Slide presentation by Professor Anne Fitzgerald (Creative Commons Australia), providing an overview of the version 4.0 international Creative Commons licences; presented in December 2013

1. Professor Anne Fitzgerald
Creative Commons Australia
afitzgerald@lawyer.com
December 2013
See: “Explainer: Creative Commons”, on The Conversation, at
https://theconversation.com/explainer-creative-commons-21341
© 2013 Anne Fitzgerald. This presentation is licensed under the Creative Commons Attribution 3.0
Australia licence.

2. Copyright licensing –
traditional practice
©
all rights reserved
 “All rights reserved” (or, at least, most rights reserved)
 Use requires prior permission from the copyright owner
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unless within an exception to owner’s rights (e.g. fair
dealing) under the Copyright Act
Negotiating terms is cumbersome, time consuming,
expensive – inefficiency means high transaction costs
Has led to multiple non-standard licences
Problem of “orphan” works – no identifiable copyright
owner from whom permission may be obtained
Arose from pre-internet era - not geared to the immediate
and global nature of the internet
© 2013 Anne Fitzgerald.

3. ©
all rights reserved

4. Creative Commons

5. Creative Commons
 a standardised system for licensing the use of
copyright materials
 a suite of 6 standardised licences
 available in 3 forms: plain english (summary); legal code
and machine-readable code
 Each licence:
 grants baseline permissions to users to use copyright
material
 on specified, standardised core conditions
© 2013 Anne Fitzgerald..

6. Copyright licensing – with CC licences
 Based on copyright
 Only some rights reserved
 Relatively short, simplified, standardised licences which provide
permission in advance
 BUT
 do not cover all possible kinds of permissions – other kinds of
permissions will have to be negotiated
 Do not contain detailed provisions covering all relevant aspects of
the law
 Must be read in the context of copyright law (legislation &
judgments) and often other relevant bodies of law (e.g. private
international law – “jurisdictional” issues and applicable law)
 Also have to be read in context of other relevant “information” laws
notably privacy (data protection), security, and interception of
communications (telecommunications) - See Chang v. Virgin
Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)
© 2013 Anne Fitzgerald..

7. In short, Creative Commons is ….
 A set of licences that are free for anyone to use
 Based on copyright
 A copyright licence (permission to use)
 A way of managing copyright, particularly for material
distributed online
© 2013 Anne Fitzgerald..

8. CC licence versions
 http://creativecommons.org.au/learn-more/licences
 Version 1.0: 16 December 2002 – the “generic” licences, based on US
copyright law and concepts
 Version 2.0: May 2004
 Version 2.5: May 2005 – first Australian CC licences were ported
licences, developed from the generic licences
 “porting” means adapting the generic licences to the laws and
languages of CC Affiliates worldwide
 Within a few years, the generic licences were ported to more than 45
jurisdictions
 Version 3.0: 2007 – Australian ported version 3.0 licences developed
from the unported licences were launched in 2010
 Porting was carried out by more than 60 CC Affiliates, but was not
possible in countries which lacked resources or legal expertise
 Some countries completed the porting quickly (eg NZ in 2007) but in
others it was delayed (eg the Arabic version was launched in late 2013)
 Ported version 3.0 licences for Intergovernmental Organisations (IGOs)
launched in December 2013

9. CC licence versions
 It was against this background that the development of a
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new, international version of the CC licences was proposed in 2011
Drafting of the version 4.0 licences began in late 2011 - involved
extensive consultations between CC headquarters lawyers and
international CC Affiliates, stakeholders and the broader community
over a 2-year period
Many jurisdiction-specific copyright and licensing issues were
identified and addressed
The aim was to produce an internationalised, easy-to-use version of the
licences suitable for use worldwide, by simplifying both their structure
and expression
The version 4.0 international licences were launched on 25
November 2013 – they are intended to:
 be more interoperable with other open content and open source
licences;
 better meet the needs of certain categories of users
(notably, governments and intergovernmental organisations); and
 extend the use of CC licences to data and public sector information

10. Version 4.0
 The approach taken in developing the version 4.0
licences is a significant departure from that which had
prevailed from 2005
 The version 4.0 licences are intended to be suitable for
use as is, without the need for porting
 The expectation is that the version 4.0 CC licences will
be legally effective worldwide and that few, if
any, jurisdiction-specific ports will be required
 They have been translated into the languages of many
CC Affiliate countries and the official translations are
to be treated as equivalent to the original English
language version

11. Structure of the version 4.0 licences
 For version 4.0 licences, see
http://creativecommons.org/licenses/
 Licence chooser: http://creativecommons.org/choose/
 The licence structure has been simplified (8 sections, as compared to 13


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




in version 3.0)
Explanatory information about the operation of the licences before the
licence text – “Considerations for licensors”, “Considerations for the
public”
Section 1 - Definitions
Section 2 - Scope
Section 3 - License Conditions
Section 4 - Sui Generis Database Rights
Section 5 - Disclaimer of Warranties and Limitation of Liability
Section 6 - Term and Termination
Section 7 - Other Terms and Conditions
Section 8 – Interpretation

12. Considerations for licensors
 Considerations for licensors: Our public licenses are
intended for use by those authorized to give the public
permission to use material in ways otherwise restricted by
copyright and certain other rights. Our licenses are
irrevocable. Licensors should read and understand the
terms and conditions of the license they choose before
applying it. Licensors should also secure all rights
necessary before applying our licenses so that the public
can reuse the material as expected. Licensors should clearly
mark any material not subject to the license. This includes
other CC-licensed material, or material used under an
exception or limitation to copyright. More considerations
for licensors.

13. Considerations for the public
 Considerations for the public: By using one of our public
licenses, a licensor grants the public permission to use the
licensed material under specified terms and conditions. If
the licensor’s permission is not necessary for any reason–
for example, because of any applicable exception or
limitation to copyright–then that use is not regulated by
the license. Our licenses grant only permissions under
copyright and certain other rights that a licensor has
authority to grant. Use of the licensed material may still be
restricted for other reasons, including because others have
copyright or other rights in the material. A licensor may
make special requests, such as asking that all changes be
marked or described. Although not required by our
licenses, you are encouraged to respect those requests
where reasonable. More considerations for the public.

14. Copyright-based licences
 The version 3.0 CC licences are predicated upon the
existence of copyright in the materials to which they are
applied.
 In granting permission to users to use the material, the
effectiveness of the licences is based on the underlying
copyright interests.
 The material encompassed by the term “Work” in the
version 3.0 licences includes literary, dramatic, musical and
artistic works, as well as sound
recordings, cinematographic films, television and sound
broadcasts, and published editions.
 In other words, the definition makes it clear that the term
“Work” refers to the copyright material to which the licence
is applied and that any kind of material to which copyright
applies is included within its scope.

15. Copyright-based licences
 The version 4.0 licences grant permissions that are broader
in scope than those granted under the version 3.0 licences
 The version 4.0 licences are based on copyright and sui
generis database rights in the Licensed Material
 “Copyright” is used in a broad sense and includes forms of
protection that are styled as neighbouring rights (such as
performer’s rights)
 The version 4.0 licences are based on “Copyright and
Similar Rights” which are defined as
 copyright and/or similar rights closely related to copyright,
including, without limitation, performance, broadcast, sound
recording and Sui Generis Database Rights, without regard to
how the rights are labelled or categorized

16. Copyright-based licences
 “Licensed Rights” are defined as meaning the rights
granted to the recipient (addressed as “You”):
 subject to the terms and conditions of this Public
License, which are limited to all Copyright and Similar
Rights that apply to Your use of the Licensed Material
and that the Licensor has authority to license.
 “Licensed material” means “the artistic or literary
work, database, or other material to which the
Licensor has applied [the CC licence] CC BY version
4.0, Section 1(g).

17. Baseline permissions
 Fundamental baseline rights granted by all version 4.0 CC
licences:
 to “exercise the Licensed Rights in the Licensed Material
to (A) reproduce and Share the Licensed Material, in
whole or in part”
 The baseline permissions granted under the version 4.0
licences are more extensive than those granted under the
version 3.0 licences - the Licensed Rights in the version 4.0
licences consist of copyright and similar rights
(and, specifically, sui generis database rights)
 In the licences without the NC condition the rights granted
may be exercised by the recipient of the CC Licensed
Material for “commercial purposes”

© 2013 Anne Fitzgerald.

18. Baseline permissions: reproduce and share
 Unlike the version 3.0 licences, the version 4.0 licences
do not define “reproduce” but provide an expansive
definition of “Share”
 “Share” means:
 to provide material to the public by any means or
process, such as reproduction, public display, public
performance, distribution, dissemination, or
communication, and to make material available to the
public including in ways that members of the public
may access the material from a place and at a time
individually chosen by them, in all cases only to the
extent permission is required under the Licensed Rights.

19. Baseline permissions: databases
 The provisions relating to sui generis database
rights, in Section 4 of the version 4.0 CC
licences, explain that where the Licensed Material
includes a database in which sui generis database
rights exist, the grant of permission to “reproduce and
Share” is to be read as including “the right to
extract, reuse, reproduce, and Share all or a substantial
portion of the contents of the database.”

20. Additional baseline permissions – Adapted
Materials
 For those version 4.0 licences which do not carry the ND condition, the licence
additionally grants to Licensees permission to “produce, reproduce and Share Adapted
Material”
 “Adapted Material” replaces the concept of Derivative Work that appears in the version
3.0 Australia licences. “Adapted Material” is defined as:
 material subject to Copyright and Similar Rights that is derived from or based upon the
Licensed Material and in which the Licensed Material is translated, altered, arranged,
transformed, or otherwise modified by You in a manner requiring permission under the
Copyright and Similar Rights held by the Licensor. For purposes of this Public License,
where the Licensed Material is a musical work, performance, or sound recording, Adapted
Material is always produced when the Licensed Material is synched in timed-relation with
a moving image.
 A further point of difference between the version 3.0 and version 4.0 licences is that the
latter do not make any reference to the use of the CC-licensed work in a Collection and do
not define the term “Collection”.
 The definition of Adapted Material makes it clear that it refers only to material that is
added by the person who receives the CC Licensed Material. In other words, the
provisions relating to Adapted Material apply only to those who use the CC Licensed
Material to produce Adapted Material.

21. Core Conditions
Attribution (BY) – attribute the author, and no false attribution
This applies to all CC licences
Non Commercial (NC) – no “commercial use” (as defined)
No Derivatives (ND) – no changes allowed to original work
Share Alike (SA) – changes allowed, but new work is to be
distributed under the same licence as the original work
* ND and SA cannot be used together
© 2013 Anne Fitzgerald..

22. Licence combinations
© 2013 Anne Fitzgerald.

23. Attribution (BY)

24. Attribution (BY)
 The Attribution condition is fundamental to CC and is
found in all six CC licences. It is the only core condition
included in the Attribution licence (CC BY) which is the
least restrictive of the CC licences, permitting the broadest
reuse and distribution of the licensed material and
imposing the least restrictions.
 The Attribution requirements in the version 4.0 CC
licences are similar to those in the version 3.0 licences, but
have been simplified and are more flexible, in order to
better reflect common practice.
 In the version 4.0 licences, the Attribution and marking
requirements have been consolidated into a single
section, in which the requirements are set out in list form.

25. Attribution (BY)


The version 4.0 licences do not require reference to the title of the work and make it clear that it is
only necessary to make reference to other forms of attribution information (such as the identity of
the creator or other designated parties and a copyright notice) if the Licensor has supplied that
information with the Licensed Material. The onus is on the Licensor to provide the relevant
attribution information with the Licensed Material.
The Attribution condition under the version 4.0 CC licences requires the Licensee to comply with the
following requirements whenever the Licensed Material or Adapted Material is Shared:
 where the relevant information is supplied by the Licensor with the Licensed Material:
 identify the creator(s) of the Licensed Material and others designated to receive
attribution, in any reasonable manner requested by the Licensor (including by pseudonym or
trademark);
 retain a copyright notice;
 retain a notice that refers to the CC licence applied to the Licensed Material and the
disclaimer of warranties; and
 retain a URI or hyperlink to the Licensed Material if reasonably practicable;
 indicate modifications that have been made to the Licensed Material and retain any indication
of any previous modifications to the Licensed Material; and
 indicate that the Licensed Material is licensed under the CC licence and include the text of, or
the URI or hyperlink to the CC licence.

26. Attribution (BY)
 The Attribution obligations must be met whenever
the Licensed Material is Shared, that is, whenever
the Licensed Material is provided to the public by
any means or process, whether active (for
example, by reproduction, distribution or
communication) or passive (for example, making
it available so the public can access it at their
convenience)

27. Non Commercial (NC)

28. Non Commercial (NC)
 CC licences with the NC condition permit the licensed
material to be used by Licensees, provided such use is not
for commercial purposes
 “Commercial” is defined in the version 3.0 Australia
licences as meaning “primarily intended for or directed
towards commercial advantage or private monetary
compensation”
 In the version 4.0 licences, “NonCommercial” is defined in
similar terms, although the word “private” no longer
appears:
 “NonCommercial” means not primarily intended for or
directed towards commercial advantage or monetary
compensation

29. No Derivative Works (ND)

30. No Derivatives (ND)
 The CC Attribution No Derivatives licence (CC BY-ND)
prohibits the alteration or transformation of the licensed
work to create Derivative Works (in the version 3.0
Australia licences) or Adapted Material (in the version 4.0
licences)
 The ND condition means the CC-licensed work can only be
used in the form in which it has been distributed by the
Licensor and cannot be changed or modified
 It does not prevent modifications that are technically
necessary to exercise the licensed rights in other media and
formats.
 The version 4.0 licences make it clear that the Licensed
Material may be reproduced and Shared either “in whole or
in part”, provided it is not used to produce Adapted
Material.

31. Share Alike (SA)

32. Share Alike (SA)
 If You Share Adapted Material You produce, the following
conditions also apply.
 The Adapter’s License You apply must be a Creative
Commons license with the same License Elements, this
version or later, or a BY-SA Compatible License.
 You must include the text of, or the URI or hyperlink to, the
Adapter's License You apply. You may satisfy this condition in
any reasonable manner based on the medium, means, and
context in which You Share Adapted Material.
 You may not offer or impose any additional or different terms
or conditions on, or apply any Effective Technological
Measures to, Adapted Material that restrict exercise of the
rights granted under the Adapter's License You apply.

33. Governing law
 The unported version 3.0 CC licences (the “international licences”) did not
specify the law of any particular jurisdiction as the governing law for the
licences – but in the Australian versions of the 2.5 and 3.0 CC licences, in the
interests of providing greater clarity and certainty for Licensors, the Governing
Law clause specified the jurisdiction whose laws were to apply to the licence
 The Governing Law clause in the Australian version 3.0 CC licences states that
“the construction, validity and performance of the licence shall be governed by
the laws in force in the Australian Capital Territory, Australia” – in the version
2.5 Australian CC licences, the governing law was the laws of the State of New
South Wales.
 The version 4.0 CC licences do not contain a default rule for choosing the
jurisdiction whose law is to apply to the licence and do not provide for the law
of any particular jurisdiction to be nominated as the governing law - means
that Licensors and Licensees are provided with no practical guidance and
means that, in the event of a dispute involving the licences, it will be left to
domestic courts to determine the governing law in accordance with conflicts of
laws rules - This outcome was reached following extensive consultation and
consideration of a range of options during the drafting of the version 4.0
licences - it is intended that the version 4.0 CC licences will operate on the
same basis worldwide

34. CC Australia
 See: “Explainer: Creative Commons”, on The Conversation at
https://theconversation.com/explainer-creative-commons-21341
 More information at creativecommons.org.au and creativecommons.org
 Twitter: @ccAustralia @eduCCau @govCCau
 Facebook: http://www.facebook.com/ccAustralia
 Professor Anne Fitzgerald
 Publications: http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html
 Twitter: @AnneMFitzgerald
CC & Government Guide: Using Creative Commons 3.0 Australia Licences
on Government Copyright Materials
Anne Fitzgerald, Neale Hooper & Cheryl Foong (2011)
http://eprints.qut.edu.au/38364/
http://creativecommons.org.au/sectors/government