053.2 Lesson 1
Certificate: |
Open Source Essentials |
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Version: |
1.0 |
Topic: |
053 Open Content Licenses |
Objective: |
053.2 Creative Commons Licenses |
Lesson: |
1 of 1 |
Introduction
The success of free software since the 1990s, along with the simultaneous triumph of the internet, have awakened a desire in other sectors for similar conditions to support the development and distribution of creative works, i.e. works that are fundamentally subject to copyright. These desires reflect a variety of interests.
Creative artists want to determine for themselves the conditions under which their works can be used by others. At the same time, however, they also have an interest in using the work of others for themselves, as creative processes have always done, for example by quoting, editing, or adapting. For the recipients of the works, questions arise as to the possibilities for use, for example whether and in what form a work may be reproduced or passed on.
In addition to clarifying such practical questions, regulations must be made in such a way that they are in line with applicable legal norms — primarily copyright law — which is made more difficult by the diverse ways copyright law is regulated internationally.
Last but not least, the rules should be easy to understand and simple to apply, in order to speed up creative processes and give creators and recipients legal certainty.
Origin and Goals of Creative Commons
The early licenses in the area of free software, above all the GNU General Public License, had done pioneering work, as they had succeeded in providing a reliable legal framework for the completely new processes surrounding the collaborative development of software.
In 2001, a group led by law professor Lawrence Lessig from Stanford Law School founded a non-profit organization called Creative Commons (CC), inspired by free software. The organization’s goal is summarized on the project website as follows:
Creative Commons is a global nonprofit organization that enables sharing and reuse of creativity and knowledge through the provision of free legal tools.
Website (FAQ)
With the term “commons,” referring to a form of communal economic activity already documented in the Middle Ages, the organization emphasizes a historically verifiable, deeply human need for collective action that is oriented toward the common good. Their self-imposed task is therefore to create a modern legal framework for creative work. Creative Commons transfers the demands and solutions of the free software movement to other creative fields such as literature, the performing arts (painting, graphics, photography, video, etc.), and music, but also documentation and scientific work — roughly speaking, all works that are subject to copyright.
Similar to the Free Software Foundation, Creative Commons also chooses to implement its goals through licenses: compilations of standardized, legally binding specifications that creators explicitly assign to their works, usually before they “release” works to the public, i.e. publish them.
The “all rights reserved” principle enshrined in US copyright law is perceived as too restrictive in view of the constantly growing technical possibilities available to creative processes. Creators themselves are often unclear as to how far they are allowed to build on the work of others without exceeding the limits of copyright law and, in the worst case, making themselves liable to prosecution. Creative Commons contrasts this heavy-handed regime with the principle of “some rights reserved”: The creators name those rights that they reserve — and thus waive all others.
The combination of just four simple basic conditions (modules) results in a total of six licenses from which authors can select and assign the appropriate one for their work.
The Creative Commons License Modules
The four modules just mentioned correspond to four simple basic decisions that an author makes with regard to the use and distribution of a work. Each module can be represented by two-letter abbreviation and a symbol. The respective definition is very short and understandable even for legal laypersons, which contributes greatly to the popularity of CC licenses. In individual cases, however, the clauses can lead to unresolved questions or gray areas.
Attribution (BY)
You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.
Attribution
The English word “by” indicates that the authors must be named, i.e. the work must be clearly attributed to the authors if it is used, reproduced, or passed on in any form. The BY module is the only one that is mandatory in all CC licenses. In other words, there is no work under the six standard CC licenses that can escape attribution.
This simple requirement can cause practical problems in collaborative projects developed over the internet. For example, in works derived from the online encyclopedia Wikipedia, it is quite questionable how “attribution” is to be “appropriately” carried out with thousands of contributors.
NonCommercial (NC)
You may not use the material for commercial purposes.
NonCommercial
The intention of the NonCommercial module seems clear at first glance: It is intended to prevent a freely available work from being appropriated by others for commercial purposes. This often concerns works that have been developed with public funds, for example at universities. These are meant to be “protected” from commercialization in order to ensure their quality and long-term free availability.
In fact, the NC module often causes uncertainty in practice, as it is by no means clear in individual cases when a use is actually commercial. Teachers who use materials under a CC license with an NC module, for example, are already in a legal grey area if they teach at a private school or a private university that students have to pay to attend.
Many critics of the NC module also reject the argument that free materials become “non-free” through commercial use, because the works are still also available free of charge.
NoDerivs (ND)
If you remix, transform, or build upon the material, you may not distribute the modified material.
NoDerivs
Derivatives (short: Derivs), meaning derivative works, have already been mentioned in other lessons. In the context of Creative Commons, the term also refers to the creation of new works on the basis of existing works covered by copyright; these can be learning materials that a teacher adapts for his lessons, for example, or the translation of a novel into another language. NoDerivs categorically excludes the distribution of modifications or adaptations of this kind: The work may be passed on only in the form published by the author.
Share Alike (SA)
If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
ShareAlike
The ShareAlike module indicates that a work may be shared only under the same conditions as those of the assigned license. SA is regarded as the counterpart to the copyleft principle in the free software licenses, which ensures that the freedoms granted by the license also apply unchanged to derived works.
The SA module is particularly interesting in combination with other modules because the SA requirement also updates other defined conditions, as we will see as we discuss the various licenses.
The Creative Commons Core Licenses
The combinations of the modules just presented result in a total of six licenses. There are only six because not all possible combinations of the four modules make sense: For example, the requirements to share even modified works under the same conditions (ShareAlike) and the prohibition of adaptations (NoDerivs) are mutually exclusive. Consequently, there is no license that contains both modules. Since the attribution of the author is also a component of all licenses, the result is the so-called core licenses we’ll discuss next.
The list of these licenses can also be imagined as a scale from “many freedoms” to “few freedoms,” since an author answers questions about the possibilities of use or their restrictions in relation to the work step by step and thus finally receives the desired license.
Creative Commons Attribution (CC BY)
The attribution of the author has already been mentioned as a mandatory component of all licenses, and so the first license, CC Attribution, includes only this module. A work is thus released for any form of use, modification, and distribution as long as the attribution requirement is met.
For example, if an author has published a poem under CC BY, a publisher could include it in a collection of poems without consulting the author and without any financial obligations and distribute it through bookstores, for example, as long as this poem is clearly marked as the author’s work.
Creative Commons Attribution-ShareAlike (CC BY-SA)
CC Attribution-ShareAlike_ corresponds to CC BY, but supplements it with the requirements of ShareAlike, i.e. the distribution of modified versions of the work under the same conditions.
For example, if a singer places her song under the CC BY-SA license, another band can cover or adapt this work, provided that they in turn publish their version of the song under under CC BY-SA or another license that is compatible with it.
Creative Commons Attribution-NonCommercial (CC BY-NC)
The CC Attribution-NonCommercial is the first license in the series that links the use of a work to a prohibition by excluding distribution and adaptation for commercial purposes.
In our example, a band would be allowed to adapt the singer’s song, but not to use this adaptation commercially, for example not to sell it on their own records or play it at concerts for which they receive a fee. However, the band would be allowed to additionally prohibit adaptations of their version, i.e. to publish the adaptation under the CC BY-NC-ND license.
Creative Commnons Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)
In the case of CC Attribution-NonCommercial-ShareAlike, the prohibition of commercial use is linked to distribution under the same conditions. To stay with our example: Although the band is allowed to cover the singer’s song, it is not allowed to add ND to the cover version because the arrangement must be distributed under the same conditions.
Creative Commons Attribution-NoDerivs (CC BY-ND)
Like NonCommercial, CC Attribution-NoDerivs is also based on a prohibition — in this case, the prohibition to modify or adapt a work. The band in our example would therefore not be allowed to distribute a cover version of the singer’s song.
The use of CC licenses with ND clauses (i.e. CC BY-ND license and the CC BY-NC-ND license presented next) is viewed with scepticism, particularly in the scientific field, because they can hinder the exchange of knowledge necessary for scientific progress. Even on the Creative Commons website, licenses with an ND module are described as incompatible with the principle of open access that is popular in science. As an example of the overly restrictive tendency of ND, it is cited that even translations of scientific articles are regarded as derivative works and are therefore prohibited.
Creative Commons Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)
The most restrictive of the CC licenses, CC Attribution-NonCommercial-NoDerivs, combines the prohibition of commercial use with that of the distribution of derived works. In positive terms, this means that a work may be reproduced and distributed only in the form published by the author and may be used only for non-commercial purposes.
The singer in our example thus prevents a band from covering her song (ND), but at the same time risks her song being excluded from on any platform that generates revenue from customers or advertising.
Creative Commons Zero (CC0) and the Public Domain Mark
It has already been mentioned that copyright law is regulated very differently in different countries and jurisdictions. Under US law, for example, a rights holder can completely waive his copyright. By doing so, they transfer their work to the so-called public domain, i.e. to general and unrestricted use.
In most European countries, however, in addition to the pure rights of use, copyright also includes personal rights, which are generally not transferable and therefore cannot be waived by the author. If an author wishes to release a work to the public, they waive all rights of use, but remain the author.
In addition, there are works whose use is not subject to any restrictions per se. These include, for example, works whose legal term of protection has expired (such as a novel 70 years after the author’s death), or works that were never protected in principle (such as legal texts).
Creative Commons provides two so-called public domain tools to identify works that are available to the general public without restriction.
Creative Commons Zero (CC0) attaches virtually zero conditions to the reproduction, distribution, and modification of a work. The obligatory attribution of the author in all CC licenses is also omitted. The license allows rights holders to mark their works as public domain in as many legal systems as possible.
Let’s take a learning document developed for teaching purposes as an example. The author or authors can use the CC0 label to ensure that this material can be used by anyone without any restrictions: It can be copied in whole or in part, distributed free of charge or for a fee, and integrated in whole or in part into other documents. The original authors do not have to be named anywhere.
To identify works that are not subject to copyright restrictions, Creative Commons recommends the Public Domain Mark:
The Public Domain Mark operates as a tag or a label, allowing institutions like those as well as others with such knowledge to communicate that a work is no longer restricted by copyright and can be freely used by others.
Public Domain Mark
Selecting Licenses and Marking Works
It has already been mentioned that Creative Commons aims to be as simple as possible for both licensors (content creators) and licensees (recipients of the works). In concrete terms, the organization offers a great deal of assistance from the selection of the appropriate license to the labeling of the work and its use.
The CC License Chooser on the organization’s website leads step by step to the recommendation of the appropriate license by posing simple questions that an author answers in relation to the desired use of their work (CC License Chooser).
If the proposed license corresponds to the author’s intentions, they can mark their work accordingly. The License Chooser provides HTML code, for example, which the author can add directly to a website displaying the work (HTML code with link to the license).
The result is then a standardized notice with the link to the corresponding license (License notice with link to the license).
The license-specific icons, in which the included modules are directly visible, have already been introduced. They have established themselves as “eye-catchers” identifying free content on the internet.
International and Ported Licenses
From the outset, Creative Commons has focused on the development of licenses that are as general as possible, i.e. valid worldwide, which it identifies accordingly with the addition of “international” (formerly also “unported”). On the other hand, there are variants that take into account the peculiarities of a regional or national legal system and are referred to as “ported.” For example, in addition to the CC BY-SA 3.0 Unported license, there is also a special version for Germany under the name CC BY-SA 3.0 Germany.
With the currently valid version 4.0 of the CC licenses, Creative Commons is striving for further standardization and has (so far) completely dispensed with ported versions. In version 4.0, the “international” license: is expressly recommended:
We recommend that you use a version 4.0 international license. This is the most up-to-date version of our licenses, drafted after broad consultation with our global network of affiliates, and it has been written to be internationally valid. There are currently no ports of 4.0, and it is planned that few, if any, will be created.
FAQ
Guided Exercises
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Which module of the Creative Commons license system is part of all six Creative Commons licenses?
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Which module of the Creative Commons license system requires the distribution of a work under the same conditions?
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How does CC0 differ from the six CC core licenses?
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What is the difference between “international” and “ported” licenses?
Explorational Exercises
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Is it possible to place a photograph of a work that is in the public domain under a CC license?
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Can an author publish his novel, in which he incorporates a Shakespearean sonnet in its entirety, under a CC license?
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A user publishes a photo of herself on her website under a CC license. Can she prevent the distribution of this image by invoking her personal rights?
Summary
Founded in 2001, the Creative Commons organization aims to support the sharing and use of creative works, i.e. works subject to copyright, with the help of free legal tools. The focus is on four modules (Attribution, NonCommercial, NoDerivs and ShareAlike), which are combined in six so-called core licenses and can be selected by authors for their works.
Answers to Guided Exercises
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Which module of the Creative Commons license system is part of all six Creative Commons licenses?
The “Attribution” module, abbreviated “BY.”
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Which module of the Creative Commons license system requires the distribution of a work under the same conditions?
The “Share Alike” module, abbreviated to “SA.”
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How does CC0 differ from the six CC core licenses?
With CCO, an author does not secure certain rights — as with the other CC licenses — but waives all rights to the work within the scope of the possibilities of the respective jurisdiction. This principle of “no rights reserved” corresponds to the designation of the work as public domain.
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What is the difference between “international” and “ported” licenses?
Until version 3.0, Creative Commons offered variants of its licenses that took into account the specifics of a regional or national jurisdiction. Since 4.0, CC has dispensed with these so-called “ported” versions and recommends the globally valid “international” version of the respective license.
Answers to Explorational Exercises
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Is it possible to place a photograph of a work that is in the public domain under a CC license?
This depends on whether the photograph fulfills criteria according to which it is itself protected by copyright. In other words, the photograph itself must be recognizable as a creative work and worthy of protection, for example through perspective, background, filters, etc. If this is the case, it can be placed under a CC license and the conditions of the CC license then apply. However, the original part, i.e. the actual motif, remains in the public domain.
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Can an author publish his novel, in which he incorporates a Shakespearean sonnet in its entirety, under a CC license?
Yes, but only the author’s own creative parts of the novel are subject to the CC license chosen by the author. The sonnet, which is in the public domain, remains in the public domain.
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A user publishes a photo of herself on her website under a CC license. Can she prevent the distribution of this image by invoking her personal rights?
By publishing a photo under a CC license, an owner generally agrees to its distribution. A limit is reached when the use of the photo violates the personal rights of the owner, for example when the image is grossly distorted or used for advertising or in a political context without the owner’s consent. The personal rights of the owner are not affected by the regulation of the rights of use by the CC license, so that in such cases she can take legal action against the use of her photo.