Development of Creative Commons licenses

[Heather Morrison <hgmorris AT sfu.ca>]

Thanks, Sarah.

One question that I have which comes up with respect to open access works: 
what about paywalls imposed by a downstream licensor that are not applied TO 
the work, but rather something people need to address in order to get TO the 
work. I'm not sure if it is even possible to preclude this - most of us have 
to pay for internet access, so one could argue that everything on the 
internet is behind a paywall.

best,

Heather Morrison, PhD
Freedom for scholarship in the internet age
https://theses.lib.sfu.ca/thesis/etd7530

On 2013-01-16, at 9:26 AM, Sarah Pearson wrote:

> 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. 
> 
> 
> --
> 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
> ______________________________
> 
> _______________________________________________
> List info and archives at 
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses
> 
> In consideration of people subscribed to this list to participate 
> in the CC licenses http://wiki.creativecommons.org/4.0 development
> process, please direct unrelated discussions to the cc-community list
> http://lists.ibiblio.org/mailman/listinfo/cc-community