Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

To be clear, the language pointed to does not change anything in 4.0 that wasn't also the case in prior versions, other than arguably 1.0 (see below).  Its inclusion is (as you suggest) to make prominent and be clear on how the license operates and what (and whose) rights are affected and being licensed -- one of our most important goals with 4.0. That it calls attention to the possible existence of other rights and that licensees should take note, then that's indicia of success in my mind.  The last thing we want is for licensees to be surprised about third party rights, or even about the rights that licensor *isn't* licensing.

But nor do we want licensors to be careless and encouraged to slap CC licenses on content without consideration.  And perhaps the new clarity and emphasis in d2 could result in the unintended consequence of encouraging licensors to be less careful.  That's not the intention, of course, but if that's a concern then let's get that right.  There's certainly a balance to be struck between alerting licensees to the existence of those other rights, and effectively precluding "meaningful" use of CC licenses for anything other than "monographs or photographs" (though I would argue that photographs are often some of the more complicated copyrighted works in terms of rights). 

As to the claim "that it completely devaluates what it means to apply a Creative Commons license to something," it's worth pointing out that CC removed the (extensive) representations and warranties that were in 1.0 (see Section 5:  http://creativecommons.org/licenses/by/1.0/legalcode), as of 2.0 (for history and rationale, http://creativecommons.org/weblog/entry/4216), and that doesn't appear to have caused problems of the type suggested.  Through myriad efforts (including those of our affiliates), licensors for the most part behave responsibly.

[As an aside, we introduced in 4.0d2 the ability of licensors to offer warranties for their works through the license, which we hope licensors will take advantage of.  See 6(b) of 4.0d2 (http://mirrors.creativecommons.org/drafts/by-nc-sa_4.0_draft.html).] 

But back to the balance to be struck, if there's a proposal for 4.0 in terms of wording in the license and/or licensor or licensee education elsewhere (chooser, FAQs, or other), we're of course all ears.

 

Diane

On Wed, Aug 22, 2012 at 12:53 PM, Paul Keller <pk AT kl.nl> wrote:

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
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Diane M. Peters, General Counsel
Creative Commons
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