- Introduction
Questions on copyright revolve around the position of legal system in relation to regulation of cultural and intellectual products, i.e. their creation, use and distribution. However, there are cases where copyright goes too far when protecting commercial culture at the expense of non-commercially benefiting private rights holders to the detriment of the public domain and inhibiting streams of inputs necessary for continued artistic and intellectual development. Copyright was created long before the invention of the Internet, which can make it difficult to legally perform actions we take for granted on the network: copy, paste, edit source, and post to the Web. This overprotection may result in effects contrary to copyright’s goals of supply of information.
Creative Commons is a non-profit organization which attempts to build on existing copyright law but it offers a set of “some rights reserved” as opposed to “all rights reserved” licenses. Holders of Creative Commons licenses disclaim part of the default protection that attaches under-statutory law. Creative Commons licenses emerged from Lawrence Lessing’s notion that property laws are not very successful in balancing private rights against public needs and that protection of intellectual property had shifted too far, disabling young creators to learn from the past. The primary licensing terms are Attribution (BY, requires giving credit for the work used), Non-commercial (NC, authorizes non-commercial use of a licensed work), Share Alike (SA, requires any release of a work using licensed work to be under the same terms) and No Derivatives (ND, specifies that the owner is not authorizing use of the work in any other work). When using these conditions of the Creative Commons, six major licenses may be combined: Attribution, Attribution Share Alike, Attribution No Derivatives, Attribution Non-commercial, Attribution Non-commercial Share Alike, and Attribution Non-commercial No Derivatives. These licenses give creators of information the opportunity to easily express which rights they reserve and which rights they waive so that others may fairly use their information. The mission of the Creative Commons is to maximize digital creativity, sharing, and innovation by developing and supporting legal and technical infrastructure.
Creative Commons were created in 2002 and since that time they have gone through various changes and adaptations. The latest adaptation from version 3.0 to version 4.0 lasted two years and it was finally released in November 2013. It brings easier understanding and use for licensors and licensees all over the world.
- 0 CC Licenses
The first discussion on new version was held in 2011 and after two years of versioning process the CC license suite was published on 25th of November. This is the fourth time, the CC versioned its core license suite since 2002 when the first version was launched. The 4.0 license suite includes adaptation of the core suite of international licenses in order to operate globally and to ensure they are adopted worldwide in a process of internationalization. Interoperability between CC licenses and other licenses is the next point, which CC licenses intend to maximize. CC with the new suite aims to endurance and stability.
Due to some doubts revolving around the questions about internationalisation and copyright-like rights that can interfere with the reuse of CC licensed works, Creative Commons issued a new version of licenses. The 4.0 licenses are the product of several important policy decisions made during the versioning process. The new generation of CC licenses is more user-friendly and more internationally robust than previous versions. The CC’s goal is to ensure that all legal tools they provide work globally. Until now, CC offered six international copyright licenses that were not ported and were based on various international copyright treaties (Berne convention, Brussels convention, Geneva convention, Rome convention, WIPO Copyright Treaty) and also ported versions of its six licenses, which were based on the international licenses but modified in a way that considers local nuances, language and protocols. Porting was a process of translating and adapting licenses to local laws in over 60 jurisdictions. It lasted for six years.
Version 4.0 is the most internationally enforceable set of CC licenses to date, because these licenses are ready-to-use without porting. CC re-evaluated the necessity of porting and as of version 4.0 it is discouraging ported versions and recommending the usage of the version 4.0 international licenses. All CC licenses are intended to work worldwide. Among other reasons, the international licenses are essentially jurisdiction-neutral while remaining effective globally. With the release of 4.0, CC also introduced official translations of the CC licenses so that users of CC licenses material worldwide understand the terminology. The version 3.0 was CC’s first attempt at creating a generic, international license but also cases of porting were made. Creative Commons considered a serious limitation when creators in jurisdictions without ports were uncomfortable using CC licenses, refrained from joining the open licensing community or adopted licenses incompatible with CC licenses.
Rights outside the scope of copyright can complicate the reuse of CC- licensed material and it can happen that those rights are not addressed directly in a copyright license. With open- ended license version 4.0 addresses this challenge that identifies categories of rights that could interfere with reuse of the material. Sui generis database rights are not covered by the 3.0 non-ported licenses but the version 4.0 encompasses them besides performance, broadcast and sound recording rights.
The second compelling reason to version involved on-going challenges associated with sui generis database rights which grant qualifying database makers the right to prohibit the extraction and reuse of a substantial portion of a database. These rights can interfere with use of copyrighted works if not addressed intentionally within the licenses. In the 3.0 licenses, CC chose as a policy matter to neutralize sui generis database rights meaning users never had to comply with the license conditions where only those rights existed and applied. Version 4.0 addresses sui generis database rights and copyright-like rights. Both are now within the scope of all six 4.0 licenses and require compliance with the license conditions when applicable to the particular usage.
ShareAlike
In the earlier version Share Alike compatibility with licenses outside the CC licenses is possible only for BY-SA works, version 4.0 expands this mechanism to BY- NC- SA licenses allow a later version or another compatible license to be applied by an adapter. All upstream Share Alike licenses apply to an adaptation and this is important because, the adapter’s license could be different from the original Share Alike license. The version 4.0 eases downstream compliance and facilitate reuse of adaptations of works originally created under a 4.0 SA license. When using adaptations of 4.0 SA-licensed works, users are granted express permission to exercise the rights of upstream licensors under the conditions of the adapter’s license. Establishing this as a clear rule in 4.0 makes sense for the SA licenses, because licensors and licensees expect the same conditions to apply to all adaptations in the SA context. Offering downstream users a relatively simplified way to comply with their obligations to all upstream licensors is also consistent with the spirit of SA.
Moral rights
Version 4.0 made a choice to limit the role of moral rights where the exercise of those rights by licensors would prevent uses the CC licenses are designed to permit, but only to the extent those rights are held by the licensor and may be waived or not asserted. The rationale for this is that licensors should not be allowed to assert those rights to prevent others from exercising rights they grant through our licenses. The license only affects moral rights held by the licensor and it affects them only to the extent necessary to make the licensed rights meaningful. Moral rights can include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The CC licenses minimize the effect of moral rights. Applying a 4.0 license, the licensor agrees with the waiving of moral rights to the extend where the public can exercise the licensed rights. In earlier licenses, this is implied but not explicit. Publicity, privacy and personality rights are also treated in the same manner. The policy rationale is the same. In version 4.0 rights that allow individuals to control the use of their voice, image or other identified aspect of their identity- like publicity, privacy and personality rights- are waived to limited extend. Unless the creator has waived the requirement, not supplied the name or asked that the name to be removed, the licensee satisfies the attribution requirement by linking to a separate page with attribution information. This process is also applied to verbatim reproductions of a work, if she does not want to asssociate her name with it. Old version allowed only the removal of the licensor name from an adaptation.
Termination
Licensees may have their rights under a terminated 4.0 license automatically reinstated without first seeking the express permission of the licensor in limited circumstances. The provision only applies to violations that are cured by licensees within 30 days of becoming aware of the problem. Licensors are still allowed to seek remedies for violations. All the CC licenses terminate if licensor fails to follow license condition and in previous versions there is no automatic reinstatement. In 4.0 licensee’s rights are automatically reinstated if the failure is corrected within 30 days of discovering the violation. 30-day window to correct license violations
If licensee breaks their terms, CC licenses terminate. Under 4,0 licensee’s rights can be reinstated if corrected within 30 days of discovering the breach. Users who act promptly, can therefore continue using CC-licensed work without loosing their rights permanently.
NonCommercial
Creative Commons does not change the scope and the definition of NonCommercial despite proposals to deprecate or not to version the three NonCommercial licenses or rename them.
The 4.0 NonDerivatives allows the creation and use of adaptation provided they are not publicly shared.
Increased readability
The 4.0 licenses are easier to understand, better organized and shorter. The simplicity helps licensors and reusers to better understand their rights and obligations and improves enforceability of the licenses.
Clarity about adaptations
Licenses BY and BY-NC 4.0 are also clearer about licensing adaptations and help remixers to understand their obligations. They make clear the fact, that licensor can apply any license to his/her work as long as it does not prevent users of the remix from complying with the original license.
Although the license 3.0 proved a tremendous improvemend following its publication in 2007, limitations like full international acceptance, sui generis database and other copyright-like rights that can interfere with the reuse of CC licensed work.
- Conclusion
Altough the verison 3.0 achieved considerable success, users found limitations which motivated Creative Commons to think of a new version. One of the most convincing limitations is sui generis database which exists in EU and their treatment in 3.0. Also questionable was the fact that some jurisdictions did not port licenses due to the demanding and time consuming process and users did not wish to use unported international licenses either. Creative Commons licenses should be accessed easily and understood globally. This motivation intrigued experts from the field of intellectual property to create a version, which would be fully internationalized, interoperable, better organized and robust. The motivation of the Creative Commons non- profit organization is to promote the idea that people should have the opportunity to learn from the past, to have the access to the work of ancestors and also to build the foundation for the creative future. Only if licenses will be understood and easily used, this idea could be applied.
- Sources
- What’s new in 4.0, http://creativecommons.org/Version4, last accessed: 27. 02. 2014
- CC Wiki, Frequently Asked Questions, http://wiki.creativecommons.org/Frequently_Asked_Questions, last accessed: 27. 02. 2014
- European Commission, Protection of Databases, http://ec.europa.eu/internal_market/copyright/prot-databases/index_en.htm, last accessed: 27. 02. 2014
- Treaties and Contracting Parties: Berne Convention, World Intellectual Property Organization, http://www.wipo.int/treaties/en/ip/berne/ , last accessed: 27. 02. 2014
Lex Nuntius 