Cyberlaw

 

What is and what is not the Creative Commons licensing system

1. Creative Commons do not include un-protectable works or works included in the public domain.

When you’re considering one of the Creative Commons’ licenses for the distribution of your work, you must first check the flexibility offered by this licensing system. This flexibility must not be confused with the complete lack of any form of protection, so keep in mind one important thing – your work will still be protected by copyright law.

It is very clearly stated in the Creative Commons’ Terms and Conditions that the work will still preserve all the copyright features:

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE („CCPL” OR „LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

And, if you are wondering what the reason behind this strong emphasis on copyrightability would be, you probably don’t know that most people make great confusion when asserting Creative Commons, mostly because they are only taking into consideration the short version of the license, which gives no explicit terms or details on this aspect. This is why we are used to perceive things like: “Creative Commons means no copyright”, or “Creative Commons means no rules”, both of them being far from the truth.

Creative Commons is actually based on copyright law, so, there is no time for fears about this being a territory without any control; if you choose one of the Creative Commons licenses, you will still have the ability to control the way the work is used and, if infringing circumstances arise, you will still have legal grounds before any court, because it will be a matter of contract law since every Creative Commons license is in fact an agreement between the licensor and the licensee, namely the person who uses that work.

2. Using a work with Creative Commons license doesn’t necessarily restrict you from selling that work

The title could be also: “pay attention to the specific terms, because Creative Commons license types are different.” When you choose a work licensed under CC terms, don’t assume that you will be limited on making profit out of it. Some specific CC licenses do allow commercial use, and this is the case of CC-BY-SA-2.0..

As you can see, the license doesn’t prohibit commercial use, being even specified that you could:

remix, transform, and build upon the material for any purpose, even commercially.

If the commercial use is being allowed by CC-BY-SA-2.0, don’t assume that the other type of license will function the same way. CC BY- NC for example, doesn’t admit commercial uses.

3. Choosing Creative Commons is irreversible

Once you choose any type of Creative Commons licenses, it’s automatically applied to all the uses exercised upon your work. The only possibility to change this is “to enable the all rights reserved button” but, for the entire period until that specific moment, your work will be considered licensed only under the terms and conditions of the Creative Commons system.

There is a recent decision between Kappa Map and Dragulis, and it’s important to note because this litigation is practically based on an obvious misunderstanding of what Creative Commons’ terms really are and how the license will apply. In short, Dragulis is a photographer who licensed one of his photos by choosing the BY-SA-2.0 terms and conditions. Dragulis asserted copyright infringement against Kappa by stating that this company uses his photography in a commercial manner, despite the fact that Dragulis chose the BY-SA license for his work, which allows any type of commercial use.

“Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.”

As a conclusion, when you select Creative Commons for your work to be licensed under, be sure that this license applies to it and you cannot change or undo this because any person who will seek to make use of the work, will be bound by those specific terms and conditions, and if those terms do not prohibit commercial use, as is the case of the BY-SA license, commercial use is practically accepted and there is no infringement.

4. Share-alike obligation applies only to derivatives, not to any type of use

This is another common misunderstanding; the general belief is that when you are using works that are licensed under CC terms you must share them under the same license. Nothing is farther from the truth. Pay attention, please, to the exact wording of the ShareAlike condition:

“If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.”

As the text shows, the obligation of distribution under the same terms will only function for those uses that materialize in derivatives, since the text expressly indicates “remixing”, “transforming” or “building upon” the material, as specific types of uses. This is another very important aspect because, as it was argued in the case of Dragulis vs Kappa Map,

“the judge determines that simply reprinting the photo as the cover illustration of a map book does not create a derivative work.  Instead, she considers the atlas to be a compilation, which is treated quite differently in our copyright law”

So, if the use is a simple reproduction, without adding any new elements, without extracting or modifying the work in any way, it seems that you will not be bound by the ShareAlike obligation, since the decision mentioned above interpreted that the ShareAlike will be applied only to derivatives.

Of course, the terms “building upon” could be interpreted in different ways, and one might say that “building upon” does not involve a real or more precisely a traditional transformation of a work, but in fact a form of reproduction, since the syntagma is presented as being something different from what a “remix” or a “transformation” might be and this may not be the only reason. The phrase “building upon” has no definition in copyright law, but its meaning is closer to “create” and a long way off “transform”. Of course that any creation could accept various forms of assembling also, and we could go on with this forever.

But, as many have said, these are aspects that will definitely be considered in future cases involving CC terms, which are expected to become more frequent.

Creative_commons

Monica Lupașcu Romanian Lawyer since 2005 with LL.M. in Intellectual Property Law. She currently activates as European Trademark Attorney and internet and technology legal practitioner.   monica.lupascu@nullcyberlaw.ro

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