CC licenses function within copyright (the “all rights reserved” approach), yet they differ by employing a “some rights reserved” approach. By default, all CC licenses grant the public permission to use the works. The licenses provide for additional conditions, but remain in place for as long as the underlying copyright lasts or until a reuser violates the license terms. It is fundamental to clarify that CC licenses work on top of copyright, not instead of copyright.
Welcome to what has now become a very exciting #CreativeCommons (CC) series.
Let’s Refresh on the basics
CC licenses give creators (or licensors) a clear and standard way to grant users (or licensees) permission to use creative work. Essentially, you are trying to tell a potential reuser of your creative work what they can freely and legally do (or not do). Remember, even with CC licenses, authors and creators retain their copyright and are recognized (or get credit) for their work. These common features serve as the baseline, on top of which licensors can choose to grant additional permissions when deciding how they want their work to be used. In this post, I delve into the exact structure and anatomy of the CC licenses.
CC licenses are built using a three layer design. See this detailed description:
- The legal code is the base layer. This contains the “lawyer-readable” terms and conditions that are legally enforceable in court.
- The second layer are the human-readable commons deeds. These are regular web pages that lay out the key license terms in plain language. so-called “human-readable” terms. The deeds are not legally enforceable but instead summarize the legal code. Here is one example and another.
- The final layer is a machine readable version of the license. This is important because software plays a critical role in the creation, copying, discovery, and distribution of creative works on the internet. To make it easy for websites and web services to know when a work is available under a CC license, it makes sense to show them how. Read about the CC Rights Expression Language (CC REL) to learn how this is accomplished.
So then, how do you build a CC License?
As an intending licensor, one will make a few simple decisions to help determine what kind of license to choose – first, do I want to allow commercial use, and second, do I want to allow derivative works (also known as adaptations)? If a licensor decides to allow derivative works, then they may also choose to require that anyone who uses the work makes their new work available under the same license terms – this is called “ShareAlike”. So in summary, we have: Attribution; Commercial use; Derivatives and the ability to Share Alike.
These different license elements are symbolized by visual icons.
When combined, these icons represent the six CC license options. Now that you understand how to “speak CC” and know some of the fundamentals about CC license design, you are well on your way to becoming versed in CC licensing.
To really understand how the different license options work, let’s dig into some of the nuanced differences.
Commercial vs. noncommercial use – NonCommercial (“NC”) – CC’s definition of NC depends on the use, not the user. In the legal code, a noncommercial purpose is defined as one that is “not primarily intended for or directed towards commercial advantage or monetary compensation.” This condition is in 3 licenses: BY-NC, BY-NC-SA, and BY-NC-ND. If you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term.
Adaptations – What constitutes an adaptation of a licensed work depends on applicable copyright law. One of the exclusive rights granted to creators under copyright is the right to create adaptations of their works or, as they are called in some places, derivative works. (For example, creating a movie based on a book, or translating a book from one language to another.) The issue here is whether, and on what terms, reusers can adapt and then share the licensed work.
As a legal matter, at times it is tricky to determine exactly what is and is not an adaptation. Here are some examples:
- Technical format-shifting (for example, converting a licensed work from a digital format to a physical copy) is not an adaptation regardless of what applicable copyright law may otherwise provide.
- Fixing minor problems with spelling or punctuation is not an adaptation.
- Syncing a musical work with a moving image is an adaptation regardless of what applicable copyright law may otherwise provide.
- Reproducing and putting works together into a collection (e.g combining stand-alone essays by several authors into an essay collection ) is not an adaptation of the individual works.
- Including an image in connection with text, as in a blog post, a powerpoint, or an article, does not create an adaptation unless the photo itself is adapted.
NoDerivatives – Two of the licenses (BY-ND and BY-NC-ND) prohibit reusers from sharing (i.e. distributing or making available) adaptations of the licensed work. To be clear, this means anyone may create adaptations of works under an ND license so long as they do not share the work with others in adapted form. This condition, in present day, allows among other things, organizations to engage in text and data mining without violating the ND term.
ShareAlike – Two of the licenses (BY-SA and BY-NC-SA) require that if adaptations of the licensed work are shared, they must be made available under the same or a compatible license. For ShareAlike purposes, here is the list of compatible licenses.
Public domain – CC also has two public domain tools represented by the icons below. These public domain tools are not licenses:
CC0 enables creators to dedicate their works to the worldwide public domain to the greatest extent possible. Note that some jurisdictions do not allow creators to dedicate their works to the public domain, so CC0 has other legal mechanisms included to help deal with this situation where it applies. Like the licenses, CC0 is a copyright tool, but it also covers a few additional rights beyond those covered by the CC licenses.
The Public Domain Mark is a label used to mark works known to be free of all copyright restrictions. Unlike CC0, the Public Domain Mark is not a legal tool and has no legal effect when applied to a work. It serves only as a label to inform the public about the public domain status of a work and is often used by museums and archives working with very old works.
The 6 CC Licenses
There is no single Creative Commons license. The CC license suite and the CC0 public domain dedication offer creators/licensers a range of options. In total, the four license elements—BY, SA, NC, and ND—combine to make up six different license options.
The six licenses, from least to most restrictive in terms of the freedoms granted to reusers, are:
The Attribution license or “CC BY” allows people to use the work for any purpose (even commercially and even in modified form) as long as they give attribution to the creator.
The Attribution-ShareAlike license or “BY-SA” allows people to use the work for any purpose (even commercially and even in modified form), as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license. This is CC’s version of a copyleft license, and is the license required for content uploaded to Wikipedia, for example.
The Attribution-NonCommercial license or “BY-NC” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator.
The Attribution-NonCommercial-ShareAlike license or “BY-NC-SA” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license.
The Attribution-NoDerivatives license or “BY-ND” allows people to use the unadapted work for any purpose (even commercially), as long as they give attribution to the creator.
The Attribution-NonCommercial-NoDerivatives license or “BY-NC-ND” is the most restrictive license offered by CC. It allows people to use the un-adapted work for noncommercial purposes only, and only as long as they give attribution to the licensor.
Important Discussion: CC Licenses are Copyright Licenses
The statement that “Creative Commons licenses are copyright licenses” tells you the following about the licenses:
- the licenses “operate” or apply only when the work is within the scope of copyright law (or other related law) and the restrictions of copyright law apply to the intended use of the work (this is discussed in more detail below),
- certain other rights, such as patents, trademarks, privacy and publicity rights, are not covered by the licenses and must be managed separately.
➡ Let’s start by unpacking what it means for the license to apply where copyright applies.
CC licenses are appropriate for creators who want to give people one or more of the permissions governed by copyright law. For example, if you want to give others permissions to freely copy and redistribute your work, or to freely transform, alter, or otherwise create adaptations (or derivative works) based on your work. However, you don’t need to use a CC license to give someone permission to read your article or watch your video, because reading and watching are not covered by copyright. You can apply a CC license to anything protected by copyright that you own, with one important exception. CC urges creators not to apply CC licenses to software because there are many free and open source software licenses that do that job better. Most already include provisions about distributing a software’s source code, which is not explicitly addressed by CC licenses. The software sharing ecosystem is well-established, and there are many good open source software licenses to choose from.
Here are two important scenarios in which copyright does not apply:
- When fair use, fair dealing, or some other limitation and exception to copyright applies.
- When the work is in the public domain.
Because creatives know (or may not know) that copyright is not blanket in all countries, they might be trying to exert control they do not actually have by law. Other times, they simply do not know that copyright does not apply to a work is in the public domain. Or, for the savvy licensor, they may realize their work is in the public domain in some countries but not public domain everywhere, and they want to be sure everyone everywhere is able to reuse it. A great example is in the new emergent field of 3D printing.
➡The other critical part of the statement “CC licenses are copyright licenses” is that there may be other rights in the works upon which the license has no effect.
CC licenses do not have any effect on rights beyond copyright such as Privacy or Similar Rights as defined in the licenses, so other such rights have to be managed separately. A work may incorporate the copyrighted work of another, such as a scholarly article that uses a copyrighted photograph to illustrate an idea (after having received the permission of the owner of the photograph to include it). The CC license applied by the author of the scholarly article does not apply to the photograph, only the remainder of the work. Separate permission may need to be obtained in order to reproduce the photograph (not the remainder of the article). Consider also that a CC license on a given work only covers the copyright held by the person who applied the license —the licensor. That might sound obvious, but its application can quite differ – for example, many employers own the copyright to works created by employees, so as an employee, if one applies a CC license to a work owned by their employer, one may not have the cover provided by the CC license.
Also, works often have more than one copyright attached to them. For example, a filmmaker may own the copyright to a film adaptation of a book, but the book author also holds a copyright to the book on which the film is based. In this example, if the film is CC-licensed, the CC license only applies to the film and not the book.
Read the FAQ about this issue here.
Let’s Wrap Here
While not required, CC (the organization) urges creators to make sure there are no other rights that may prevent reuse of the work as intended. CC licensors do not make any warranties about reuse of the work. That means that unless the licensor is offering a separate warranty. There is a duty and responsibility to you, an intending reuser of an original work, to determine whether other rights may impact how you plan to reuse of the work. Sometimes reaching out to the licensor (who may or may not be the creator) inquire about these possible other rights is sufficient.
One other subtle but important difference about the scope of CC licenses is that they also cover other rights closely related to copyright. Defined as “Similar Rights” in the CC license legal code, these include related and neighboring rights and sui generis database rights, which are rights in some countries restricting the extraction and reuse of the contents of a database. Just as with copyright, the CC license conditions only come into play when Similar Rights otherwise apply to the work and to the particular reuse made by someone using the CC licensed work.
I hope that this post increases your knowledge of CC licenses, and how they are designed.
This entry was posted in Human Rights, Intellectual Property Rights, MeThinking, Work and tagged Attribution, CC, CC-BY, CC-BY-NC, CC-BY-NC-ND, CC-BY-NC-SA, CC-BY-ND, CC-BY-SA, CC0, Copyleft, Copyright, Creative Commons, Derivatives, Legal, Non-Commercial, Public Domain, Share Alike.