4.3 Creative Commons Licenses

   

The Creative Commons series of licenses are the product of the Creative Commons Corporation, a not-for-profit organization founded in 2001 and currently based at Stanford University Law School. In December, 2002, inspired by the GPL, the Creative Commons Corporation issued a series of licenses designed to encourage creators of works to make their work available for public use. While not written for use in connection with software, the Creative Commons Licenses provide a solid basis for licensing the "open source" use of other expressions, including texts, music, web sites, and film. One of their licenses is described here to reflect that the ideas behind open source and free software licensing are applicable to more than just software. Additionally, the Creative Commons Licenses are solidly constructed and well-written: as such, they provide a good model for those who are considering drafting their own open source licenses.

In addition to the licenses, the Creative Commons Corporation provides two other services worth noting, at least briefly. First, Creative Commons offers a "Public Domain Dedication," a sort of ultra-permissive license that denotes the creator's surrender of all rights under copyright.[6] As noted in connection with the Artistic License, the dedication of a work to the public domain is a simple and straightforward way to permit unrestricted use of a work. Second, Creative Commons offers the "Founder's Copyright," a contractual undertaking between the creator and Creative Commons that mimics the effect of the original copyright laws: copyright is granted for 14 years and is renewable for one additional 14-year period.

[6] There is some question as to whether the Creative Commons Public Domain Dedication is legally effective as a contract because there is no exchange of consideration. The importance of mutual consideration is discussed in more detail in Chapter 6. Although the Public Domain Dedication may not be of binding legal effect as a license, there may be other legal methods by which it could be enforced, including the theory of reliance. Before making a Public Domain Dedication, a creator of a work may want to consider using instead a relatively unrestrictive license such as the BSD or MIT licenses described in Chapter 2. In any event, before relying on a work falling within the scope of such a dedication, a user should contact a knowledgeable lawyer to address its enforceability in the particular circumstances presented.

All the Creative Commons Licenses permit the free copying and distribution of the licensed work. Some variations also permit the distribution of derivative works, some on terms that require the creator of the derivative work to license that work under the same license, in the same manner as the GPL. The full variety of Creative Commons Licenses are available at creativecommons.org. The one described here is the "Attribution-ShareAlike" license that permits free distribution of the original work and creation and distribution of derivative works subject to the limitation that such works themselves be subject to the terms of the Creative Commons License. The license also requires that distributions of both original and derivative works contain attributions crediting the original author of the work. This license does not distinguish between commercial and non-commercial uses of a work: one of the more common limitations in Creative Commons Licenses is a bar on commercial use of works and derivative works. By contrast to the other licenses described in this book, this Creative Commons License governs the use of a written text, not a software program.

Creative Commons released a new set of licenses on May 25, 2004. A description of the revised license follows the discussion of the original license.


Paired with each Creative Commons License is the so-called "Commons Deed," a document which expresses in short form the privileges granted and restrictions imposed by the license. The Commons Deed for the Attribution-ShareAlike License, Version 1.0, is shown in Figure 4-1.

Figure 4-1. The Commons Deed for the Attribution-ShareAlike License, Version 1.0
figs/osfs_0401.gif


The license begins with a disclaimer of warranties by Creative Commons itself as the provider of the license.

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS DRAFT LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

This warranty disclaims any liability for use of the license and disclaims any implication that an attorney-client relationship has been created by the license.

The license proper begins with an introduction that states that by exercising any rights under the license, the user accepts the terms of the license, a provision modeled on the substantially similar provision in the GPL.

License

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 IS PROHIBITED.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

As discussed in Chapter 6, the absence of a signed agreement between the licensor and licensee may not bar the creation of an enforceable contract. Moreover, as noted in connection with the discussion of the GPL license, a user has no real interest in asserting that a license is unenforceable. After all, without the privileges granted by the license, the user has no right to use the work except in the very limited manner permitted by fair use.

Like the QPL, the MPL, and the Artistic License, the Creative Commons License begins with a list of definitions.

1. Definitions

a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

The license explicitly permits distributions of the licensed work both on its own and as part of a collective work. This provision has a similar effect to the "mere aggregation" language of the GPL, although it is somewhat more explicit.[7]

[7] Section 2(c) of the GPL reads, in part, "mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License."

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License.

Unlike a Collective Work, a Derivative Work must be distributed only under the same terms that apply to the original work.

c. "Licensor" means the individual or entity that offers the Work under the terms of this License.

d. "Original Author" means the individual or entity who created the Work.

As noted in Chapter 1, while the author or creator of a work is the person in whom copyright initially vests (except in the case of work for hire), the person enjoying rights under copyright frequently will not be the same person who originally created the work because of contractual assignment or otherwise. This license distinguishes between the original author and the holder of the copyright, and it gives rights to the Original Author.

e. "Work" means the copyrightable work of authorship offered under the terms of this License.

This term is self-explanatory.

f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

As provided by Section 7, the license terminates upon breach of any provision by the licensee.

The next section reiterates what is already the case: that the license does not prohibit or limit any rights that could be exercised under the doctrine of fair use or first sale doctrines.[8]

[8] The first sale doctrine guarantees certain rights to purchasers of physical expressions of copyrighted work, including the right to loan that copy to others, to resell it, and to make personal use of it.

2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

Section 3 of the license provides the critical operating language of the license.

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;

This permits free distribution of the original work, whether as part of a Collective Work or otherwise.

b. to create and reproduce Derivative Works;

The creation and distribution of derivative works is subject to the important limitation, as described in Section 4(b), that such derivative works must be distributed under the same license that governs the distribution of the original work, which is this Creative Commons License.

c. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;

The rights to perform a given work are generally governed separate and apart from the rights to copy and distribute a work. For example, the purchase of a hardcopy of the text of a play does not convey the right to publicly perform that play. This subsection includes the grant of such performance rights in the scope of the license.

d. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works;

This provision conveys performance rights for derivative works.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

This grants rights to use or distribute the work in all media, including those not yet invented.

The next section identifies the restrictions applicable to exercise rights under the license.

4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

a. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform.

Like the other licenses already described, this provision requires that the terms of the license be provided along with the licensed work. As an alternative, however, this license also provides that the distributor may include a "Uniform Resource Identifier," a URL that points to the text of the license.

You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties.

Like the GPL, the Creative Commons License bars the inclusion of any condition that "alters or restricts" the terms of the license. Accordingly, work licensed under the Creative Commons cannot include work licensed under other licenses that impose any restrictions, such as the GPL or the MPL License already discussed.

You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.

This prohibits any distributor from distributing the work in a manner intended to prevent copying such distributions frustrate the purpose of the license. This could prevent, for example, distribution of the work or derivative in some electronic book formats that contain copy protection, or in CD or DVD formats that are designed to frustrate digital copying.

The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License.

This reiterates the exclusion from the effect of the license on other works contained in a Collective Work.

If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

This right permits a Licensor to disassociate either herself and/or the Original Author from association with a Collective Work or a Derivative Work, if so desired. Note that the right belongs to the Licensor, not the Original Author. A subsequent restriction requires attribution to be given to the Licensor of the Original Work, unless the Licensor notifies the Licensee of a contrary desire.

Section 4(b) imposes the same restrictions on the distribution or performance of Derivative Works that Section 4(a) imposes on the Original Work. Moreover, by imposing these obligations on all potential creators of Derivative Works, the license requires that Derivative Works be distributed only under the terms of this license, with all the grants of rights and restrictions that this entails. This generational limitation is substantially similar to the copyleft imposed by the GPL.

b. You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of each Derivative Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

The "right of disassociation" described in Section 4(b) already includes the right to disassociate from Derivative Works as well as Original Works.

Section 4(c) contains a requirement of attribution that distinguishes this license from other Creative Commons Licenses. In both the original and Derivative Works, the Original Author of the work (not necessarily the Licensor) must be given credit appropriate to the format of the distribution, unless, under Section 4(b), the Licensor requests otherwise.

c. If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

Section 5 contains the representations and warranties provisions applicable to the license. Unlike every other license examined so far, the Creative Commons License contains a warranty of non-infringement, albeit one limited by the representation that the original Licensor has undertaken only "reasonable inquiry" to ensure that the Work does not contain infringing material or anything that could be considered defamatory or damaging to the privacy rights of any person.

5. Representations, Warranties and Disclaimer

a. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

i. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.

The obligation imposed by this provision is substantial. No potential Licensor should use this version of the Creative Commons license without seriously considering the obligations imposed by this section. If the work to be licensed is entirely the creation of the Licensor, and the Licensor can fairly satisfy himself that he did not infringe on other copyrights and that the work is not defamatory or otherwise injurious to third parties, then this provision may provide no difficulty. In the case of an aesthetic work (a play, short story, or poem), that would be a sufficient inquiry and the Licensor could proceed to use the Creative Commons License with confidence. In the case of software or a similar work, however, because of the vague and potentially broad application of software patent rights, no Licensor without exhaustive review and consultation with an experienced attorney could possibly feel confident that a particular piece of code does not infringe on any valid patent. Accordingly, the inclusion of such representations in licenses applicable to software is not recommended. While the Licensor need only to undertake "reasonable inquiry" to ensure that the work is non-infringing, the licensor is still making an affirmative representation upon which others may reasonably rely. Version 2.0 of the Creative Commons License does not contain these representations and is almost certainly a better license to use under such circumstances.

Moreover, this representation presents substantial hazards for the licensing of any work under this license if that work includes anything created by another person, including work putatively in the public domain. In the event such work turns out to infringe on the copyright of any third party, the Licensor would be liable not only to that third party whose rights have been infringed (as is the case with every open source and free software license, regardless of the language of that license) but to all the licensees. This could result in the Licensor becoming responsible for a potentially enormous amount of damages for example, if a licensee relied on the rights granted under the license in entering into a business opportunity, which it can no longer pursue after discovery of the violation.

In sum, in making contractual representations, one must exercise significant caution. Given the potential exposure to liability, Licensors should approach this section with care.

Section 5(b) contains a standard disclaimer of warranties, excepting only the warranty of non-infringement just discussed.

b. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR ACCURACY OF THE WORK.

Section 6 contains the disclaimer of liability, again, subject to the exception for the warranty of non-infringement.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 5, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 7 governs termination of the license, which essentially occurs upon any breach by the licensee. As is the case with the GPL, the breach by one licensee does not result in the termination of the license to those persons to whom the licensee has distributed the Original Work, a Derivative Work, or a Collective Work, so long as those licensees themselves remain in compliance with the license.

7. Termination

a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

Section 7(b) explicates what is implicit in every license, which is that the licensor can license the work to others under different terms than those contained in the license.

b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

This ability to "cross-license" or "relicense" the work does not affect any license previously granted, and this provision should be of little comfort to potential licensors with cold feet.

Section 8, appropriately labeled Miscellaneous, contains a number of provisions that are redundant of provisions already discussed or irrelevant in all but a very small number of possible scenarios involving the license.

8. Miscellaneous

a. Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

b. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.

This is entirely redundant to Section 3. Any "You" under the license is someone with access both to the Work (or a Derivative or Collective Work) and the license itself i.e., everyone who would fall into the descriptions Section 8(a) and (b).

Section 8(c) is a savings clause typical in commercial contracts.

c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.

Section 8(d), in phrasing again typical of commercial contracts, prevents oral modifications to the license and requires any waivers or amendments to be written.

e. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

Finally, Section 8(e) provides a "merger clause" indicating that the license is the entire agreement between the parties, superseding any prior agreement, whether oral or written.

e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Following the last of the license's sections is another set of disclaimers and limitations by Creative Commons itself, restating and expanding the restrictions announced at the beginning of the license.

Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.

Except for the limited purpose of indicating to the public that the Work is licensed under the CCPL, neither party will use the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons' then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.

Creative Commons may be contacted at http://creativecommons.org/.

Creative Commons issued a new series of licenses on May 25, 2004. The Attribution-ShareAlike Version 2.0 is described here and shown in Figure 4-2. Because most of the license remains unchanged, the subsequent commentary only addresses the new features of the license. For purposes of completeness, however, the license is provided in its entirety. The first change to the license is one that arises under the choose-your-own-license menu on the Creative Commons web site. Because the overwhelming preference among its users for licenses is to require attribution, attribution of the work to its original author is now a standard feature of the license.

Figure 4-2. The Commons Deed for the Attribution-ShareAlike License, Version 2.0
figs/osfs_0402.gif


CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

License

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.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

1. Definitions

a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.

In order to use music in combination with a moving image under United States copyright law, the user must generally arrange to acquire "synchronization rights" from the author of the musical work and to pay synchronization royalties for such use. The last sentence of this definition, not present in Version 1.0 of the license, makes clear that such a use of the licensed work is included in the rights granted by the license.

c. "Licensor" means the individual or entity that offers the Work under the terms of this License.

d. "Original Author" means the individual or entity who created the Work.

e. "Work" means the copyrightable work of authorship offered under the terms of this License.

f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

g. "License Elements" means the following high-level license attributes as selected by Licensor and indicated in the title of this License: Attribution, ShareAlike.

2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;

b. to create and reproduce Derivative Works;

c. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;

d. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works.

The following subsection, 3(e), was added to Version 2.0 to address specific applications of copyright to musical compositions.

e. For the avoidance of doubt, where the work is a musical composition:

i. Performance Royalties Under Blanket Licenses. Licensor waives the exclusive right to collect, whether individually or via a performance rights society (e.g. ASCAP, BMI, SESAC), royalties for the public performance or public digital performance (e.g. web-cast) of the Work.

Most publishers of musical works are members of one of the three major performing rights societies, ASCAP, BMI, and SESAC. These organizations collect royalties from the performance of musical works in situations in which it would be administratively difficult for an individual publisher to collect, such as from radio stations and jukeboxes. These organizations then distribute those funds according to complex formulas among their members. This subsection makes clear that the licensor does not intend to enforce such rights against its licensees or to authorize one of the performing rights societies to do so on its behalf.

ii. Mechanical Rights and Statutory Royalties. Licensor waives the exclusive right to collect, whether individually or via a music rights society or designated agent (e.g. Harry Fox Agency), royalties for any phonorecord You create from the Work ("cover version") and distribute, subject to the compulsory license created by 17 USC Section 115 of the US Copyright Act (or the equivalent in other jurisdictions).

United States copyright law also provides authors of musical composition the right to collect royalties from artists who perform those works and distribute copies on fixed media, such as phonograph records or compact discs. As is the case with synchronization rights and performance rights, Version 2.0 of the license makes clear that the Licensor intends to grant those rights without payment of royalties to its licensees.

f. Webcasting Rights and Statutory Royalties. For the avoidance of doubt, where the Work is a sound recording, Licensor waives the exclusive right to collect, whether individually or via a performance-rights society (e.g. SoundExchange), royalties for the public digital performance (e.g. webcast) of the Work, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions).

This extends the waiver of the right to collect royalties for performance rights for Web broadcasts of the Work.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

a. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

b. You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License, a later version of this License with the same License Elements as this License, or a Creative Commons iCommons license that contains the same License Elements as this License (e.g. Attribution-ShareAlike 2.0 Japan). You must include a copy of, or the Uniform Resource Identifier for, this License or other license specified in the previous sentence with every copy or phonorecord of each Derivative Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

Section 4(b) of Version 2.0 explicitly permits the transnational licensing of works, so long as each of the License Elements in the "new" license are contained in the original license. This permits, however, essentially only the "relicensing" of the Work under other, substantially identical, Creative Commons Licenses. Section 4(b) also permits such "relicensing" under later versions of the same Creative Commons license, a feature not present in Version 1.0.

c. If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

Section 4(c) of Version 2.0 adds a new requirement in providing attribution to the Author by requiring that the Licensee include a URI or hyperlink directing a future user to the Original Work. This requirement is subject to some limitations. First, the link must be provided by the Author. Licensees have no obligation to track down the correct URI if none is provided. Second, such linking must be "reasonably practicable," that is, the hyperlink should function and should direct the user to that Original Work. Third, that hyperlinked reference must contain the copyright and licensing information associated with the Original Work.

In what is likely the most substantial departure from Version 1.0, Version 2.0 of the license provides for no warranty of non-infringment as part of the license. Version 2.0 also specifically disclaims warranties of merchantability, fitness for a particular purpose, accuracy, and the absence of defects. The license otherwise contains similar disclaimers as to representations and warranties and limitations on liability.

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Termination

a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

8. Miscellaneous

a. Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

b. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.

c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.

d. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Sections 7 and 8 of Version 2.0 of the license are identical to those same provisions in Version 1.0.

The Creative Commons project is just getting started. It remains an open question whether the ideas behind the open source and free software licensing movement will have the same impact on aesthetic works that they had on software. Nonetheless, the Creative Commons Licenses provide a good foundation for the attempt.

There are also a few licenses meant for documentation, notably the GNU Free Documentation License (GFDL), available at http://www.gnu.org/copyleft/fdl.html, and the Open Publication License (OPL), available at http://www.opencontent.org/openpub/. These are more tightly focused on technical documentation and publishing, but offer free and open source analogs to this aspect of the software development world.




Open Source and Free Software Licensing
Understanding Open Source and Free Software Licensing
ISBN: 0596005814
EAN: 2147483647
Year: 2003
Pages: 78

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