Development of Creative Commons licenses

[Gregor Hagedorn <g.m.hagedorn AT gmail.com>]

On 24 August 2012 03:23, Diane Peters <diane AT creativecommons.org> wrote:
> 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.

I read and share Paul Keller's concerns in this way. If licensees are
required to research which part of a work the licensor actually had
right to, re-use of open content becomes an impossible task. I believe
the balance sought is that the licensor must take reasonable care of
documenting the state of the parts of a licensed work to the best of
her or his knowledge. This should perhaps be expressed in connection
with the criticized claim.

The expression should make it clear, that if a licensor has written
part of a textual work, while other parts are written by other
authors, and she or he puts the entire text under a CC license without
any documentation as to which parts can be licensed and which parts
not, that this can be considered fraudulent (willful neglect?). At the
same time, if the licensor is unaware of third party rights, she or he
cannot be sued and the licencee must use care as well.

While I think that this balance is not easy, I think it is doable. In
non-legal language, and addition could run along the following lines:

"Where the licensor is aware of third-party rights to a work, it is
the responsibility of the licensor to document such rights in such a
way that the limitations of the license remain visible to potential
licensees. The licensor can, however, not be made responsible for any
third party rights she or he is not aware of."

Gregor