Development of Creative Commons licenses

[Kat Walsh <kat AT creativecommons.org>]

Summary: revised version of Statement of Intent posted. Comments open now,
and closed on the 21st of February, with specific prompt in this
message about including the last two items.

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We have made a few revisions to the draft statement of intent for the
ShareAlike licenses in preparation to publish it in the next few
weeks. As described previously, this document will be a commitment by
Creative Commons to the characteristics of all future versions of the
ShareAlike licenses. The initial version was posted in November for
discussion.

As posted Nov. 15:
http://wiki.creativecommons.org/index.php?title=DRAFT_ShareAlike_Statement_of_Intent&oldid=95367

Previous cc-licenses post:
https://lists.ibiblio.org/sympa/arc/cc-licenses/2013-November/007506.html

Comparison of old and new version in legible format:
http://wiki.creativecommons.org/images/3/39/ShareAlike_intent_changes.pdf

The document is substantially the same, but there are a few changes.
Some changes involve clarification of points that could otherwise have
been unclear or open to misinterpretation. Some of the changes include
mentioning the ported licenses: while we are seeking to minimize
porting of 4.0, the possibility is still open, both for 4.0 and for
potential future versions.

The final discussion period is beginning now--we intend to close
comments and prepare the final version by February 21. The document is
open for general comments on all aspects, but we'll be sending a few
specific discussion prompts between now and then.

The first question is on the two final items included in this draft
for discussion, #9 and #10, that we expect not to keep in the final
document without persuasive argument in favor of it or significant
revision:

#9, on sublicensing: while the prohibition on sublicensing is
currently an important part of the way the licenses function, it is
possible that exceptions could be made in the future (and, indeed,
many such proposals were made during the 4.0 process, though
ultimately none were accepted). We are raising the point as a
potential item, but are likely to remove it unless a strong case is
made that this is essential to preserve in any future ShareAlike
license.

#10, no further restrictions or conditions on reuse. Proposed, but
difficult to make sufficiently specific to avoid overcommitting and
restricting future changes that would otherwise be desirable to the
SA-using community.



The current text is available on the wiki at:
http://wiki.creativecommons.org/DRAFT_ShareAlike_Statement_of_Intent

Reproduced here:

With the publication of version 4.0, which allows Adapted Material to
be used under the conditions of a later license (instead of, and not
in addition to, the original license applied), it has become important
to make a public commitment to uphold important attributes of the
ShareAlike licenses and their key conventions and processes. This is
in addition to the previous commitment we made, expanding upon it to
specifically address concerns around the way licensed material may be
used in adaptations under a later version of the ShareAlike license.

While we intend to ensure that future license versions (including any
potential ported licenses) maintain the same spirit and general
operation as the previous versions, with this change to the license we
think it is important to clarify further what users of our licenses
can expect. Many of these commitments apply to all of CC's licenses,
not just ShareAlike, but it is in this context that they are currently
most important to name.

This is not the same list as the criteria for compatibility. While we
expect that many of these will also inform considerations of license
compatibility, there may be reasons for a compatible license to
differ--for example, while we believe it is important to have a public
drafting process, there may be licenses drafted privately which should
nonetheless be candidates for compatibility.

This is a commitment to the license-using community for post-4.0
versioning efforts of the ShareAlike licenses and any of its official
translations. (It also applies to any ports of version 4.0 and ports
of later versions.) It is possible that in the future, CC will decide
to create a copyleft license that deviates from the statements
expressed here and in the prior statement; if this happens, it will
not be called a ShareAlike license.

1.    Any license that CC calls a ShareAlike license must adhere to
these commitments, in addition to any previous commitments.

The following commitments are to elements of substance and process
that CC considers essential to the ShareAlike licenses. Any license CC
stewards that deviates from these commitments will not be called a
"ShareAlike" license, and would not be automatically compatible with
previous versions of ShareAlike.

2.    The SA licenses will always themselves be revised through a
public process just as with our other licenses and legal tools.

We believe that community input and development in the open is
essential to the development of widely-used public licenses,
especially where future decisions of the license steward will affect
the expectations of current licensors. Creative Commons is committed
to continuing to develop the ShareAlike licenses using a public
process, with input from the community of license users and other
stakeholders. All decisions CC makes on the substantial elements of
the license will be publicly documented, and open to public or private
feedback before the text is final.

3.    Compatibility with ShareAlike for licenses not stewarded by CC
will always be determined by a public, transparent process.

Because licensors are granting permission for their works to be
distributed as part of Adapted Material reused under the conditions of
any compatible Adapter's License, it is important that any such
license not stewarded by CC be named only after consultation with the
license-using community, just as CC licenses are developed through a
community process.

4.    The scope of rights covered by the licenses will never be
narrowed, but it may expand.

Future users of the material should have all of the rights and
freedoms that a licensor intended to grant them, and should know that
they have them. Ideally, this wouldn't need to change between
versions. However, new legislation continues to be enacted which has
an impact on the rights granted under copyright, and which creates new
rights that have similar effects. We've seen this in the relatively
recent past with the creation of the sui generis database right and
with various broadcasting rights, and we expect this to continue.

While CC and many in its global network will continue publicly
opposing such expansions of copyright-like rights, we need to preserve
the ability to address them in the licenses where they do come into
effect. The 4.0 licenses are intended to cover all of the
copyright-like rights that may affect a licensee's ability to exercise
the core right licensed, copyright--which is why they are licensed
alongside the copyright itself. For this to continue to be true, the
scope of the license may need to expand, either by licensing or
waiving/not asserting these new rights, as the legal environment in
which our licenses operate evolves. (However, were we to expand the
scope of rights licensed, those newly included in subsequent versions
would not be automatically considered to be granted by the licensor.)
Rights not asserted in the 4.0 license, including both those
explicitly not licensed and those not mentioned at all, may be
included as licensed rights in future versions, but may not become
reserved rights.

5.    The ShareAlike licenses will always be designed to operate as
internationally as possible.

Early versions (pre-3.0) of the licenses were drafted against U.S.
law, which created complications for material created in and shared
across many other jurisdictions. With the 3.0 suite, CC made its first
effort to internationalize the licenses, creating a version that
licenses rights across the globe. With 4.0, still further improvements
to internationalization have been made. Future versions will also be
drafted with this principle in mind, addressing the existing and
changing legal environments around the world, to better reduce
barriers to worldwide sharing; this may necessitate many small changes
in newer versions to address these needs.

6.    The ShareAlike licenses will never attempt to override
exceptions and limitations, or regulate uses of material in the public
domain.
While copyleft is a valuable tool for creating a commons of free
works, exceptions and limitations to copyright are essential to free
expression and upholding the balance that copyright strikes between
authors and the public. We do not believe any public copyright license
can or should attempt to override these through contractual or other
means. To that end, no ShareAlike license will attempt to extend its
reach to control uses that are in the public domain, uncopyrightable,
or protected by recognized exceptions and limitations to copyright and
other rights covered by the licenses.

7.    The ShareAlike licenses will always require some manner of
attribution, and permit anonymity.

The attribution requirements have changed across versions, including
greater flexibility to allow for many different types of usage, but
proper attribution will always be required by the license,
particularly an element  or mechanism by which the author or creator
can be identified. (But anonymous and pseudonymous authorship will
always be permitted--an author may waive this condition, decline to
provide a name, or supply a pseudonym to be credited by.)

8.    The ShareAlike licenses will always be compatible with later
versions of the same ShareAlike licenses.

Any license that shares the same name should be one that has
essentially the same features and intended effect as a previous
version, even if its exact terms accommodate new situations and new
knowledge. Because of this, when you have material under any post-1.0
ShareAlike license, all future versions will be permissible adapter's
licenses.

(Backward compatibility with previous versions is not, however,
guaranteed--candidates for backward compatibility will be evaluated
case-by-case and listed on the compatibility page where applicable.)

9.    The ShareAlike licenses will always prohibit sublicensing.

While we believe that allowing the flexibility of complying with
conditions of a later version or a compatible license improves the
usability of the ShareAlike licenses, we think it's important that the
license always flows directly from the licensor to any reusers. It is
the original licensor granting the permissions that a user gets, and
not anyone who has received the material in between.

10.     No further restrictions or conditions on reuse will be added
to the ShareAlike licenses.

The conditions in the ShareAlike licenses are limited to those we
think necessary to allow works to be shared and adapted freely using
the copyleft mechanism and avoid neutralizing parts of the license. To
avoid introducing additional friction to reuse, future versions of
ShareAlike will not impose any other conditions on exercising the
licensed rights.


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-Kat

-- 
Kat Walsh, Counsel, Creative Commons
IM/IRC/@/etc: mindspillage * phone: please email first
Help us support the commons: https://creativecommons.net/donate/
California Registered In-House Counsel #801759
CC does not and cannot give legal advice. If you need legal advice,
please consult your attorney.