Creative Commons license

History

Lawrence Lessig and Eric Eldred designed the Creative Commons License (CCL) in 2001 because they saw a need for a license between the existing modes of copyright and public domain status. Version 1.0 of the licenses was officially released on December 16, 2002.

Origins

The CCL allows inventors to keep the rights to their innovations while also allowing for some external use of the invention. The CCL emerged as a reaction to the decision in Eldred v. Ashcroft, in which the United States Supreme Court ruled constitutional provisions of the Copyright Term Extension Act that extended the copyright term of works to be the last living author's lifespan plus an additional 70 years.

License porting

The original non-localized Creative Commons licenses were written with the U.S. legal system in mind; therefore, the wording may be incompatible with local legislation in other jurisdictions, rendering the licenses unenforceable there. To address this issue, Creative Commons asked its affiliates to translate the various licenses to reflect local laws in a process called "porting". As of July 2011, Creative Commons licenses have been ported to over 50 jurisdictions worldwide.

International use

China

A 2009 commentary remarked that Creative Commons Licenses were used to assert some exclusive rights by the owners of Chinese blogs rather than to relax control. This situation was due to the unique history of copyright in Communist China.

Applicable works

Work licensed under a Creative Commons license is governed by applicable copyright law. This allows Creative Commons licenses to be applied to all work falling under copyright, including: books, plays, movies, music, articles, photographs, blogs, and websites.

Software

While software is also governed by copyright law and CC licenses are applicable, the CC recommends against using it in software specifically due to backward-compatibility limitations with existing commonly used software licenses. Instead, developers may resort to use more software-friendly free and open-source software (FOSS) software licenses. Outside the FOSS licensing use case for software there are several usage examples to utilize CC licenses to specify a "Freeware" license model; examples are The White Chamber, Mari0 or Assault Cube. Despite the status of CC0 as the most free copyright license, the Free Software Foundation does not recommend releasing software into the public domain using the CC0 due to patent concerns.

However, application of a Creative Commons license may not modify the rights allowed by fair use or fair dealing or exert restrictions which violate copyright exceptions. Furthermore, Creative Commons licenses are non-exclusive and non-revocable. Any work or copies of the work obtained under a Creative Commons license may continue to be used under that license.

When works are protected by more than one Creative Commons license, the user may choose any of them.

Preconditions

The author, or the licensor in case the author did a contractual transfer of rights, needs to have the exclusive rights on the work. If the work has already been published under a public license, it can be uploaded by any third party, once more on another platform, by using a compatible license, and making reference and attribution to the original license (e.g. by referring to the URL of the original license).

Consequences

The license is non-exclusive, royalty-free, and unrestricted in terms of territory and duration, so it is irrevocable, unless a new license is granted by the author after the work has been significantly modified. Any use of the work that is not covered by other copyright rules triggers the public license. Upon activation of the license, the licensee must adhere to all conditions of the license, otherwise the license agreement is illegitimate, and the licensee would commit a copyright infringement. The author, or the licensor as a proxy, has the legal rights to act upon any copyright infringement. The licensee has a limited period to correct any non-compliance.

Types of licenses

Four rights

The CC licenses all grant "baseline rights", such as the right to distribute the copyrighted work worldwide for non-commercial purposes and without modification. In addition, different versions of license prescribe different rights, as shown in this table:

The last two clauses are not free content licenses, according to definitions such as DFSG or the Free Software Foundation's standards, and cannot be used in contexts that require these freedoms, such as Wikipedia. For software, Creative Commons includes three free licenses created by other institutions: the BSD License, the GNU LGPL, and the GNU GPL.

Mixing and matching these conditions produces sixteen possible combinations, of which eleven are valid Creative Commons licenses and five are not. Of the five invalid combinations, four include both the "ND" and "SA" clauses, which are mutually exclusive; and one includes none of the clauses. Of the eleven valid combinations, the five that lack the "BY" clause have been retired because 98% of licensors requested attribution, though they do remain available for reference on the website. This leaves six regularly used licenses plus the CC0 public domain declaration.

Six regularly used licenses

Six regularly used licenses The six licenses in most frequent use are shown in the following table. Among them, those accepted by the Wikimedia Foundation – the public domain dedication and two attribution (BY and BY-SA) licenses – allow the sharing and remixing (creating derivative works), including for commercial use, so long as attribution is given.

Zero, public domain

Besides copyright licenses, Creative Commons also offers CC0, a tool for relinquishing copyright and releasing material into the public domain. CC0 is a legal tool for waiving as many rights as legally possible. Or, when not legally possible, CC0 acts as fallback as public domain equivalent license. Development of CC0 began in 2007 and it was released in 2009. A major target of the license was the scientific data community.

In 2010, Creative Commons announced its Public Domain Mark (PDM), a symbol used to indicate that a work is free of known copyright restrictions and therefore in the public domain. It is analogous to the copyright symbol, which is commonly used to indicate that a work is copyrighted, often as part of a copyright notice. The Public Domain Mark itself does not release a copyrighted work into the public domain like CC0.

The symbol is encoded in Unicode as , which was added in Unicode 13.0 in March 2020.

As there is no single definition of public domain and copyright laws differ by jurisdiction, a work can be in the public domain in some countries while still being under copyright in others (so called hybrid status). It is also difficult to assess the legal status of many works. The PDM is recommended to be used only for works that are likely free from any copyright restrictions worldwide. Together, CC0 and the Public Domain Mark replace the Public Domain Dedication and Certification, which took a U.S.-centric approach and co-mingled distinct operations.

In 2011, the Free Software Foundation added CC0 to its free software licenses. However, the Free Software Foundation currently does not recommend using CC0 to release software into the public domain because it explicitly does not grant a patent license.

In February 2012, CC0 was submitted to Open Source Initiative (OSI) for their approval. However, controversy arose over its clause which excluded from the scope of the license any relevant patents held by the copyright holder. This clause was added for scientific data rather than software, but some members of the OSI believed it could weaken users' defenses against software patents. As a result, Creative Commons withdrew their submission, and the license is not currently approved by the OSI.

From 2013 to 2017, the stock photography website Unsplash used the CC0 license, distributing several million free photos a month. Lawrence Lessig, the founder of Creative Commons, has contributed to the site. Unsplash moved from using the CC0 license to a custom license in June 2017 and to an explicitly nonfree license in January 2018.

In October 2014, the Open Knowledge Foundation approved the Creative Commons CC0 as conformant with the Open Definition and recommend the license to dedicate content to the public domain.

In July 2022, Fedora Linux disallowed software licensed under CC0 due to patent rights explicitly not being waived under the license.

Retired licenses

Due to either disuse or criticism, a number of previously offered Creative Commons licenses have since been retired, and are no longer recommended for new works. The retired licenses include all licenses lacking the Attribution element other than CC0, as well as the following four licenses:

• Developing Nations License: a license which only applies to developing countries deemed to be "non-high-income economies" by the World Bank. Full copyright restrictions apply to people in other countries.
• Sampling: parts of the work can be used for any purpose other than advertising, but the whole work cannot be copied or modified
• Sampling Plus: parts of the work can be copied and modified for any purpose other than advertising, and the entire work can be copied for noncommercial purposes
• NonCommercial Sampling Plus: the whole work or parts of the work can be copied and modified for non-commercial purposes

Version 4.0

The latest version 4.0 of the Creative Commons licenses, released on November 25, 2013, are generic licenses that are applicable to most jurisdictions and do not usually require ports. No new ports have been implemented in version 4.0 of the license. Version 4.0 discourages using ported versions and instead acts as a single global license. Additionally, there is a thirty-day grace period to correct the breach of the licensing terms by the licensee and have their rights reinstated. Prior to 4.0 the licensee would lose their rights after breaking the license's terms. This does not impact the ability for licensors to seek remedies.

Rights and obligations

Attribution

Since 2004, all current licenses other than the CC0 and CC-PD variant require attribution of the original author, as signified by the BY component (as in the preposition "by"). The attribution must be given to "the best of [one's] ability using the information available". Creative Commons suggests the mnemonic "TASL": title – author – source [web link] – [CC] licence. Generally this implies the following:

• Include any copyright notices (if applicable). If the work itself contains any copyright notices placed there by the copyright holder, those notices must be left intact, or reproduced in a way that is reasonable to the medium in which the work is being re-published.
• Cite the author's name, screen name, or user ID, etc. If the work is being published on the Internet, it is nice to link that name to the person's profile page, if such a page exists.
• Cite the work's title or name (if applicable), if such a thing exists. If the work is being published on the Internet, it is nice to link the name or title directly to the original work.
• Cite the specific CC license the work is under. If the work is being published on the Internet, it is nice if the license citation links to the license on the CC website.
• Mention if the work is a derivative work or adaptation. In addition to the above, one needs to identify that their work is a derivative work, e.g., "This is a Finnish translation of [original work] by [author]." or "Screenplay based on [original work] by [author]."

Non-commercial licenses

Main article: Creative Commons NonCommercial license

The NonCommercial license allows image creators to restrict selling and profiting from their works by other parties and thus maintaining free of charge access to images.

The "non-commercial" option included in some Creative Commons licenses is controversial in definition, as it is sometimes unclear what can be considered a non-commercial setting, and application, since its restrictions differ from the principles of open content promoted by other permissive licenses. In 2014 Wikimedia Deutschland published a guide to using Creative Commons licenses as wiki pages for translations and as PDF.

Adaptability

Rights in an adaptation can be expressed by a CC license that is compatible with the status or licensing of the original work or works on which the adaptation is based.

Legal aspects

The legal implications of large numbers of works having Creative Commons licensing are difficult to predict, and there is speculation that media creators often lack insight to be able to choose the license which best meets their intent in applying it.

Some works licensed using Creative Commons licenses have been involved in several court cases. Creative Commons itself was not a party to any of these cases; they only involved licensors or licensees of Creative Commons licenses. When the cases went as far as decisions by judges (that is, they were not dismissed for lack of jurisdiction or were not settled privately out of court), they have all validated the legal robustness of Creative Commons public licenses.

Dutch tabloid

In early 2006, podcaster Adam Curry sued a Dutch tabloid who published photos from Curry's Flickr page without Curry's permission. The photos were licensed under the Creative Commons Non-Commercial license. While the verdict was in favor of Curry, the tabloid avoided having to pay restitution to him as long as they did not repeat the offense. Professor Bernt Hugenholtz, main creator of the Dutch CC license and director of the Institute for Information Law of the University of Amsterdam, commented, "The Dutch Court's decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and binds users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."

Virgin Mobile

In 2007, Virgin Mobile Australia launched an advertising campaign promoting their cellphone text messaging service using the work of amateur photographers who uploaded their work to Flickr using a Creative Commons-BY (Attribution) license. Users licensing their images this way freed their work for use by any other entity, as long as the original creator was attributed credit, without any other compensation required. Virgin upheld this single restriction by printing a URL leading to the photographer's Flickr page on each of their ads. However, one picture, depicting 15-year-old Alison Chang at a fund-raising carwash for her church, caused some controversy when she sued Virgin Mobile. The photo was taken by Alison's church youth counselor, Justin Ho-Wee Wong, who uploaded the image to Flickr under the Creative Commons license. In 2008, the case (concerning personality rights rather than copyright as such) was thrown out of a Texas court for lack of jurisdiction.

''SGAE vs Fernández''

In the fall of 2006, the collecting society (SGAE) in Spain sued Ricardo Andrés Utrera Fernández, owner of a disco bar located in Badajoz who played CC-licensed music. SGAE argued that Fernández should pay royalties for public performance of the music between November 2002 and August 2005. The Lower Court rejected the collecting society's claims because the owner of the bar proved that the music he was using was not managed by the society.

In February 2006, the Cultural Association Ladinamo (based in Madrid, and represented by Javier de la Cueva) was granted the use of copyleft music in their public activities. The sentence said:

''GateHouse Media, Inc. v. That's Great News, LLC''

On June 30, 2010, GateHouse Media filed a lawsuit against That is Great News, LLC. GateHouse Media owns a number of local newspapers, including Rockford Register Star, which is based in Rockford, Illinois. That is Great News makes plaques out of newspaper articles and sells them to the people featured in the articles. GateHouse sued That is Great News for copyright infringement and breach of contract. GateHouse claimed that That is Great News violated the non-commercial and no-derivative works restrictions on GateHouse Creative Commons licensed work when they published the material on their website. The case was settled on August 17, 2010, though the terms of the settlement were not made public.

''Drauglis v. Kappa Map Group, LLC''

In 2007, photographer Art Drauglis uploaded several pictures to the photo-sharing website Flickr, giving them the Creative Commons Attribution-ShareAlike 2.0 Generic License (CC BY-SA). One photo, titled "Swain's Lock, Montgomery Co., MD.", was downloaded by Kappa Map Group, a map-making company, and published in 2012 on the front cover of Montgomery Co. Maryland Street Atlas. The text "Photo: Swain's Lock, Montgomery Co., MD Photographer: Carly Lesser & Art Drauglis, Creative Commoms , CC-BY-SA-2.0" was placed on the back cover, but nothing on the front indicated authorship.

The validity of CC BY-SA 2.0 as a license was not in dispute. CC BY-SA 2.0 requires that the licensee use nothing less restrictive than the CC BY-SA 2.0 terms. The atlas was sold commercially and not for free reuse by others. The dispute was whether Drauglis' license terms that would apply to "derivative works" applied to the entire atlas. Drauglis sued the defendants in June 2014 for copyright infringement and license breach, seeking declaratory and injunctive relief, damages, fees, and costs. Drauglis asserted, among other things, that Kappa Map Group "exceeded the scope of the License because defendant did not publish the Atlas under a license with the same or similar terms as those under which the Photograph was originally licensed." The judge dismissed the case on that count, ruling that the atlas was not a derivative work of the photograph in the sense of the license, but rather a collective work. Since the atlas was not a derivative work of the photograph, Kappa Map Group did not need to license the entire atlas under the CC BY-SA 2.0 license. The judge also determined that the work had been properly attributed.

In particular, the judge determined that it was sufficient to credit the author of the photo as prominently as authors of similar authorship (such as the authors of individual maps contained in the book) and that the name "CC-BY-SA-2.0" is sufficiently precise to locate the correct license on the internet and can be considered a valid identifier for the license.

''Verband zum Schutz geistigen Eigentums im Internet'' (VGSE)

In July 2016, German computer magazine LinuxUser reported that a German blogger, Christoph Langner, used two CC BY-licensed photographs from Berlin photographer Dennis Skley on his private blog Linuxundich. Langner duly mentioned the author and the license and added a link to the original. Langner was later contacted by the Verband zum Schutz geistigen Eigentums im Internet (VGSE) (Association for the Protection of Intellectual Property in the Internet) with a demand for €2300 for failing to provide the full name of the work, the full name of the author, the license text, and a source link, as is required by the fine print in the license. Of this sum, €40 was to go to the photographer, with the remainder retained by VGSE. The Higher Regional Court of Cologne dismissed the claim in May 2019.

Works with a Creative Commons license

Main article: List of major Creative Commons licensed works

Creative Commons maintains a content directory wiki of organizations and projects using Creative Commons licenses. On its website CC also provides case studies of projects using CC licenses across the world. CC licensed content can also be accessed through a number of content directories and search engines.

Unicode symbols

After being proposed by Creative Commons in 2017, Creative Commons license symbols were added to Unicode with version 13.0 in 2020. The circle with an equal sign (meaning no derivatives) is present in older versions of Unicode, unlike all the other symbols.

These symbols can be used in succession to indicate a particular Creative Commons license, for example, CC-BY-SA (CC-Attribution-ShareAlike) can be expressed with Unicode symbols CIRCLED CC, CIRCLED HUMAN FIGURE and CIRCLED ANTICLOCKWISE ARROW placed next to each other: 🅭🅯🄎

Case law database

In December2020, the Creative Commons organization launched an online database covering licensing case law and legal scholarship.

Notes

References

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