in which institutions define
> “Noncommercial Use.” The way these statements are included on websites
> next to the link to the CC license would lead you to believe that they
> are somehow incorporated into the license by reference. Not true, it
> turns out – in fact, the license explicitly prohibits a Licensor from
> trying to do that.
>
> Now, why would CC want to prohibit people from providing local
> definitions of Noncommercial Use? Let’s take a look at two concrete
> examples of the prohibited add-ons. First up, the relevant language
> from MIT OCW’s add-on:
>
> Materials may be used by individuals, institutions, governments,
> corporations, or other business whether for-profit or non-profit so
> long as the use itself is not a commercialization of the materials or
> a use that is directly intended to generate sales or profit.
>
> Next up, the MITE add-on:
>
> MITE understands that the Noncommercial (NC) restriction on this
> Creative Commons license precludes institutional use of the materials,
> including by governments, corporations, public entities, and
> businesses, whether for-profit or non-profit.
>
> So here are two almost perfectly contradictory definitions of
> Noncommercial Use. I’m not passing judgement on which is better – for
> sake of my argument it doesn’t matter. The salient point is that the
> definitions contradict each other.
>
> Both these sites (MIT OCW and MITE) use the ShareAlike clause together
> with the NC clause. The SA clause includes the statement, “You may
> Distribute or Publicly Perform an Adaptation only under the terms of
> this License.” This language forcibly relicenses materials remixed
> into a BY-NC-SA work under the same (BY-NC-SA in this case) license as
> the original work IF the work is to be distributed or publicly
> performed. For this reason, BY-NC-SA works (like MIT OCW) and BY-SA
> works (like Wikipedia) cannot be remixed – the SA clauses of the
> BY-NC-SA and the BY-SA license conflict, both trying to relicense the
> other under its own terms. (If this is confusing, please play my CC
> licensing remix gamewhich will help you master the the underlying
> concepts.)
>
> Consequently, if CC licenses were to allow local definitions of NC to
> be incorporated into a BY-NC-SA license by reference, we would
> frequently – but not always – find ourselves in a situation where two
> BY-NC-SA licensed materials could not be remixed because they would
> actually be licensed under different licenses due to the language of
> the add-on. To be more concrete, if add-ons were legal you could not
> remix MIT and MITE content because they would be licensed under two
> different licenses, even though on the surface they appear to be the
> same license. And you thought NC was confusing before!
>
> In the current draft of the 4.0 licenses the Section 8 Subsection e
> language has been removed (see this handy comparison chart.) If
> something similar is not put back in its place in the proposed new
> Additional Terms section, CC will not have six licenses – it will have
> infinitely many licenses. Talk about license proliferation!
> Consequently, I believe the 4.0 licenses MUST INCLUDE language similar
> in function to the current Section 8 Subsection e.
>
> Frankly, the whole situation is reminiscent of the entangled problems
> of immigration reform in the US. Since the Feds refuse to act on the
> issue, individual states are acting in ways that are not entirely
> harmonious (or necessarily sensible). Similarly, if CC continues to
> refuse to define the NC term, individual Licensors are each going to
> want to provide their own definition. However, under no circumstances
> should they be allowed to do that.
>
> People sometimes wonder why I talk about 4R permissions, asking if
> “revise” and “remix” are really that different. Revise is something
> you do to the inside of a resource. Remix is combining two or more
> resources together into a new work. If MIT and MITE were allowed to
> define NC locally, remix with other BY-NC-SA works would cease to be
> permitted for their works, but revise would continue to be permitted.
> License incompatibilities are the primary reason why there are 4 Rs
> instead of just 3.
>
> David
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