Development of Creative Commons licenses

["Guibault, Lucie" <L.Guibault AT uva.nl>]

Dear all,

I have had doubts about this situation for many years already and I have voiced them to Diane and others on several occasions in the past.

I am happy that Paul put the issue in the open and I really appreciate Gregor's formulation of 1) the problem and 2) the solution.

Best regards,

Lucie

Lucie Guibault
Instituut voor Informatierecht
Universiteit van Amsterdam
Kloveniersburgwal 48
1012 CX Amsterdam
Nederland

Tel: +31.20.525.3947
Web: www.ivir.nl

On Aug 24, 2012, at 04:32 , Gregor Hagedorn wrote:

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
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