Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

Note:  this is a lengthy post

Summary of this post:  This post clarifies Section 2(a)(5) of the SA licenses in draft 4.  In that section, the licensor is giving express permission to downstream users of adaptations made from their work to meet the conditions of the original SA license with reference to the conditions in the SA license applied by the adapter (if the adapter chose a different SA license). The SA license applied by the adapter could be exactly the same, or it could be a later version of the CC license or a non CC license that Creative Commons declares compatible.  

This addition facilitates reuse of SA works where adapters have chosen a later version, because downstream users only need look to the last license applied to know their obligations to upstream licensors who used a 4.0 SA license.  This does not broaden the scope of the permission originally granted by a licensor.  It only affects the reuse conditions that apply when exercising the licensed rights present in adapted material.  See the example contained in the email below.

We have updated the 4.0 licenses on the staging server based on clarifications we have made based on comments to date, explained below.  

Brief summary of main changes:  http://wiki.creativecommons.org/4.0/Draft_4#Updated_Draft_4_Legal_Code

Comparisons of draft 4v1 and draft 4v2 (all changes): http://wiki.creativecommons.org/4.0/Drafts#4.0d4v2_Licenses_.28updated_as_of_15_October_2013.29

Updated HTML: 

BY:  http://staging.creativecommons.org/licenses/by/4.0/legalcode

BY-SA:  http://staging.creativecommons.org/licenses/by-sa/4.0/legalcode

BY-ND:  http://staging.creativecommons.org/licenses/by-nd/4.0/legalcode

BY-NC:  http://staging.creativecommons.org/licenses/by-nc/4.0/legalcode

BY-NC-SA:  http://staging.creativecommons.org/licenses/by-nc-sa/4.0/legalcode

BY-NC-ND:  http://staging.creativecommons.org/licenses/by-nc-nd/4.0/legalcode

<<>>

 

There have been two comment threads on the treatment of SA adaptations since we published draft 4.[FN1]  Rather than post a reply on one or the other, I am starting a fresh thread to clarify the SA treatment in draft 4, respond to points made in those postings, and to introduce clarifications based on the feedback provided.

As an initial matter, I want to acknowledge that we have not been as clear as we should have been – externally and even internally, including among our affiliates – on how the new proviso in Section 2(a)(5) will work.[FN2]  We will work to do better, and this email is my attempt to explain this change more fully.  I will also highlight a few changes made to the draft legal code on the staging servers that should improve understandability.

SA-licensed adaptations

In the 3.0 and 4.0 license suites, adapters of SA-licensed works are required to license their copyright under either (1) the same or later version of the SA license applied by the licensor, or (2) a non CC license that CC HQ declares compatible.  Our licenses invariably change when they are versioned, and any non CC license we might declare compatible in the future, such as the Free Art License, will inevitably differ in at least some small respects from BY-SA 4.0.  [Note – throughout this post I refer to later versions only – please read those references as also covering non CC licenses CC may declare as compatible.]  Because users of adaptations must comply with both the original and the adapter’s licenses, when the licenses differ this means they must refer to (at least) two license texts to be sure they are in compliance.

New in draft 4

In response to input received during the draft 3 public discussion period, we took the opportunity to streamline reuse of adaptations under the SA licenses only (not for BY and BY-NC), and introduced a new Section 2(a)(5).[FN3]  We have since tweaked that provision based on comments made since the posting to improve understandability – here is the refined language, which can be found in Section 2(a)(5)(B) of BY-SA and BY-NC-SA  on the staging server:

 

Every recipient of Adapted Material from You automatically receives an offer from the Licensor to exercise the Licensed Rights in the Adapted Material subject to the terms and conditions of Your the Adapter’s License You apply.    

Our goal with this new proviso is to give downstream users the ability to comply with all upstream licenses with reference to the conditions of the SA license applied by the adapter.  All upstream licensors maintain a direct, 1:1 licensing relationship with each downstream reuser of a work based on their original.  Their licenses do not go away or get replaced wholesale with the terms of the adapter’s license.  But if a different SA license is applied to a 4.0 SA work by a downstream adapter, compliance with the conditions of the license applied by the adapter is compliance also with the 4.0 SA license.   

This change conforms to what many reusers of SA adaptations do in practice currently.   Establishing this as a clear rule in 4.0 makes sense for the SA licenses, where licensors (and licensees) expect the same conditions to apply to all adaptations.  We believe this is also consistent with the spirit of SA – offering downstream users a relatively streamlined and simplified way to comply with their obligations to all upstream licensors.

Note that this will not change the scope of the permissions granted by any given licensor.  The definition of Licensed Rights is established in the particular SA license applied by a licensor and would not broaden or contract were the scope of permissions changed in later versions.  We have made a small revision to the definition of Licensed Rights to make this clear, which you can find in Section 1(i) of BY-SA and the corresponding section of BY-NC-SA.

Example

Suppose that in version 5.0, the attribution condition is changed so that licensees are no longer required to include a URI to the licensed material even if supplied by the licensor. 

Anne licenses her original work under BY-SA 4.0, which requires reusers to provide a URI to the licensed material.  Anne supplies a URI when she publishes her work.  Beatrice adapts Anne’s work and licenses her rights in the adaptation under BY-SA 5.0.  When Clara reuses the adapted material produced by Beatrice, she receives a license from Anne and a license from Beatrice.  She may meet the attribution requirements to both Anne and Beatrice by looking at the conditions of BY-SA 5.0 only.  Clara does not need to retain the URI supplied by Anne, because she is meeting her obligations to Anne under 4.0 with reference to the 5.0 conditions.

However, suppose that under 5.0, licensors grant more permissions than under 4.0 (e.g., imagine a new sui generis right is created in Europe, and that right is covered and licensed in the 5.0 license but it is not within scope of the 4.0 license).  Section 2(a)(5)(B) of 4.0 has no effect on the scope of permissions given by Anne.  Anne only licensed those rights (the “Licensed Rights”) covered by the BY-SA 4.0 license she applied. 

Versioning and compatibility

We are aware now than ever of the impact of changes between versions has for our community, and our obligation as a steward to make changes deliberatively with inter-version compatibility in mind.  Among other things, we need to be careful in our versioning and compatibility processes not to deviate in ways unexpected by downstream users or that undermine the expectations of licensors.  We will also need to be especially clear to identify the conditions in our licenses (in 4.0, the conditions are in Section 3 (as clarified for databases in Section 4(b)), as well as identify and evaluate carefully all conditions in non CC licenses that are candidates for compatibility.

I encourage you to re-read Kat’s recent post explaining our plans for developing, with your input, a statement of intent for future SA license versions and criteria for non SA license compatibility determinations.

https://lists.ibiblio.org/sympa/arc/cc-licenses/2013-September/007447.html

Revisions 

We have posted a list of revisions made as a result of these clarifications on our 4.0 wiki, together with documents showing all cumulative changes to draft 4 since its publication.

 

We look forward to your comments.

Diane

FN1: The first was started with a post by Parker Higgins: http://lists.ibiblio.org/pipermail/cc-licenses/2013-September/007422.html.  The other is on a thread started by HQ, and began with a reply by Gregory Maxwell: https://lists.ibiblio.org/sympa/arc/cc-licenses/2013-September/007420.html.

FN2:  I noted when we published draft 4 (link to blog post) that different understandings exist about how SA operates, whether the licenses stack, and similar.  CC has not always been as clear as it could have been, including in past versioning efforts.  That lack of clarity has contributed to the confusion and different understandings.  We’re working hard to avoid any such misunderstandings with 4.0, and appreciate our community reminding us when we need to do better.

FN3:  The last two words “You apply” were added as a clarifier last week shortly after we posted draft 4.   Additionally, we have since split the language that had been in Section 2(a)(5)(A) in draft 4 into two subsections to improve clarity.  You will now see 3 subsections (A), (B), and (C) in Section 2(a)(5).  That change has been made to the licenses on the staging server.