Development of Creative Commons licenses

[Paul Keller <pk AT kl.nl>]

hi all, 
i want to raise an issue that i have come across looking at the latest drafts 
(as someone involved in CC-Netherlands). However i want to raise this issue 
here as a user of the licenses and user of cc licensed works. 

The issue at hand is a statement in the licenses that has gained prominence 
throughout the drafting process. In 4.0d2 there is a sentence in the 
introduction that reads:

> Because this Public License affects only rights held by Licensor, You may 
> still need permission from others to use the Work as You intend.

this sentence seems to have replaced this sentence that was present in the 
introduction of 4.0d2 

> This Public License does not affect third party rights in the Licensed Work.

and effect this sentence seems to say the same as the part about 'warranties 
in title' in Section 5 of the 3.0 licenses:

> UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR 
> OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY 
> KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, 
> INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, 

now the last one being effectively ununderstandable for people without having 
legal training has masked this issue in the 3.0 licenses, which is 
highlighted by the very prominent and clear language in 4.0d2. As far as i am 
concerned the inclusion of this sentence makes the Creative Commons licenses 
pretty much useless for anything but simple works with one individual rights 
holder (such as monographs or photographs…). 

In effect this sentence says, 'there may very well be other rights holders 
and if this is the case it is your reasonability, dear user, to figure out 
who these are and if they allow you to use the work under the same conditions 
as well'. this of course runs contrary to the expectations of most users (and 
more importantly to the commons deeds which say: 'you are free to do this or 
that with this work'. 

As a large proportion of copyrighted works out there have indeed multiple 
rights holders (pretty much all movies, most music and lots of texts such as 
academic articles) this is not a theoretical problem but a very real one. 
With this language in place it is essentially the licensee's task to ensure 
that all rights in the work that is offered under a Creative Commons license 
are indeed covered by that license. This severely undermines the usefulness 
of these licenses for licensees. 

Until now i have always assumed that the licenses actually work the other way 
around, namely by requiring the licensor to ensure that all other rights 
holders agree with offering the work under the chosen license. This 
assumption is backed by the way CC publicly communicates about this, for 
example on the 'considerations before licensing page' that contains this 
language in the 'Make sure you have the rights' subsection 
(http://wiki.creativecommons.org/Before_Licensing#Make_sure_you_have_the_rights):

> If you are combining pre-existing works made by other people (unless those 
> works are in the public domain, and thus permission is not required) or 
> working in conjunction with other people to produce something, then you 
> need to make sure that you have express and explicit permission to apply a 
> Creative Commons license to the end result (unless your use of the 
> pre-existing works constitutes fair use, and thus no permission is 
> required).
  
 (emphasis mine, note that the 'you' in this snippet refers to a potential 
licensor while the 'You' in the quotes above addresses the licensee). 

This approach is not only more in line with user expectations and the deed 
but also more logical. It is of course much easier for a creator to obtain 
permission to license from her co-creators (or rights holders of material 
used in the work) than it would be for a random licensee to obtain separate 
CC licenses from all other rights holders. 

One other reason why this language is problematic is that it completely 
devaluates what it means to apply a Creative Commons license to something. 
Say i am the writer of an introduction to an essay collection. Under the 
current language i can simply make the entire essay collection available 
under a CC license without needing to discuss this with the 20+ essayists who 
have essays in this collection. Under the current language it is the 
responsibility of the licensee to figure out that i have not obtained 
permission from the essayists and that the license actually only applies to 
the introduction. In this situation the language quoted above ensures that i 
am behaving correctly and have nothing to fear for applying the CC license to 
parts of the work that have other rights holders.

paul