Development of Creative Commons licenses

[Paul Keller <pk AT kl.nl>]

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

> 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.

i think this is mainly because this is taking place in some of the least read 
sections of the licenses in language that is difficult to process for regular 
users. Part of the problem is that this mechanism is now explained in plain 
language in the introduction section (which is indeed a improvement in terms 
of readability and transparency) 

> [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.

So what i am mainly concerned here is works of joint authorship. This is 
where i think that the clarified language introduces unwanted uncertainties). 
To use a very simple example: You have an academic paper written by three 
authors. Now it is published under a cc license on the website of one of the 
authors. Looking at the license text i could get the impression that there is 
one licensor who has published the paper under a cc license and he may or may 
not have done so in with the expression of her co-authors. At this point the 
license becomes meaningless as it does not say: 

this paper can be used under the terms of creative commons license

but rather says 

as far as the licensor is rights holder in this paper he gives permissions to 
make use of the paper under the terms of the license. there may however be 
other rights holders and it is up to you dear licensee to figure out if they 
also allow you to use the paper under these conditions. 

the first statement is something that empowers me as a user. the second one 
is one that does not. The second statement makes sense in the case of 
accidential inclusion of third party rights in the work (the perviously 
mentioned examples of a video that captures another work in the background) 
but it makes no sense at all with regards to works with multiple rights 
holders. 

These should either not be licensed under an open license or they should be 
licensed with the express permission of all rights holders. From the 
perspective of the user i do not care if the license applies to rights held 
by different people or if it does not what i want to use is the work as a 
whole. This has been a main driver for including more and more copyright-like 
rights in the scope of the license and i do not see why we should not put a 
burden on the licensor to ensure that the work that is being licensed can 
acatullay be used under the terms of the license. 

/paul