Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

Greetings,

This is the final discussion prompt seeking targeted feedback on draft 3 of 4.0.  Here, we highlight the question of license interpretation.  (Fair warning, this is a lengthy though important email.)

The 4.0 versioning process provides an opportunity to clarify how the licenses operate and what law governs the scope and exercise of the rights granted. Providing this certainty would benefit licensors as well as those using CC-licensed material who want to know whether their particular use is regulated by the license.  While we have taken pains in drafting 4.0 to clarify the licenses’ operation, we refrained from introducing a definitive license interpretation clause in drafts 1 or 2.

In draft 3 we introduce the following provision, found in Section 7(a):

 

Interpretation of this Public License shall be made with reference to Copyright and Similar Rights in effect where You use the Licensed Material unless applicable international law provides otherwise.  For the avoidance of doubt, this Public License does not, and shall not be interpreted to, reduce, limit, restrict or impose conditions on any use of the Licensed Material that would otherwise be free of restrictions or conditions.

Background

The key requirement of any interpretation provision is that it properly account for (and not undermine) the intended operation of our licenses.  CC licenses are designed to apply and be activated when, and only when, an underlying, exclusive right held by the creator exists and applies to the particular use.  We have always crafted our licenses to operate as licenses, even though interpreted as contracts in some jurisdictions.  The licenses grant permission when permission is necessary and impose conditions only when that permission is necessary and exercised.  Our licenses sit atop the uneven, disharmonized international legal landscape.  They are not designed to level that landscape by imposing conditions in the absence of an underlying applicable right.

Given the variations among legal systems around the world, CC licenses necessarily operate differently depending on the law that applies to use of the licensed material.  Any interpretation clause must preserve and reinforce that operating principle.  

For license version 4.0, we have considered two main options:

• remain silent and stay the course of earlier license versions[FN1], leaving licensors and licensees to discern for themselves what rules apply, and leaving courts (were it to come to that) to make that determination based on national conflicts of law rules;[FN2] or

• introduce an interpretation provision establishing a default that specifies either how applicable law is determined or the particular law that applies.

Considerations

There are pros and cons to both approaches.  In draft 3 of 4.0, we have chosen the second option and specified a default that is also the dominant and well-accepted rule of interpretation applied in the copyright context – the law in effect where the material is used. 

This choice is a result of several considerations:

(1)  Foremost, this is the widely accepted and most meaningful rule for both licensors and licensees.  It is applied in the absence of a negotiated choice of law clause or another dispositive rule established by treaty or convention.  This rule respects the principle of territoriality, which provides generally that national laws are limited in their reach to activities taking place within that jurisdiction.  This rule also guards against the “exportation” of laws from one jurisdiction to another, a feature of all CC licenses.

o For example, a licensor of an unoriginal database of uncopyrightable facts published from a jurisdiction that recognizes “sweat of the brow” as a basis for granting exclusive rights ought not be able to enforce the license conditions against uses of the database or those facts by someone in a jurisdiction where those same rights are not established by national law.

(2)  This rule is fair and easily understood by licensees, reducing the chance they are surprised by or run afoul of unfamiliar laws, or they find themselves in a situation where they are unable to rely on exceptions and limitations that would otherwise apply.  

o For example, if a user downloads and uses CC-licensed copyrighted material in the United States, she ought be able to rely on the doctrine of fair use for certain uses, and not be limited to (and expected to know about) exceptions and limitations contained in copyright laws in force in other jurisdictions.

(3)  This default provides some measure of protection against forum shopping and related maneuvering that often puts licensees at a disadvantage.  Note that this default is not a forum selection clause and does not restrict licensors from choosing one forum or another, at least not any more so than they are otherwise. [FN3]

(4)  Including an interpretation clause is preferable to remaining silent if our objective is to increase certainty for licensors and licensees.  Additionally, in those rare cases where courts become involved, the default serves as a uniform starting point for interpretation, while still preserving the ability of courts to conclude that international law dictates a different result.

(5)  This default applies to the underlying copyright and similar rights only, and does not affect the potential applicability of other laws that may be relevant, such as laws bearing on the effectiveness of disclaimers offered by the licensor, whether a valid contractual relationship has been formed (in those jurisdictions where licenses are interpreted as contracts), and similar. 

(6)  This default is consistent with earlier CC license versions, reinforcing (in its second sentence) that the license should not be construed to adversely affect applicable exceptions and limitations.

We recognize this may not be the preferred solution for licensors who want to control definitively and absolutely what law and/or forum should apply.  But it is the only solution that is consistent with the design and operation of our licenses, accounts for the complexities that exist independent of the CC licenses, and provides more certainty and guidance than currently exists. [FN4]

We look forward to your thoughts on this proposal.  For more information about some of the other options considered and the reasons why we believe those unsuitable, visit our 4.0 wiki.

Diane

[FN1] The existing international (unported) versions of the licenses are silent as to the law applies or how that determination should be made.  The most relevant direction is found in Section 2 (preserving applicable exceptions and limitations) and Section 8(f) (identifying the origin of terminology and clarifying that the scope of the license should be read consistent with applicable national law).  There exist a handful of 3.0 ported licenses that contain a choice of law provision, and a single 3.0 port that contains a choice of forum provision.  

[FN2] In the absence of a choice of law provision, national courts apply conflicts of law rules of that jurisdiction to determine what law(s) apply.

[FN3] In any litigated dispute, licensors will have a limited number of choices for where to bring suit.  The doctrine of forum non conveniens is one such limitation.

[FN4]  The alternative – remaining silent – could net the same result but lacks predictability because it relies on national and regional courts to apply conflicts of law rules consistently.