Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

A question was raised on the cc-community mailing list about the reach of the TPM restriction. Our answer (cut and pasted below) relates to Version 4.0, so we wanted to share the response on this mailing list as well. 


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Happy
 new year! Over the past month or so, we have been working on refining 
draft 3 of Version 4.0, and we plan to publish it shortly. In the meantime, we wanted 
to follow up on this particular thread about the reach of the TPM 
restriction because it touches on a lot of complicated issues relating 
to the licenses. Most importantly, it hinges on what happens to the 
original work when an adaptation is created. We have done a lot of 
thinking about these issues over the last several weeks as we endeavored
 to make the concepts more clear in Version 4.0. 



The
 starting point to answer this question is a fundamental concept about 
how adaptations work under copyright law. That is, the rights in an 
adaptation never touch the rights to the original from which it is 
derived.[1] That means an adaptation is always subject to two 
copyrights: in the CC license context, one copyright is held by the 
adapter with respect to the new contributions, and one is held by the 
original licensor with respect to the original.  



This
 helps to answer the question about the TPM restriction because it 
demonstrates how adaptations necessarily include the licensed work. 
Therefore, if you are not allowed to lock down the licensed work by 
applying TPMs, by default you are not allowed to lock down an adaptation
 by applying TPMs, at least to the extent the TPMs restrict access to 
the original licensed work. 

This
 same concept applies to all obligations in the licenses that apply to 
the licensed work, including the provision dictating that the CC license
 always follows the original work, offering a new license to downstream 
recipients when licensees share the work, and to the provision 
prohibiting licensees from imposing new legal terms or conditions upon 
the original work. Because adaptations necessarily include the licensed 
work, downstream recipients of adaptations get access to the original 
work under the original CC license without any new terms and conditions 
imposed by the licensee. 

This
 might start to sound a bit like ShareAlike, but there is an important 
difference, and it relates to the fundamental concept explained above: 
there are always at least two copyrights in an adaptation. With that in 
mind, under the ShareAlike licenses, licensees are required to share 
their own rights in the adaptation under identical terms and conditions.
 In the non-ShareAlike licenses, licensees are free to share their own 
rights in an adaptation on any terms, even though the original CC 
license always follows the adaptation with respect to the original work.
 

In
 the upcoming draft of Version 4.0, we have made an important change to 
the above concepts. We have included a limited rule as to how 
adaptations of non-ShareAlike licenses must be licensed. The rule, which
 will be included only in CC BY and CC BY-NC, states that adaptations 
may be licensed on any terms, so long as people using the adaptation 
are able to comply simultaneously with those terms and the original CC 
license (since both licenses apply).[2] This ensures that licensees are 
not releasing their rights to adaptations in a way that would make it 
impossible for downstream recipients to reuse the adaptation as a whole.
 

Another
 important change in this upcoming draft of 4.0 relates to TPMs. 
Licensors have always had the ability to apply TPMs to their own works (even though doing so frustrates the purpose of the license because it 
makes it difficult for licensees to exercise their rights). In the new 
draft, we have included express permission to circumvent any TPMs that 
are applied by licensors.[3] 

We
 look forward to hearing from you on these and other important proposed 
changes to the licenses during the upcoming public comment period. 



best,
Sarah 

FNs:


[1]
 Article 2(3) of the Berne Convention: “Translations, adaptations, 
arrangements of music and other alterations of a literary or artistic 
work shall be protected as original works without prejudice to the copyright in the original work.” (emphasis added) 


[2] The current working language for d3 is: “You may release Your
 Copyright and Similar Rights in the Adapted Material on any terms and 
conditions provided users of the Adapted Material are able to 
simultaneously satisfy those terms and conditions and this Public 
License.” 

[3] The current working language for d3 is: “

















You are authorized to
exercise the Licensed Rights in all media and formats whether now known or
hereafter created, and You are authorized to make technical modifications
necessary to do so.  The Licensor
waives or agrees not to assert any right or authority that the Licensor may
have to forbid You from making such technical modifications, including
modifications necessary to circumvent effective technological measures applied
by the Licensor.”

Sarah Hinchliff Pearson, Senior Counsel
Creative Commons
444 Castro Street, Suite 900
Mountain View, California 94041
skype: sarah-h-pearson
email: sarah AT creativecommons.org
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