Development of Creative Commons licenses

["P. J. McDermott" <pjm AT nac.net>]

On 2012-08-22 15:53, Paul Keller wrote:
> 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.

I think you mean 4.0d1 here, not d2 (minor typing error).

> 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.

As you say, in many works there are multiple authors and copyright
owners.  Except in the case of a joint work, each rights owner can only
grant a license for the parts of the work in which he or she owns
exclusive rights.

The CC public licenses have no effect in this regard, nor can they.  One
author of a work can say that his or her contributions may be used under
the terms of a CC public license, but the rest of the work might not be
usable under the same terms.

Off the top of my head, an actual example of this (though involving the
GNU GPL, not a CC public license) is the book _Open Sources_ [1].

[1]: http://oreilly.com/openbook/opensources/book/copyright.html

> 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 is a somewhat risky assumption. :)

The licenses in fact don't "require" anything of a licensor.  They (in
many jurisdictions) are not contracts; they are simply terms under which
members of the public are authorized to use copyrighted works.

> 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).

Of course the CC Wiki is not part of the license, nor is it in any way
binding to the licensor.

This is good advice for licensors to avoid as much legal risk as
possible.  It is not a requirement made by CC or the public licenses.

> 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.

And so in most cases, the authors of a non-joint work do agree on
licensing terms for the whole work.

In other cases, the contributions that are usable under the terms of a
public license are generally marked as such, while the rest of the work
remains usable only within the small limitations on copyright (e.g. fair
use).

I've seen a presenter use in his slides copyrighted works under only the
fair use provisions of US copyright law, then authorize the use of his
slides under the terms of CC BY-SA and warn his audience of the fair
use.  (I wish he could have found Freely-licensed alternative works, but
as far as I'm aware none exist; many or all of the works are older than
the Free Culture movement is.)

Securing a public license for the works he used would have been about as
impractical or impossible for him as it would be for anyone else.  I
believe his use of the works and licensing of his own work was
reasonable.

Many educators, students, and artists make similar fair uses of other
works in their own publicly-licensed works.  It is the responsibility of
licensees to be aware of such unlicensed uses of copyrighted works.

> 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. 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.

You're not actually "applying the CC license" to the other authors'
contributions, as you presumably have no legal right to do so.

You can *claim* that a collective work to which you've contributed is
usable under any terms you choose.  This of course does not make it
true.

I think this is the issue you're trying to show: the disclaimer of
warranties of title makes it more difficult to legally pursue a
fraudulent claimant.  This is certainly true, and it does present some
risk for potential licensees.

I'm not sure what can or should be done here, if anything.

--
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