Friday, January 14, 2011

There Is No Creative Commons License

Today's columnist is Jordan Hatcher from the Open Knowledge Foundation. He writes:

People often talk about using “the Creative Commons license” or suggest that a business or government body “uses Creative Commons” for their licensing. The problem: there isn't one Creative Commons license. Creative Commons (CC) isn't a single license but rather is a collection of them.

There are a set of six main CC licenses, plus other legal tools such as CC0 and the Public Domain Mark. CC also has its own version of the BSD license, and several deprecated licenses, such as the Developing Nations license. Creative Commons therefore doesn't make "a license." Some of these licenses are open, some aren't. In my opinion, they are generally inappropriate for software and are also inappropriate for databases, for most users. For the most part, CC offers content licenses.

Here, I want to focus on the six main CC licenses because they're the most popular. The six main CC licenses consist of combinations of four license elements:

  1. BY – Attribution (giving credit)

  2. NC – Non-commercial (banning commercial use)

  3. SA – Share Alike (copyleft/reciprocal licensing)

  4. ND – No-derivatives (restricting remix of the work)

CC doesn't offer these main licenses without attribution, so the set of six looks like:

  1. Attribution (BY) (OPEN)

  2. Attribution | No Derivatives (BY-ND)

  3. Attribution | Non-Commercial | No Derivatives (BY-NC-ND)

  4. Attribution | Non-Commercial (BY-NC)

  5. Attribution | Non-Commercial | Share Alike (BY-NC-SA)

  6. Attribution | Share Alike (BY-SA) (OPEN)

Two of the above license elements don't meet the Open Knowledge Foundation's open definition because they restrict the field of use – the non-commercial (NC) element – and the ability to reuse and create derivative works – the no derivatives (ND) element. As a result, only two of the six main CC licenses can be classified as open licenses: CC-BY and CC-BY-SA.

So let's say you've decided which of the six licenses best fits your needs as a creator. The license variation doesn't end with that initial choice. Even within the six main licenses, there are many variations of each, though each still accomplishes the core goal of that license type. Public licenses, such as those published by Creative Commons, get upgraded as the law changes or as bugs in the license text are fixed, and each of the six licenses has been through multiple versions. All past versions remain active for people who licensed their work under those versions, though of course new licensors should choose the most current version. So the six licenses change through time, with past versions still potentially active. Licensors should always consider how they will upgrade their CC content when new license versions come out as part of their adoption plan.

In addition to versioning, these six licenses also get "ported" to the national law of many different jurisdictions. Intellectual property law is generally national in nature, but the Internet is global. Canada, France, Germany, Scotland, England & Wales, USA, Mexico, and so on all have their own adapted version of these six licenses. Currently CC has projects around their licenses in more than 70 separate jurisdictions. Also, CC offers an “unported” license for uses that aren't specific to any one jurisdiction. So, when discussing CC licenses, be aware that CC has multiple jurisdictional variations across both the six main license types and version types – a CC-BY Scotland and a CC-BY Canada for example.

Broadly, each license type does what it says: a CC-BY license should only require attribution, regardless of whether it's a Scottish 2.5 version of the CC-BY license or the latest unported 3.0 version. However, the process of adapting a CC license for a particular nation goes beyond language localization; the licenses get mapped onto national IP laws, and so there can exist important legal differences. For instance, the European Union CC licenses may be silent on areas such as the EU's sui generis Database Right or may explicitly waive the Database Right (depending on the jurisdiction and version), or there may even be a choice of law and jurisdiction clause, such as the Scottish CC licenses.

So when licensing and discussing CC licenses, make sure you're specific as to what you want and what you mean: It can have an important impact on the end result.

No comments: