Development of Creative Commons licenses

[Gisle Hannemyr <gisle AT ifi.uio.no>]

On 2013-11-11 00:09, John Hendrik Weitzmann wrote:
> Am 10.11.2013 11:25, schrieb Gisle Hannemyr:
> > If this change really goes out, the BY-ND license *must* be renamed
> > BY-PBNSD, for:
> >
> >      Attribution-ProduceButNotShareDerivs
> >
> > I am not joking.
> >
> > Also, I think this license grant creates an unfortunate legal
> > precedence if I were to use this license and had to enforce my
> > rights in court.
> >
> > Without this license grant, if I found out that someone had produced
> > an adapted version of my work against my wishes, I could simply take
> > them to court for violating the license.

> Well, I don't know Norwegian law of course, but in Germany and several
> other jurisdictions you couldn't always do that, because the _making_ of
> adaptations does often not require consent of the original author

I am well aware of that.

In Norway too, creating an adaptation and sharing it with family and
close friends is permitted under the "private use exception".  If
somebody were to create an adaptation under the "private use
exception", I would have no legal recourse.

However, I think it is a big difference between recognising that the
"private use exception" *permits* adaptations to be created for private
use - and to *license* the right to create adaptations.

The first is something that follows from the law, the latter is an
act of will from the licensor.  I think it will be much more difficult
to pursue a borderline adaptation that may or may not have been legal
under the private use exception if the other party can point out that
you've actually licensed him the right to create adaptations.

> > With the strange provision that they may "produce but not Share
> > Adapted Material", I need to prove that the adapted material
> > had been "shared" (i.e. provided "to the public by any means or
> > process that requires permission under the Licensed Rights,
> > such as reproduction, public display, public performance,
> > distribution, dissemination, communication, or importation").
> >
> > As a not too far fetched example, if I found out that some political
> > group I really disapprove off took my work under CC BY-ND 4.0 and
> > started to produce adaptions for their nefarious cause, but only used
> > the Adapted Material *internally* (i.e. within their community), I would
> > (if this clause is part of the license) have no recourse,
> > because they would argue that by using CC BY-ND, I've *licensed*
> > them the right to produce Adapted Material, (only with the provison
> > that the *licensee* so no provie the public with access to
> > the Adapted Material.

> I think that would be an ok thing to live with. The same applies to
> several other provisions in many public licenses. If you're honestly
> concerned about political groups doing something specific that you
> cannot sanction under free licenses, then keep all rights reserved or
> draft a license and be an island.

Well, I am not concerned about "something specific that you cannot
sanction".  I am concerned about *derivatives*.  I think that when I
use a license with "no-derivatives" in its name, it is a reasonable
expectation that I do *not* license the right to make derivatives
(while fully understanding that private derivatives may still be
created, but when this happens it is due to the private use exception,
and not because I've granted that right by means of a public license).

> > So my preferred solution would be to drop the proposed change to
> > the ND licenses, and instead use the FAQ to make it clear to users
> > (licensors and licensees) that text and data mining is *not*
> > considered an adaption.

> CCPL4 is meant as a universal tool, without the need for ports, and in
> some jurisdictions the processed data actually might qualify as an
> adaptation. We cannot simply define in our FAQs everybody's state of the
> law the way we'd like it to be.

We do that already:

  "Note that all CC licenses allow the user to exercise the rights
   permitted under the license in any format or media. Those changes
   are not considered adaptations *even if applicable law might suggest
   otherwise*." (my emphasis)

(From: 
http://wiki.creativecommons.org/Frequently_Asked_Questions#Does_my_use_constitute_an_adaptation.3F)

> Here's is the problem I have with this amendment:
>
> For a number of jurisdictions it "regulates" something that is state of
> the law anyways, thus giving a false impression about the things you
> need permission for.

That, too, is a concern.

> Then again, that is maybe lesser damage compared to
> saying nothing about it in jurisdictions where you actually
> need permission.

The CC ND has been in use for about ten years now.  Has there been
a *single instance* were somebody has said:

  "Stop all text and data mining activity on my ND-licensed work now!"

I don't think so.  CC is trying to "fix" a non-problem here.

On the other hand, the "fix" is confusing to the public because the
fine print in the legal code grants the licensee rights that is not
mentioned in the name or in the deed. This discrepancy between
name/deed and legal code is harmful to the reputation of CC and
difficult to explain to the public.  And if this discrepancy
is pointed out by parties hostile to CC, it may lessen the
public's confidence in the integrity of the CC licenses.

> > Or, if you *must* have something to address this in the license,
> > add the following sentence to the definition of "Adapted Material":
> >
> >     "For purposes of this Public License, Adapted Material is not
> >      produced when the Licensed Material is used for text and data
> >      mining."

> That might be a good compromise - only caveat: I guess, data mining is
> not the only thing meant to be possible ...

Well, enabling "text and data mining activity" was the only "benefit"
that would follow from this change in the original post about it from
Sarah Pearson (2013-10-18 22:38).  If there are other "benfits" that
were also on the table, I would like to hear about them.
--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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