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Creative Commons: a user guide

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Simone Aliprandi

Chapter Two. The licenses

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1. BASIC PRINCIPLES

1First of all, to avoid falling into the most common misunderstandings about Creative Commons licenses, we should set the tenets that are valid for all the open content licenses.

A. A DEFINITION OF “COPYRIGHT LICENSE”

  • 5 «The verb license or grant license means to give permission. The noun license refers to that permi (...)

2A copyright license is a legal instrument with which the copyright holder rules the use and distribution of his work. Thus, it comes to a civil law tool which (based on copyright) helps to clear up for users what can or cannot be done with the work. The “license” term comes from the Latin verb “licere” and generically represents permission, in fact its main function is to authorize uses of the work5.

B. THE LICENSE AND THE RESTRICTION OF THE WORK

3By clearing up the concept of license we can understand how one of the main misunderstandings about open content licenses is groundless: i.e. the one according to which a license can be a form of restriction of a copyrighted work. In fact, it is not the license itself which restricts the work; default copyright restricts creative works, while an open content license moves exactly in the opposite direction. In effect, one of the main purposes of an open content license is to authorize some kinds of use which would not be normally allowed in the traditional copyright model (i.e. the “all rights reserved” model).

C. THE LICENSE AND THE ACQUISITION OF COPYRIGHT

  • 6 «Time was you had to put Big C [i.e. the copyright symbol: ©] on anything you wanted to copyright (...)

4For the same principle the application of a license has nothing to do with the acquisition of copyright on the creative work and even less with the proof or protection of the authorship. The application of a license on a creative work concerns a subsequent phase in regard to the acquisition of copyright and to the obtainment of a proof of authorship. Therefore, first of all the author gets the copyright on his work (automatically6), then he decides to regulate his rights by applying a license.

D. LICENSOR AND LICENSEE

5Let’s start from the presupposition that the only subject who has the title to rightfully apply a license to a creative work is the owner of all its rights. The subject is usually the author of the work, but he can transfer all his rights by a contract to another subject (for example a publisher, an agency, a production company...); in this case he would also lose the possibility to choose the type of license to apply to the work. In order to avoid misunderstandings (and since it is not so important for our analysis what kind of subject would make this choice), we will always talk about “licensor” to generically mean the copyright holder who decides to apply a license to it.

6An open content license produces effects on a variety of indeterminate subjects. These subjects can be mere end‐users of the work (readers, listeners, spectators...); but in some cases (those licenses which allow for modification and re‐publication of the work) they can also be active subjects in the virtuous mechanism of the open content phenomenon.

7Therefore, also in this case we shall use an all‐embracing term which can indicate every potential recipient of the license: that is the “licensee”. We shall use the expression “licensed work” to represent the work to which the license has been applied.

E. WRITING A LICENSE

8Since this is a civil law issue (more precisely the contractual law), there are not any specific procedures to follow or formalities to respect. Thus, every author (or other copyright holder) is free to write his own personal license and to apply it to his work. However, like every legal instrument, in order to take advantage of all the tools and protections provided for by the law, it is necessary to take into account the technicalities of civil law. Indeed a copyright license is a legal document which needs preparation and expertise.

9In other words, the concrete problem is that a poorly written license without the proper language or without important clauses, would probably not perform its function or could even have a boomerang effect on the licensor.

F. THE SENSE OF THE STANDARDIZED LICENSES

10If we rigorously exclude the “do it yourself”, there are two possible ways: either the licensor can consult a lawyer to draw up a license (but this could also be expensive); or he can trust the standardized licenses that are released by specific projects and non‐profit organizations such as Creative Commons, the Free Software Foundation, and the Apache Software Foundation.

11An essential aspect should be clear: these organizations do in no way become the parties of the case, thus they are not liable for each application of the licenses; nor do they directly deal with legal advice related to the use of their licenses. These bodies only act as compilers and promoters of the licenses; it is possible to interact with the staff of these projects, sending comments, indicating case studies, starting public debates, but it is unthinkable that they should have to be involved in every single case. Every copyright holder who decides to apply a standardized license to his work should take full responsibility for it; therefore it is important to be well informed.

2. THE THREE DIFFERENT SHAPES OF THE LICENSES

12In this section we will show why the Creative Commons licenses is a cut above the other open content licenses.

13The clever discovery of the promoters of the project was in fact to release every license in three representations that are different by the form but connected by the essence.

A. THE LEGAL CODE

14The proper license (i.e. the representation that shall be legally relevant) is the so‐called “Legal code”, made up of several preambles and eight articles, where the distribution of the licensed work is regulated.

15Many people though realized that the average license user is not induced to read and understand a document like that: sometimes he disregards it intentionally, sometimes he does not have adequate preparation to do so. Therefore, the risk is that the licenses would be used inaccurately with little knowledge; that false information on their use would be easily diffused; or that a sort of mistrust would prevail so that authors and publishers would stay far away from these tools.

B. THE COMMONS DEED

16Hence Creative Commons thought of designing brief explanations of the license that are written in clear language and structured with simple and schematic graphics: this second “shape” of the licenses is called the “Commons deed”.

  • 7 This disclaimer is linked by every Commons deed.

17However, it is important to remember that «the Commons Deed is not a license. It is simply a handy reference for understanding the Legal Code (the full license) – it is an easy readable expression of some of its key terms. Think of it as the user‐friendly interface to the Legal Code underneath. This Deed itself has no legal value, and its contents do not appear in the actual license.»7

18Therefore the Commons deed in a fews lines condenses the sense of the license and makes a link to the Legal code along with the various available translations of the licenses.

C. THE DIGITAL CODE

19Finally, the third “shape” of the licenses is called “digital code”, that is metadata – data about data – a description of the license that can be understood by computer programs such as search engines.

20Thus, Creative Commons developers designed a metadata system called CCREL (“Creative Commons Rights Expression Language”) with which it is possible to annotate licensed works, facilitating functionality such as copy/paste HTML for using a work with licensor‐specified attribution and correct license notice, and license‐aware search.

3. THE CHARACTERISTICS AND THE FUNCTIONING OF THE LICENSES

21As we has already explained, the Creative Commons licenses are inspired by a “some rights reserved” model: that means that the copyright holder, applying a Creative Commons license, decides to keep just several rights of all the rights granted to him by law.

A. COMMON FEATURES OF ALL CREATIVE COMMONS LICENCES8

22All Creative Commons licenses have many important features in common.

i) From the licensor’s point of view

23Every license will help you:

  • retain your copyright;
  • announce that other people’s fair use, first sale, and free expression rights are not affected by the license.

24Every license requires licensees:

  • to get your permission to do any of the things you choose to restrict (e.g., make a commercial use, create a derivative work);
  • to keep any copyright notice intact on all copies of your work;
  • to link to your license from copies of the work;
  • not to alter the terms of the license;
  • not to use technology to restrict other licensees’ lawful uses of the work;

25Every license allows licensees, provided they live up to your conditions:

  • to copy the work;
  • to distribute it;
  • to display or perform it publicly;
  • to make digital public performances of it (e.g., webcasting);
  • to shift the work into another format as a verbatim copy.

ii) From the licensee’s point of view

26When you use any CC material, you must always:

  • attribute the creator of the work9;
  • get permission from the creator to do anything that goes beyond the terms of the license (eg. making a commercial use of the work or creating a derivative work where the license does not permit this);
  • keep any copyright notice attached to the work intact on all copies of the work;
  • name the CC license and provide a link to it from any copies of the work; and
  • where you make changes to the work, acknowledge the original work and indicate that changes have been made (eg by stating ‘This is a French translation of the original work, X’).

27In addition, when you use any CC material, you must not:

  • alter the terms of the license;
  • use the work in any way that is prejudicial to the reputation of the creator of the work;
  • imply that the creator is endorsing or sponsoring you or your work; or
  • add any technologies (such as digital rights management) to the work that restrict other people from using it under the terms of the license.

B. STRUCTURE AND BASIC CLAUSES OF THE CREATIVE COMMONS LICENSES

28Creative Commons licenses are ideally structured in two parts: the first part indicates the “freedoms” that the author wants to allow about his work; the second part explains the conditions on which is allowed to be used.

29Regarding the first part (the “freedoms” that the licensor concedes to the licensees) we can say that all the licenses allow the copying and the distribution of the work, using the following words and the following visuals:

«You are free to to Share – to copy, distribute and transmit the work»

30On the other hand, only some licenses (not all of them) allow the licensees to also modify the work, specifying this with the following simple phrase and visual:

«You are free to Remix – to adapt the work»

31Regarding the second part (the conditions made by the licensor to use his work) we can say that Creative Commons licenses are articulated into four basic clauses which the licensor can choose and match to his needs

Attribution – «You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).»

32This clause is a feature in every license. It states that every time we use the work we must clearly indicate who the author is.

Non Commercial – «You may not use this work for commercial purposes.»

33This means that if we distribute copies of the work, we can not do it in any way which is primarily intended for or directed toward commercial advantage or private monetary compensation. To do this, we have to ask the licensor for specific permission.

No Derivatives – «You may not alter, transform, or build upon this work.»

34If we want to modify, to correct, to translate or to remix the work, we have to ask the licensor for specific permission.

Share Alike – «If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.»

35This clause (as it is in the Free Software model) grants that the “freedoms” conceded by the author will be also kept on the derivative works (and on the derivative ones of the derivative ones, with a persistent effect).

C. THE LICENSES SET

36From the matching of these four basic clauses we have the six sheer Creative Commons licenses, which are named by referring to the clauses shown in the previous section.

37They are (from the most permissive to the most restrictive):

Attribution – Share Alike

Attribution – No Derivatives

Attribution– Non Commercial

Attribution – Non Commercial – Share Alike

Attribution – Non Commercial – No Derivatives

38There are two essential points in this list:

  • the “Attribution” clause is present in every license;

39the “No Derivatives” clause and the “Share Alike” clause are incompatible with each other (in fact, the first one denies the modification of the work, while the second implicitly gives permission to modify the work).

40At the official Creative Commons web‐site10 there is a more detailed explanation about every single license:

Attribution
This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

Attribution – Share Alike
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

Attribution – No Derivatives
This license allows for redistribution, commercial and noncommercial, as long as it is passed along unchanged and in whole, with credit to you.

Attribution – Non Commercial
This license lets others remix, tweak, and build upon your work non‐commercially, and although their new works must also acknowledge you and be non‐commercial, they don’t have to license their derivative works on the same terms.

Attribution – Non Commercial – Share Alike
This license lets others remix, tweak, and build upon your work non‐commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by‐nc‐nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be noncommercial in nature.

Attribution – Non Commercial – No Derivatives
This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

D. THE UPDATE OF THE LICENSES

41As has happened for most of the organizations which release standardized licenses, the text of the Creative Commons licenses is subjected to irregular updates due to the possible need to improve, specify, complete, or eliminate some of the clauses. It can depend on various factors, such as the evolution of the market and technological innovation that bring new topics to consider in the licenses.

  • 11 Not in every country.

42At the date of the writing of this book (August 2010) the Creative Commons licenses are at version 3.011.

4. OTHER SPECIAL CREATIVE COMMONS TOOLS

43At the end of 2007 Creative Commons launched two new interesting projects which aim to enrich the supply of services besides the mere licenses. We are referring to two tools which play two different roles, thanks to which the licensors can communicate additional information besides the information that is already provided by the licensing process.

A. CC PLUS

44As written on the Creative Commons website, CC Plus is «a protocol providing a simple way for users to get rights beyond the rights granted by a CC license»12.

45CC Plus is a single annotation which denotes that further permissions beyond those already provided by the license may be available.

46«For example, a work’s Creative Commons license might offer noncommercial rights. With CC Plus, the license can also provide a link by which a user might secure rights beyond noncommercial rights – most obviously commercial rights, but also additional permissions or services such as warranty, permission to use without attribution, or even access to performance or physical media.»13

47To better understand, let’s reflect on one of the most typical cases: the case of an independent music label which publishes songs with a “Non Commercial” license on its website. Thus, the songs licensed this way can be freely downloaded and used for non commercial purposes. All the same, for those who want to also make commercial use, the label decides to provide special conditions (for example the payment of a fee or the application of an advertising message); so it entrusts its legal office with the writing of a separate license in which there are the clauses that the licensees shall respect to make commercial use of the songs.

48The text of this separate license can be published in a special page of the label’s website, but in order for it to be noted on a Creative Commons deed, the CC Plus annotation comes into play.

49Therefore, under the classic disclaimer where the application of the Creative Commons license is we will find the following phrase: “permissions beyond the scope of this license may be available at...”; and here we will add the web address where the supplementary license is located.

50The same type of argument is valid for licenses which contain any of the “attribution”, “no derivative works”, or “share alike” clauses, and to which the licensor wants to add offer different terms to allow use of the work without providing credit or the modification of the work outside of compliance with the CC license terms offered.

51Here is a hypothetical use of CC Plus:

52More details about this tool are available at http://wiki.creativecommons.org/​CCPlus.

B. CC0 (CC ZERO)14

53CC0 is another interesting project by Creative Coommons: it is a tool that allows creators to effectively place their works in the public domain through a waiver of all copyright to the extent permitted by law.

54CC0 enables scientists, educators, artists and other creators and owners of copyright‐protected content to waive copyright interests in their works and thereby place them as completely as possible in the public domain, in order for others to freely build on, enhance and reuse the works for any purposes without restriction under copyright.

55In contrast to CC’s licenses that allow copyright holders to choose from a range of permissions while retaining their copyright, CC0 empowers another choice altogether – the choice to opt out of copyright and the exclusive rights it automatically grants to creators – the “no rights reserved” alternative to our licenses.

56In effect, we know that copyright and other laws throughout the world automatically extend copyright protection to works of authorship and databases, whether the author or creator wants those rights or not. CC0 gives people who want to give up those rights a way to do so, to the fullest extent allowed by law. Once the creator or a subsequent owner of a work applies CC0 to a work, the work is no longer his or hers in any meaningful legal sense. Anyone can then use the work in any way and for any purpose, including commercial purposes, subject to rights others may have in the work or how the work is used. Think of CC0 as the “no rights reserved” option.

57And how does it work? A person using CC0 (called the “affirmer” in the legal code) waives all of his or her copyright along with neighboring and related rights in a work, to the fullest extent permitted by law. If the waiver is not effective for any reason, then CC0 acts as a license from the affirmer granting the public an unconditional, irrevocable, non exclusive, royalty free license to use the work for any purpose

58In substance, it consists in a procedure thanks to which the author certifies publicly that he wants to disclaim totally and irrevocably to exercise his rights, so that the work can be considered immediately in a public domain status. It can be implemented by helping the author to “sign” (even virtually) this declaration of purpose and by keeping a public evidence of it. Here is the screen‐shot of the CC0 procedure.

Notes

5 «The verb license or grant license means to give permission. The noun license refers to that permission as well as to the document memorializing that permission. License may be granted by a party (“licensor”) to another party (“licensee”) as an element of an agreement between those parties. A shorthand definition of a license is "an authorization (by the licensor) to use the licensed material (by the licensee).» Taken from http://en.wikipedia.org/wiki/License.

6 «Time was you had to put Big C [i.e. the copyright symbol: ©] on anything you wanted to copyright or else it entered the public domain – the commons of information where nothing is owned and all is permitted. You had to put the world on notice to warn them. That was Big C’s job and it was a useful one. What changed? The law. By the late 1980s U.S. law had changed so that works become copyrighted automatically the moment they’re made. The moment you hit save on that research paper... the second the shutter snaps closed... the instant you lift your pen from that cocktail napkin doodle... your creation is copyrighted whether Big C makes a cameo or not.» Taken from the script of the most famous Creative Commons informative video, called “Get Creative” and available at http://mirrors.creativecommons.org/getcreative/.

7 This disclaimer is linked by every Commons deed.

8 This section is partially taken from http://wiki.creativecommons.org/Baseline_Rights and from http://www.creativecommons.org.au/materials/whatiscc.pdf

9 For information on how to attribute a work, see the specific guide “How to Attribute Creative Commons Material” at http://creativecommons.org.au/materials/attribution.pdf.

10 Taken from http://creativecommons.org/about/licenses.

11 Not in every country.

12 http://wiki.creativecommons.org/CCPlus.

13 http://wiki.creativecommons.org/CCPlus.

14 This section is partially taken from http://creativecommons.org/about/cc0 and from http://wiki.creativecommons.org/CC0.

Table des illustrations

Légende (this picture is taken from http://www.creativecommons.org)
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-1.jpg
Fichier image/jpeg, 689k
Légende «You are free to to Share – to copy, distribute and transmit the work»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-2.jpg
Fichier image/jpeg, 560k
Légende «You are free to Remix – to adapt the work»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-3.jpg
Fichier image/jpeg, 561k
Légende Attribution – «You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-4.jpg
Fichier image/jpeg, 560k
Légende Non Commercial – «You may not use this work for commercial purposes.»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-5.jpg
Fichier image/jpeg, 561k
Légende No Derivatives – «You may not alter, transform, or build upon this work.»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-6.jpg
Fichier image/jpeg, 560k
Légende Share Alike – «If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.»
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-7.jpg
Fichier image/jpeg, 561k
Légende Attribution
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-8.jpg
Fichier image/jpeg, 564k
Légende Attribution – Share Alike
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-9.jpg
Fichier image/jpeg, 566k
Légende Attribution – No Derivatives
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-10.jpg
Fichier image/jpeg, 566k
Légende Attribution– Non Commercial
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-11.jpg
Fichier image/jpeg, 567k
Légende Attribution – Non Commercial – Share Alike
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-12.jpg
Fichier image/jpeg, 567k
Légende Attribution – Non Commercial – No Derivatives
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-13.jpg
Fichier image/jpeg, 567k
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-14.jpg
Fichier image/jpeg, 575k
URL http://books.openedition.org/ledizioni/docannexe/image/206/img-15.jpg
Fichier image/jpeg, 666k

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