Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

Thanks very much for your careful review and comments, Federico! Some thoughts and responses inline.

On Wed, Sep 18, 2013 at 7:50 AM, Federico Morando <federico.morando AT gmail.com> wrote:

I hope this is not touching issues already discussed, but we (meaning the CC Italy working group) have a few questions/suggestions (not necessarily concerning the latest changes of draft 4).

The two relatively more "substantial" comments are:

- in section 3 (b) Share Alike: why does the license read "if You produce and Share Adapted Material"?
-- Does this mean "if you Share an Adapted Material that you produced"? If so, "produce" can be deleted, since the definition of Adapted Material already requires that "You" produced the Material itself.
-- Or does this mean "if You produce and/or Share Adapted Material"? If so, "and/or" should be said explicitly (and the choice of limiting the freedom to create Adapted Material for your own consumption should be discussed on this list... I can figure out some cases in which this makes sense, but it's a delicate policy choice!).

This addition was simply intended to reiterate that ShareAlike only applied if you Share Adapted Material that you create. That clarification is in the definition of Adapted Material as well as you note, but our thinking was that not everyone reads the definitions closely. If it causes confusion, we could remove it, but I am not sure I see how the "and/or" interpretation could result. Do you think this is a significant risk? 

- in section 4, letter (c) should become (b) and vice versa. In fact, in our understanding, section (c) applies to "the contents of the database included in the Licensed Material" (and does not specifically concern an Adapted Material based on it): this is clear and uncontroversial if the content of what is not letter (c) appears before talking about any derivative database, but it's less clear if (c) follows the content of (b);
-- in any case, adding "included in the Licensed Material" (after "the contents of the database") could be helpful in interpreting this section.

I'm not sure I follow this comment. Do you mind explaining a bit further? Just to clarify, the reason we have put them in this order was to be consistent with the ordering of the rest of the license. Since (b) explains how the definition of Adapted Material applies in the context of SGDRs and (c) explains how the attribution condition is triggered, we thought it made sense to put the definition first and then the condition. Happy to reconsider once we hear more from you!
 

Two other comments are:

- again in section 4, letter (b), the parenthesis "(but not its individual contents)" should be deleted: for many of us, it was considered just tautological (and present as a reminder of the fact that the law about databases does not generate autonomous rights on the contents of such databases), but some other people suggested some strange interpretations (e.g., suggesting that public domain content included in the Adapted Material could be kept somehow de facto "proprietary", despite the Share Alike license). It would be better to prevent such strange interpretations, deleting the content of this unnecessary parenthesis;
-- the clarification concerning the working of the law on databases (and not the CC license) could be provided in a FAQ, instead;

This phrase "but not its individual contents" is there to ensure that ShareAlike does not bleed into the copyrights of the individual works within a database (unless, of course, those individual works are themselves adaptations of a ShareAlike work). In other words, without that qualifier, it looks as if an entire database and its contents is Adapted Material, which then must be shared alike based solely on SGDRs in the original. That would mean that data from an SA-licensed database could not be integrated into a database that included content in the public domain. (Instead, the database and everything within -- for example the music within it --  it must be under BY-SA.) We thought that made the reach of ShareAlike go too far, so we limit ShareAlike to the SGDRs in the "derivative database."

- in the definition of Share, why does the licenses include "reproduction" in the list of the "means or process" used to provide material to the public? In fact, making available is already and rightly included in the list (which is, in any case, just an exemplification and not an exhaustive list)... Again, adding "reproduction" suggested to some of our lawyers some strange interpretations, such as the idea that acts of reproductions which are just preparatory to making available (such as uploading a file on your own FTP server, even if you keep the password for yourself) could constitute "sharing"... I assume this is not the intention of CC, but I could not provide an explanation about the inclusion of "reproduction" in the list (apart from a generic "to be sure").

We added "reproduction" simply as a clarification. The definition of Share is intended to capture any exclusive right of copyright that results in public sharing, including a public copy.

I'm of course available to clarify our position, in case it does not emerge clearly from the points above.

Thanks,

Federico

--

-----------------------------------
Federico MORANDO
Director of Research and Policy &
Research Fellow

NEXA Center for Internet & Society
Politecnico di Torino - DAUIN
Corso Duca degli Abruzzi, 24
10129 TORINO - ITALY

tel.: +39 011 090 5954
fax: +39 011 090 7216
mob: +39 339 7507974
mail: federico.morando AT polito.it
web: http://nexa.polito.it

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