CC Licences Evolution

Creative Commons Update:
the version 4.0 international
licences and CC adoption
Dr Anne Fitzgerald
Neale Hooper
State Library of Queensland, Brisbane
18 July 2014
"Creative Commons Update” by Dr Anne Fitzgerald is licensed under a Creative Commons Attribution 3.0 Australia Licence. To view a copy of this license, visit
http://creativecommons.org/licenses/by/3.0/au/.
1

The emergence of Creative Commons
• Internet new technologies and challenges for "traditional" copyright
practices
• Creative Commons was formed as a direct response to shortcomings of
copyright laws and licensing practices
• The founders of Creative Commons identified the need to address
obstacles to the free flow of copyright materials and information online
• CC licences were developed with the intention of being used in the
interactive and distributed environment of the internet - they are shaped
by the online environment, the plasticity of digital works and remix culture,
but are also suitable for use on works in hard copy form
2

Creative Commons – the entity and the licences
• 1999 - Professor Lawrence Lessig and other members of the founding group began working
towards the formation of Creative Commons as a non-profit organisation
• 2001 – Creative Commons (the organisation) was launched
• CC’s global headquarters is in Mountain View, California
• led by a CEO – now Ryan Merkley (from 1 June 2014); supported by a Board of Directors and an Advisory
Council comprised of thought leaders, copyright lawyers and scholars, education experts, technologists,
investors, entrepreneurs and philanthropists (Professor Brian Fitzgerald is on Advisory Council and was
formerly on the Board of Directors)
• December 2002 – the first suite of CC licences (version 1.0) was launched
• The members of the Board of Directors are: Hal Abelson, Ben Adida, Renata Avila, Paul Brest
(Chair), Michael Carroll, Dorothy Gordon, Paul Keller, Laurie Racine, Thomas Rubin, Eric Saltzman,
Chris Sprigman, Christopher Thorne, Molly Van Houweling, Esther Wojcicki (Vice Chair) and
Jongsoo Yoon.
• The members of the Advisory Council are: John Abele, Catherine Casserly (former CC CEO), Brian
Fitzgerald, Sue Gardner, Spencer Hyman, Joi Ito, Lawrence Lessig, Mohamed Nanabhay, Annette
Thomas and Jimmy Wales.
3

Creative Commons – the entity and the licences
• CC grew rapidly into a global network of over 100 volunteer affiliate groups
working in more than 75 countries on six continents
• In Australia, the CC affiliate was set up at QUT in 2004 – Professors Brian
Fitzgerald and Tom Cochrane were project leads
• QUT entered in MOU with CC HQ covering how CC was to run in Australia
• All the work from 2004 to 2014 was based at QUT – licence development (v 2.5, 3.0,
4.0), advocacy, materials, education, handling inquiries
• Professor Brian Fitzgerald no longer at QUT but is on CC’s international
Advisory Board
• QUT continues to be the CC Australia affiliate (Prof Tom Cochrane and Dr
Nic Suzor as project leads)
• Additional affiliates are to be brought on board: National Copyright Authority (Delia
Browne); AusGoal
• Potential for other affiliates (including from Government) and volunteers
4

How the CC licences work
• Can be used on any copyright material – except for software (computer
programs)
• Use copyright as the platform to structure the distributed commons –
facilitates lawful reuse + remix and minimises (removes) transaction costs
• Provide creators and users of copyright with the ability to engage,
collaborate and facilitate release, flow and use of copyright content in the
digital environment
• Grant use permissions in advance and to the world at large
5

Uptake of CC through diversity of sectors
• Although CC had its origins in the creative and cultural sector, the licences
have been embraced by and are increasingly being used across a diversity
of sectors including:
• the creative industries
• cultural heritage institutions
• education
• research
• Industry
• science
• government
• intergovernmental organisations.
During the decade since they were first launched, the CC licences have
proven to be an effective and simple mechanism to facilitate sharing and
collaborative production of content in the digital environment.
6

CC’s perspective on licence adoption
“CC licenses provide the terms of use for more than 500 million works published
on the Internet. Globally accessible works include novels, blogs, photos, movies,
music, educational materials, scholarly articles, and much more. These works
are published by individuals, companies, galleries, libraries, archives, museums,
universities, governments, intergovernmental organizations, and a range of
other institutions. Millions of articles, videos, and photos licensed under CC
terms can be found on popular Internet sites such as Wikipedia, YouTube, and
Flickr. Institutional adopters of CC licenses include universities that are part of
the OpenCourseWare consortium, Al Jazeera, Whitehouse.gov, the Public
Library of Science, UNESCO, the World Bank, and many more.“
Creative Commons website, “Opportunities” page (accessed April 2014 – no longer displayed).
"Creative Commons Update” by Dr Anne Fitzgerald is licensed under a Creative Commons Attribution 3.0 Australia Licence. To view a copy of this license,
visit http://creativecommons.org/licenses/by/3.0/au/.
7

Some measures of CC uptake
• The number of CC-licensed items in circulation has steadily increased –
estimated to be > 500 million in 2013
• A 2014 statistical study (based on an estimate of a total of 400 million CC-
licensed works):
• photographs comprise the great majority of CC-licensed works (more than 75%) [eg
Flickr]
• text items (7.5%) [eg Wikipedia, OA journals]
• videos (1.8%) [eg YouTube]
• audio recordings (0.3%) [eg SoundCloud]
• More than half of the CC-licensed works available online have been
provided under licences that permit the material to be modified and
adapted – that is, without any limit on making “derivatives” (CC’s ND
condition)
8

Some further statistics on CC adoption
• Applying CC licences and finding CC-licensed materials became much easier when:
• social media platforms such as Flickr and YouTube introduced CC licensing options into their
upload functionalities, and
• search engines such as Google and Yahoo! made it possible to search for CC-licensed materials.
• Flickr is the largest single repository of CC-licensed works, numbering around 375 million
(as of March 2014)
• Other platforms that have a large amount of CC-licensed content are Wikipedia (33
million pages), Wikimedia Commons (more than 21 million files in 116,000 media
collections) and YouTube (more than 9 million videos).
• In the research sector CC licences are being widely used to enable open access to
research publications and data:
• The Open Access Scholarly Publishers Association (OASPA), whose members include publishers
such as BioMed Central, Hindawi and the Public Library of Science (PLoS), reported that by the end
of 2012 over 250,000 journal articles had been published under the CC BY licence.
• Of almost 10,000 journals listed in the Directory of Open Access Journals (DOAJ), just under 40%
use a CC licence. Further, the rate at which journal articles are being published under the CC BY
licence has increased consistently and significantly each year.
9

CC licence versions
• Version 1.0 - 16 December 2002: based on United States copyright law, concepts and
practice; known as the “generic” licences because they did not identify a specific
jurisdiction or governing law applying to the licence.
• Version 2.0 – 25 May 2004;
• International licences were called the “generic” licences – drafted to comply with US copyright law
• Version 2.5 – June 2005;
• International licences were called the “generic” licences – drafted to comply with US copyright law
• Ported into national versions – the first Australian CC licences were version 2.5
• Version 3.0 – 23 February 2007
• Initially known as “unported” licences but in 2010 re-branded as “international” licences
• Core version 3.0 licences drafted to conform to international treaties and drafting conventions
• Ported into national versions – in Australia, v 3.0 launched in 2010 (NZ, 2007)
• Version 4.0 – 25 November 2013
• CC version 4.0 international (unported) licences
• Genuinely international licences – not intended to be ported
10

CC licence versions: v 1.0 → v 2.0, 2.5
• From late 2003, Creative Commons launched a licence internationalisation
project to promote the “porting” of the version 1.0 generic licences to adapt
them to the laws and languages of the jurisdictions of CC Affiliates around the
world
• “Porting” involves more than a literal or direct translation of the text of the
licences from English into the language of another jurisdiction – it requires the re-
drafting of the Legal Code of each licence so that, as far as possible, the ported
licences have the same legal effect as the unported licences and are valid and
enforceable under the laws of the local jurisdiction
• The task of porting of the generic licences into local versions was embraced
enthusiastically by the local CC Affiliate groups which had been established in
numerous countries worldwide and within a few years the generic licences had
been ported to more than 45 jurisdictions (version 2.0 / version 2.5)
11

CC licence versions: v 3.0 (ported)
• In 2005 Creative Commons decided to focus on internationalising the
generic licences and achieving greater international harmonisation
among the ported CC licences . The first unported licences, released
in 2007, became version 3.0 of the CC licence suite - the version 3.0
unported licences drew upon the language of the major international
intellectual property treaties such as the Berne Convention for the
Protection of Literary and Artistic Works (1886) (rather than US law,
as in the earlier versions)
• Porting of the version 3.0 licences was taken up by more than 60 CC
Affiliates and a ported version of the 3.0 licenses was produced
specifically for use by intergovernmental organisations
12

CC licence versions: v 3.0 → v 4.0
• However, porting was not feasible in several countries where CC
Affiliate groups lacked the expertise or support required to undertake
the work involved in producing localised versions of the licence suite
– in many other Affiliate jurisdictions the porting processes was
lengthy and publication of the ported licence suite was delayed
• It was against this background that the development of a new,
international version of the CC licences was proposed in at the CC
Global Summit in late 2011
• The drafting of the version 4.0 licence suite began in late 2011 and
continued for 2 years - involved extensive consultations between CC
headquarters lawyers and international CC Affiliates, stakeholders and
the broader community
13

CC licence versions: v 4.0 international
• Version 4.0 licences were launched on 25 November 2013
• Aim in drafting the version 4.0 licences was to produce an internationalised, easy-
to-use version of the licences suitable for use worldwide, by simplifying both
their structure and expression
• Intended to be more interoperable with other open content and open source
licences, to better meet the needs of users and to extend the use of CC licences
to data and public sector information
• The version 4.0 licences are drafted to conform to relevant international treaties
and drafting conventions
• Are “jurisdiction agnostic” – do not mention and are not drafted against any
particular jurisdiction’s laws
• Intended to be suitable for use as is, without the need for porting on a
jurisdictional basis - expectation is that they will be legally effective worldwide
and that few, if any, jurisdiction-specific ports will be required
• Being translated into the languages of many CC Affiliate countries – official
translations are treated as equivalent to the English language version
14

Version 3.0 Australia and Version 4.0
international licences
• Both the version 3.0 CC Australia (ported) and the version 4.0
international (unported) licences are “current” for use in Australia
• The version 3.0 CC Australia licences were drafted in keeping with
Australian copyright law and practice (and have Australian governing
law)
• The version 4.0 international licences are not based specifically on
any country’s law and do not specify any governing law
• Essentially, the version 3.0 CC Australia and the version 4.0
international licences achieve the same outcome
• The differences are in the detail – in the Legal Code
15

Aim of version 4.0 process
• Goals and objectives of the version 4.0 licence development process were:
• Internationalization – further adapt the core suite of international licenses to operate
globally, ensuring they are robust, enforceable and easily adopted worldwide;
• Interoperability – maximize interoperability between CC licenses and other licenses to
reduce friction within the commons, promote standards and stem license proliferation;
• Long-lasting — anticipate new and changing adoption opportunities and legal challenges,
allowing the new suite of licenses to endure for the foreseeable future;
• Data/PSI/Science/Education — recognize and address impediments to adoption of CC by
governments as well as other important, publicly-minded institutions in these and other
critical arenas; and
• Supporting Existing Adoption Models and Frameworks – remain mindful of and
accommodate the needs of our existing community of adopters leveraging pre-4.0 licenses,
including governments but also other important constituencies.
• See:
• 4.0: http://wiki.creativecommons.org/4.0
• Licence versions: http://wiki.creativecommons.org/License_versions
16

Same licence combinations in version 3.0 and version 4.0

Licence combinations – in v 3.0 Australia and v 4.0 international
Attribution 3.0 Australia (BY)
<http://creativecommons.org/licenses/by/3.0/au/>
Attribution 4.0 (BY)
<http://creativecommons.org/licenses/by/4.0/>
Attribution No Derivatives 3.0 Australia (BY-ND)
<http://creativecommons.org/licenses/by-nd/3.0/au/>
Attribution No Derivatives 4.0 (BY-ND)
<http://creativecommons.org/licenses/by-nd/4.0/>
Attribution NonCommercial 3.0 Australia (BY-NC)
<http://creativecommons.org/licenses/by-nc/3.0/au/>
Attribution NonCommercial 4.0 (BY-NC)
<http://creativecommons.org/licenses/by-nc/4.0/>
Attribution NonCommercial No Derivatives 3.0 Australia (BY-NC-ND)
<http://creativecommons.org/licenses/by-nc-nd/3.0/au/>
Attribution NonCommercial No Derivatives 4.0 (BY-NC-ND)
<http://creativecommons.org/licenses/by-nc-nd/4.0/>
Attribution NonCommercial Share Alike 3.0 Australia (BY-NC-SA)
<http://creativecommons.org/licenses/by-nc-sa/3.0/au/>
Attribution NonCommercial Share Alike 4.0 (BY-NC-SA)
<http://creativecommons.org/licenses/by-nc-sa/4.0/>
Attribution Share Alike 3.0 Australia (BY-SA)
<http://creativecommons.org/licenses/by-sa/3.0/au/>
Attribution Share Alike 4.0 (BY-SA)
<http://creativecommons.org/licenses/by-sa/4.0/>
18

Suite of standardised licences
• The CC licences are standardised legal tools represented by:
• abbreviations,
• Icons, and
• buttons
so that users are readily able to identify and understand them
• Through standardisation of the licence terms and their visual
representations, the CC licences aim to encourage reuse and sharing
of copyright materials by granting permissions clearly and in advance,
thereby removing the barriers encountered when licence negotiation
is necessary on a case-by-case basis
19

Copyright-based licences
• The CC licences are predicated upon the existence of copyright in the
materials to which they are applied – the version 4.0 licences also
apply to sui generis database rights
• In granting permission to users to use the material, the effectiveness
of the licences is based on the underlying copyright interests (and,
where they exist, sui generis database rights)
• In licensing a copyright work under a CC licence, the Licensor is
granting permissions based on copyright and related rights (in the
version 4.0 licences, sui generis database rights)
20

CC licences do not extend to all
interests/rights
• CC licences do not grant permission or consent for other purposes or under other laws
that may also apply to the copyright-protected material, such as confidentiality or privacy
• As well as non-copyright interests, it is necessary to take into account any other
copyright interests that may exist, eg where a photograph or video captures another
copyright work – such as a painting, another photograph or a performance – it will be
necessary to obtain the permission (“clearance”) from the owner of that underlying
copyright work.
• Illustrated by a dispute that arose in 2007 when Australian mobile phone company Virgin
Mobile used a photo of a young girl that had been posted on Flickr under a CC BY licence
in its advertising campaign. The photo was reproduced in bus stop ads promoting Virgin
Mobile’s text messaging service, with the words “Dump your pen friend” displayed
prominently above the girl’s image. Although the CC BY licence permitted Virgin Mobile
to use the photo, they had not obtained permission from the girl or her legal
representatives to use her image in their advertising. In an action against Virgin Mobile, it
was alleged that the girl’s reputation had been damaged and her privacy had been
invaded. An example of the ad is available at
http://www.flickr.com/photos/sesh00/515961023/.
21

Licence to be applied by a person with legal
authority to do so
• A CC licence must be applied by the rights owner or someone who has been
authorised by the rights owner to license the work under the terms of the
relevant CC licence
• In some instances a CC licence will lawfully be applied by someone other than the
copyright owner, who has been authorised by the copyright owner to do so (or, in
a jurisdiction which recognises Database Rights, the owner of the database)
• This aspect of the operation of the CC licences is highlighted in the
“Considerations for licensors” and “Considerations for the public” paragraphs in
the explanatory material (headed “Using Creative Commons Licences”) which
immediately precedes the text of each of the version 4.0 licences
• “Considerations for the public” explain:
• Our licenses grant only those permissions under copyright and certain other rights that a
licensor has authority to give. Use of the licensed material could still be restricted for other
reasons, including because others have copyright or other rights in the material.
22

“Some (not all) rights reserved”
• The various approaches adopted by copyright owners towards the management of their copyright
interests can be viewed as a continuum
• At one end is the traditional “all rights reserved” approach
• the copyright owner distributes their copyright material under conditions that assert the owner’s rights but
do not grant permission to users to do any of the acts within the scope of the owner’s copyright.
• “© All Rights Reserved” – if the material is used without first obtaining permission, unless the use or activity
falls within a free use exception or limitation or a statutory licence, the user may infringe copyright.
• At the other extreme is abandonment of copyright or dedication of the material to the public
domain, the copyright owner making it clear that they have no intention of exercising any of their
rights – public domain dedications and CC0.
• Between the two ends of the licensing spectrum is the “some rights reserved” approach which is
characteristic of open content licences
• Under the CC licences the copyright owner retains and asserts their rights, and exercises them by
granting permissions to use copyright material – CC licences reserve only those rights consistent
with ensuring that copyright material continues to remain open and usable by downstream
recipients – even the most restrictive CC licences permit use, copying and downstream
distribution of the work
23

Non-exclusive licences
• All of the CC licences are non-exclusive licences
• the Licensor retains the right to use the copyright material
themselves as well as to license any (unlimited) number of other
persons to use it on a non-exclusive basis
• The version 4.0 CC licences underline the non-exclusivity of the
licences, by expressly stating that the CC licence continues in force
even if the Licensor distributes the Licensed Material under a
different licence or stops distributing the Licensed Material
24

Royalty-free licences
• All the CC licences are granted on a royalty-free basis
• Licensees are not required to pay ongoing fees to the Licensor for the use
of the Licensed Material in accordance with the terms of the licence
• The royalty-free nature of the licences is expressly stated in the Licence
grant provisions:
• To the extent possible, the Licensor waives any right to collect royalties from You for
the exercise of the Licensed Rights, whether directly or through a collecting society
under any voluntary or waivable statutory or compulsory licensing scheme.
• The version 4.0 licences also make it clear that for uses outside the scope
of the CC licences, the Licensor reserves the right to collect royalties
• For example, a Licensor who has distributed the CC Licensed Material under an NC
licence may charge royalties for commercial use of the Licensed Material;
• The fact that the CC licences are royalty-free would not preclude the Licensor from
imposing an up-front charge at the point at which the licensed material is first
obtained by the Licensee.
25

CC licences are expressed in 3 ways
• Each of the 6 CC licences is expressed in 3 different ways:
• the Commons Deed (summary);
• the Legal Code; and
• machine-readable code.
• The standard terms of the CC licences are set out in a summarised form in
the Commons Deed and in full in the Legal Code.
• Where materials are distributed in digital form (eg a web page), the CC
licensing statement and Attribution information can also be represented in
machine-readable and searchable code (e.g. HTML or XML).
• See improved Licence Chooser at http://creativecommons.org/choose/
• Generates CC licences (icon + licensing statement)
• Default is v 4.0 but also generates earlier versions and ported licences (incl v 3.0
Australia)
26

Version 3.0 Australia Licences
• Clause 1 – Definitions
• Clause 2 – Fair Dealing and Other Use Rights Remain
• Clause 3 – Grants – can reproduce, distribute, publicly perform
• Clause 4 – Restrictions – on distribute and publicly perform
• Clause 5 and 6 – Disclaimer and Limit of Liability
• Clause 7 – Termination
• Clause 8 – Rights Retained
• Clause 9 – Direct Licence
• Clause 10 – Severability
• Clause 11 – Waiver and Consents
• Clause 12 – Entire Agreement
• Clause 13 – Governing Law
27

Version 4.0 International licences
• 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
28

Overview of changes in 4.0 international licences
• A more global license
• Rights outside the scope of copyright
• Common-sense attribution
• Enabling more anonymity, when desired
• 30-day window to correct license violations
• Increased readability
• Clarity about adaptations
• See further at:
• What’s new in 4.0: https://creativecommons.org/Version4
29

Version 4.0 international licences - global
• In developing version 4.0 CC worked closely with its international
network of affiliates, copyright experts and other stakeholders to
make the version 4.0 licences the most internationally valid set of
licences to date
• The version 4.0 licences can be used worldwide, without porting
• The terminology used in the version 4.0 licences is better understood
worldwide
• Official translations will be made of the version 4.0 licences –
translation of language rather than legal concepts
30

Version 4.0 international licences - clearer
• The 4.0 licences are:
• Easier to read than other (unported) versions
• Shorter;
• Better organised
• The simplified licence structure and use of plain language wherever
possible makes it easier for licensors and licensees to understand
their rights and obligations under the licences
• Should reduce confusion and disagreement about how the licences
operate
• Intended to assist in enforceability and compliance
31

Version 4.0 international – copyright and
other rights
• Version 4.0 licences apply to copyright and associated rights
• Make it clear that sui generis database rights are covered by the CC
licence, unless explicitly excluded by the licensor
• Moral rights held by the licensor are waived where possible to the
limited extent necessary to enable the use of the content in the
manner intended by the CC licence
32

Version 4.0 International licences –
explanatory statements
• Contain two preliminary, explanatory paragraphs addressed to
Licensors and members of the public using CC-licensed materials
• These statements do not form part of the licence itself, but are
included to provide information upfront about how the licences
operate and some issues that need to be considered by those who
apply CC licences to their content or those who use material received
under a CC licence.
• Each of the paragraphs provides a link to the CC website where
further information is available for Licensors and Licensees
33

• 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. (see
http://wiki.creativecommons.org/Considerations_for_licensors_and_licens
ees#Considerations_for_licensors
34

• 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. (see
http://wiki.creativecommons.org/Considerations_for_licensors_and_licens
ees#Considerations_for_licensees
35

CC licences are direct licences
• The CC licences take effect as a direct licence between the copyright
owner or Licensor and each recipient of the CC Licensed Material.
• Every recipient of the Licensed Material is a Licensee of the copyright
owner or Licensor who distributed the material under a CC licence.
• This is the case even where the recipient has not obtained the
material directly from the licensor.
36

CC licences are direct licences
37

CC licence structure
• Each CC licence contains:
• Baseline Permissions
• Core Conditions
• General provisions
• The 4 Core Conditions, together with the Baseline Permissions, are
used to create the six standardised licences
• By selecting among the optional Core Conditions, the licensee
determines the restrictions that are to apply to the use of the CC-
licensed material.
38

Baseline Permissions
• Each of the CC licences grants a broad range of baseline permissions which
enable Licensees to use CC licensed content in various ways, including
copying (reproducing) it, on-distributing it, posting it online and playing it
• These permissions take effect most broadly in the Creative Commons
Attribution (CC BY) licence, in which they are not subject to restrictions
other than the requirement to comply with the Attribution requirement
and other standard terms that are common to all the licences
• The provisions of the CC licences which grant the baseline permissions are
similar in both the version 3.0 and version 4.0 licences
• streamlined and clarified in version 4.0 licences
39

Baseline permissions
• Version 3.0 Australia licences authorise users to:
• reproduce, distribute and publicly perform the copyright work
• and, for licences that do not contain the ND condition, create and reproduce
one or more Derivative Works and to distribute and publicly perform a
Derivative Work
• Version 4.0 International licences grant permission to Licensees to
exercise the Licensed Rights in the Licensed Material to:
• reproduce and Share the Licensed Material, in whole or in part
• and, for licences that do not contain the ND condition, produce, reproduce
and Share Adapted Material
40

Baseline permissions – “Share”, “Adapted
Material”
• 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 the 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
• Adapted Material means:
• 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
41

Attribution (BY)
• Attribution is a Core Condition in all CC licences
• Attribution obligations differ slightly in version 3.0 Australia and
version 4.0 international licences
• Changes to Attribution requirements in version 4.0 international
licences are designed to better reflect accepted practices
• explicitly permit licensees to satisfy the attribution requirement with a link to
a separate page for attribution information - already common practice on the
internet and possible under earlier versions of the licenses, and Version 4.0
alleviates any uncertainty about its use.
42

Attribution (BY)
43
Version 3.0 Version 4.0
Author and attribution parties if designated Creator and attribution parties if supplied
Copyright notices if supplied Copyright notice if supplied
Title if supplied Not applicable
Notices that refer to Public License and the disclaimer of warranties if
supplied
Notices that refer to Public License and the disclaimer of warranties if supplied
URI licensor specifies to be associated with the work (but only if
references copyright notice or licensing info)
URI or link to the material if supplied
If Adaptation, credit indicating Work has been used and reasonable steps
taken to identify that changes were made to the original
Indicate if you modified the material; retain an indication of previous modifications
Text/URI for Public License Indicate the material is available under Public License and include text/URI/link

NonCommercial (NC)
• the work can be copied, displayed, distributed and performed and
derivative works may be created, for non-commercial purposes only;
• In version 3.0 licences, “Commercial” is defined as: “primarily
intended for or directed towards commercial advantage or private
monetary compensation”
• In version 4.0 licences “NonCommercial” is defined in similar terms,
but the word “private” no longer appears: “not primarily intended for
or directed towards commercial advantage or monetary
compensation”
44

No Derivatives (ND)
• No Derivatives (ND) restricts reuse of the CC-licensed material
• The version 3.0 Australia licences with the ND condition expressly
prohibit Licensees from making Derivative Works. In other words, ND
licensed works under version 3.0 Australia licences can only be used
in the form in which they have been distributed by the Licensor and
cannot be changed or modified.
• The version 4.0 licences are slightly less restrictive, as they permit
Licensees to “produce and reproduce, but not Share, Adapted
Material” . Thus, Licensees are permitted to use ND-licensed CC
works to produce and reproduce Adapted Material for their own use,
but are not permitted to Share any Adapted Material with the public.
45

Share Alike (SA)
• The SA condition means that others can reuse the CC-licensed work,
but that any adaptations or modifications must also be released
under the same licensing conditions as those that applied to the
original work
• SA licences are “viral” licences, which draw on licensing concepts that
originated in the free software movement founded by Richard
Stallman
• Enable communities with common interests or purposes to develop
and build upon materials which are intended to continue to be shared
among members of the community
46

Governing law
• The version 3.0 CC Australia licences contain a Governing Law clause that
states:
• “the construction, validity and performance of the licence shall be governed by the
laws in force in the Australian Capital Territory, Australia”
• 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
• silence on this issue means that Licensors and Licensees are provided with no
practical guidance
• 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 - as it is intended that
the version 4.0 CC licences will operate on the same basis worldwide, the option of
introducing a choice of law or forum provision is precluded in any language
translations or national ports of these licences.
47

Version 4.0 international licences – cure
period
• CC licences terminate automatically when they are breached
• The version 4.0 international licences have introduced a “cure period”
within which the licensee can correct the breach
• If the licensee corrects a breach of the CC licence within 30 days of
discovering it, the CC licence is automatically reinstated
• Assures users of CC-licensed material that if they act promptly they
can continue using the CC-licensed material
• Cure period is considered to better reflect how licensors and licensees
resolve compliance issues in practice
48

Validity and Enforcement
• No Australian court decisions dealing with CC licences to date
• CC licence was at issue in a dispute in January 2013 but it did not result in proceedings
• In January 2013 Trey Ratcliff, a professional photographer who runs the successful Stuck in Customs
(stuckincustoms.com) travel photography blog accused the Sydney Morning Herald of using his photograph
“Rubber Duck by Florentijn Hofman” taken at Darling Harbour, Sydney, without his permission and in
contravention of the terms of the CC licence on his website.
• The “Licensing” page of the Stuckincustoms.com website states that all the images on the site are licensed
under a CC BY-NC licence and provides detailed information about what uses will be regarded as non-
commercial and what uses are commercial and will require additional permissions. It states:
“Commercial use of our images is allowed only if expressly granted by Stuck in Customs. All commercial uses will incur a
licensing fee. …. All licensing inquiries should be sent to: licensing@stuckincustoms.com”
• Sydney Morning Herald published the photo without Ratcliff’s permission and without attribution,
(mis)representing that it had been voluntarily submitted by one of its readers.
• The editor-in-chief of the Sydney Morning Herald confirmed that the image had been found on a Twitter
feed, where it had been retweeted by a Twitter user. Although the Sydney Morning Herald set about trying
to determine the copyright ownership of the photo it failed to do so by its deadline and went ahead and
published the photo without ascertaining the identity of the photographer and without obtaining
permission to reproduce it.
• The Sydney Morning Herald acknowledged that it should have obtained permission before publishing and
apologised to Trey Ratcliff.
49

Rubber Duck by Florentijn Hofman
I think it is a wonderful surreal work of art! Then again, I’m a huge fan
of David Lynch and Twin Peaks. Anything surreal in my parallel universe
gets a big thumbs up…
- Trey Ratcliff
http://stuckincustoms.smugmug.com/Portfolio/i-8qLWMJf
Stuck in Customs – Licensing
http://www.stuckincustoms.com/licensing
Stuck in Customs allows use of Trey’s images in two ways:
Creative Commons License
With Creative Commons you are free:
To Share: Copy, Distribute, and Transmit the image
To Remix: Create Derivative works of the image
Under these conditions:
Attribution: Attribution to Trey Ratcliff and Stuck in Customs must be made along with
the image.
Non-Commercial: The image must not be used for commercial purposes under any
circumstances. For clarity on what defines commercial use, please see the Sample
Accepted Uses below.
See further:
http://www.stuckincustoms.com/2013/01/24/im-not-a-reader-sydney-morning-
herald/
50

• CC licences have been considered and upheld by courts elsewhere, eg:
• United States – Jacobsen v Katzer (August 2008, Court of Appeals for the Federal
Circuit)
• the licence at issue was an open source licence of computer programming code, but the the
decision is of direct relevance as Creative Commons intervened in the appeal as amici curiae -
from the decision it is clear that open source and CC licences will be upheld by the courts,
even though they are applied to copyright materials distributed for no financial reward, and
that failure to comply with the licence conditions may be an infringement of copyright, for
which the usual remedies will apply.
• Netherlands – Curry v Audax (2006)
• Adam Curry, a media personality, posted some photos he had taken of members of his family
on Flickr under a CC BY-NC-SA licence. Without obtaining Curry’s permission, a tabloid
magazine copied the photos from Flickr and published them in its magazine which was sold
commercially in the Netherlands. Curry sued the magazine for copyright infringement,
arguing that the CC licence was breached because the magazine used the photos
commercially and did not include a reference to the CC licence. The court held the CC licence
was enforceable and that the tabloid could only use photos from Flickr under the terms of the
CC licence or with permission from Curry.
51

• Belgium – Lichôdmapwa v. L'asbl Festival de Theatre de Spa (2009)
• In 2004 a Belgian band, Lichôdmapwa, posted a song (“Abatchouck”) on its website
under a CC BY-NC-ND licence. Part of the song (20 seconds of the total length of over 3
minutes) was used by a theatre company in an advertisement for its theatrical season
which was broadcast on national radio. The band brought an action for copyright
infringement, claiming that the theatre had modified the song, used it commercially and
failed to attribute the creator, thereby infringing the No Derivatives, NonCommercial and
Attribution conditions of the CC licence. The court confirmed the validity of the CC
licence and held that the theatre’s commercial use of the song was a breach of the CC
licence and an infringement of copyright. The theatre was ordered to pay damages of
€4,500 to the band.
52

• Germany – District Court of Cologne, 5 March 2014 (Az.: 28 O 232/13)
• A photographer had uploaded one of his photos to Flickr under a CC BY-NC 2.0 licence.
Deutschlandradio (Radio Germany), the German national public radio broadcaster, published
the photo on its website along with the name of the photographer, the CC licence and a link
to the photo and the relevant terms and conditons for its use. The photographer demanded
payment of 310 Euros from Deutschlandradio on the grounds that it had used the photo for
commercial purposes. The radio station denied that this was the case but deleted the photo
from its website. It argued that the use was non-commercial because access to the website
was free, the website did not contain advertisements and was not sponsored, and its only
goal was to fulfill its mandate as a public broadcaster.
• The District Court of Cologne (Landgericht Köln) upheld a CC BY-NC version 2.0 licence and
found that the NC condition had been breached.
• Even though Deutschlandradio did not charge for use of its website and the website did not
contain advertising and was not sponsored, the judge held that it had used the photo
commercially. It was irrelevant that the radio station was merely pursuing its public
mandate.The District Court’s ruling in this case indicates that where there is a lack of clarity
about the extent of the usage rights granted under a CC licence (as is often the case with NC
licences), the licence will be interpreted so as to uphold the rights of the copyright owner,
rather than in favour of the user. It demonstrates the importance of making further enquiries
where there is doubt about whether the use if permitted under the CC licence or not.
53

Government and copyright
• Copyright protects much of the creative, cultural, educational, scientific
and informational material generated by federal and state/territory
governments and their various departments and agencies
• Government functions result in a vast and diverse array of copyright
materials, eg legislation, parliamentary documents, cultural and historical
materials, databases of statistical, mapping, meteorological and scientific
data, official reports and publications and archived public records
• See Copyright Act 1968, Part VII – The Crown, Division 1 – Crown copyright
• S 176: Crown copyright in original works made under the direction of Crown
• S 177: Crown copyright in original works first published in Australia under direction
of Crown
• S 178: Crown copyright in recordings and films made under direction of Crown
54

Steps toward CC adoption by government
• Increasing demand by citizens, business and the public sector itself to
be able to access, use and reuse government information and
materials
• Web 2.0 technologies spurred Gov 2.0 initiatives as government
responded to calls for greater openness, transparency and
accountability
• Growing awareness of the centrality of government information to
innovation and public policy.
• Acknowledgement of need to address the challenges presented to
government, as owner, user and custodian of copyright material in
the digital age
55

Steps toward CC adoption by government
• Traditional/existing models of information management and
copyright licensing were not realising the potential offered by the
networked environment
• Pricing practices and multiple (often incompatible) licences created a
gridlock and blocked the flow of government information
• Copyright used to restrict access to information, acting as a barrier to
innovation and new opportunities for reuse
"Opening up government copyright materials for access and reuse: developments in policy and practice" by Neale Hooper is licensed under a Creative Commons
Attribution 3.0 Australia Licence. To view a copy of this license, visit http://creativecommons.org/licenses/by/3.0/au/.
56

Steps towards CC adoption by Government
• Adoption of CC licensing on material released for public information
by Australian governments was first formally recommended by the
National Innovation System review committee in Venturous Australia
– Building Strength in Innovation (2008)
• It was also recommended by the Victorian Parliament’s Economic
Development and Infrastructure Committee in its report on its Inquiry
into Improving Access to Victorian Public Sector Information and Data
(2009)
"Opening up government copyright materials for access and reuse: developments in policy and practice" by Neale Hooper is licensed under a Creative
Commons Attribution 3.0 Australia Licence. To view a copy of this license, visit http://creativecommons.org/licenses/by/3.0/au/.
57

CC BY as the default licensing option
• The release of Government copyright materials under the CC BY
licence as the default licensing option was recommended by the
Government 2.0 Taskforce (chaired by Dr Nick Gruen) in its report,
Engage: Getting on with Government 2.0 in 2009
• This recommendation was adopted by the Commonwealth
Government in 2010 and has been implemented in the IP (Intellectual
Property) Principles for Australian Government Agencies, which state
in Principle 11(b):
• Consistent with the need for free and open re-use and adaptation, public
sector information should be licensed by agencies under the Creative
Commons BY standard as the default
• The IP Principles for Australian Government Agencies explain that when
considering which licence to use, Creative Commons or other open content
licences should be the starting point.
58

CC BY as the default licensing option
• Principle that CC BY should be the default licence for government
materials is also stated in:
• The Commonwealth Attorney General’s IP Manual,
• the Guidelines for Licensing Public Sector Information for Australian
Government Agencies, and
• the Principles on Open Public Sector Information issued by the Australian
Privacy Commissioner in 2011.
59

Queensland IP Principles and Information
Standard 33
• Queensland Public Sector Intellectual Property Principles (IP
Principles) – Department of Science, Information Technology,
Information and the Arts (DSITIA)
• Information access and use policy: Information Standard 33
• Provide assistance in deciding whether or not to release copyright
government information publicly and how to use CC licences
60

Government - Open data initiatives
• Big data /open government/ open data – see http://www.theguardian.com/public-
leaders-network/2014/apr/15/big-data-open-data-transform-government
• The Australian government provides open access to government
information that can be legally provided to the public, with “value-adding
public data sets” being published on its data.gov.au portal
• These public data sets are also being distributed under a Creative
Commons licence, with the CC BY being the default licensing position –
ensuring the data may not only be accessed but also lawfully used, shared
and reused
• Since 2008, Government departments and agencies Australia-wide have
progressively applied CC licences when distributing their information and
data
61

Examples of CC adoption by government
• Agencies with responsibilities to create and publish important data
collections were the earliest adopters
• Geoscience Australia (CC BY)
• Australian Bureau of Statistics (CC BY)
• Bureau of Meteorology (CC BY)
• Australian Treasury
• Budget Papers since 2011 (CC BY)
• In 2014-2015 Budget, for the first time, tables and data from the Budget
Papers and portfolio budget statements were also made available as Excel
(xlsx) and machine-readable CSV files on the Australian government’s
data.gov.au portal (CC BY)
62

Examples of CC adoption by government
• ComLaw
• Legislative materials website (CC BY-NC-SA)
• Australian Parliament
• Parliamentary materials and draft legislation (CC BY-NC-ND)
• Data portals
• Australian government - data.gov.au
• Queensland - https://data.qld.gov.au/
• South Australia - http://data.sa.gov.au/
• Victoria - http://www.data.vic.gov.au/
• New South Wales - http://www.data.nsw.gov.au/copyright
63

Data.gov.au
"Opening up government copyright materials for access and reuse: developments in policy and practice" by Neale Hooper is licensed under a
Creative Commons Attribution 3.0 Australia Licence. To view a copy of this license, visit http://creativecommons.org/licenses/by/3.0/au/.
64

Australian Government’s Budget 2014-2015
• Since the 2010-2011 Budget, all Budget Papers (1-4), Budget
Overview, Portfolio Budget Statements and Treasurer’s Budget Speech
in each year have been published under Creative Commons
Attribution 3.0 Australia (CC BY) licence.
• In 2014-2015 for the first time tables and data from the Budget
Papers and Portfolio Budget Statements were also made available in
the form of Excel (xlss) and machine readable CSV files on the
Australian Government’s data.gov.au portal
• These tables were also provided under a CC BY 3.0 Australian licence
65

Australian Government’s ongoing commitment to
open access to government information - benefits
• The release of the 2014-2015 Budget documents in both text and
data form under the CC BY licence -
• enhances access to Budget information by the public and the media
• makes it much easier for the information to be shared, analysed and
represented visually
66

Intergovernmental organisations (IGOs) adopt
CC
• IGOs:
• UNESCO (UN Education Science and Cultural Organisation)
• World Bank
• IMF (International Monetary Fund)
• A slight variant on the 6 standard CC licences has been developed recently
for use by intergovernmental organisations in relation to their publications
and other copyright materials.
• These IGO versions of the 6 CC licences contain a mediation clause which
may be activated by an IGO to facilitate resolution of differences between
an IGO licensor and a licensee.
• UNESCO announced in December 2013 that its new Open Access
Repository makes more than 300 digital reports, books and articles
available to the world under the Creative Commons IGO licences
67

International Examples
• White House website applies the CC BY (US) licence to all materials
posted to its website by US citizens and others
• The French Ministry of Culture announced in 2014 that it was sharing
its two flagship websites under CC BY SA,
culturecommunication.gouv.fr and culture.fr.
• Philippines Laws and Jurisprudence Databank. The collection was
recently licensed in 2014 under a CC BY NC 3.0 Philippines licence.
Statutes, Issuances and Court Decisions are the copyright works of
the Philippine Government.
68

International Examples (cont’d)
• The Austrian government in 2012 launched an open data portal with
much of its data available under CC BY.
• Italian Ministry of Education, University and Research launched its
Open Data portal which makes much of its data available under CC BY.
• Italian Chamber of Deputies had developed a platform for publishing
linked open data under CC BY SA.
69

Further reading
• CC and Government Guide: Using Creative Commons 3.0 Australia Licences on
Government Copyright Materials, Anne Fitzgerald, Neale Hooper and Cheryl Foong,
available at
http://eprints.qut.edu.au/38364/20/CC_and_Govt_Guide_v3.2_110316_Final.pdf
• Explainer: Creative Commons, Anne Fitzgerald and Neale Hooper, The Conversation, 19
December 2013, available at http://theconversation.com/explainer-creative-commons-
21341
• Budget Papers are free to share, thanks to Creative Commons, Anne Fitzgerald and Neale
Hooper, The Conversation, 26 May 2014, available at
http://theconversation.com/budget-papers-are-free-to-share-thanks-to-creative-
commons-26900
• Various articles on CC licences and Government at
http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html
• http://eprints.qut.edu.au/32117/
• http://eprints.qut.edu.au/29773/
• Creative Commons Australia website at http://creativecommons.org.au
• Slideshare at http://www.slideshare.net/ccaustralia
70

Presenter Information
• Dr Anne Fitzgerald BSW (Qld) LLB (Hons) Grad Dip Welfare Law (Tas.) LLM (Lond.) LLM (Columbia, NY) JSD
(Columbia, NY), Barrister (Qld) is an intellectual property and e-commerce lawyer. Anne graduated in Law
from the University of Tasmania and holds postgraduate qualifications from University College London and
Columbia University (New York). Anne has served terms as a member of the Advisory Council on Intellectual
Property (ACIP) and the Copyright Law Review Committee’s Expert Advisory Group, and was a consultant to
the Venturous Australia review of Australia's innovation system. She led Creative Commons Australia’s
engagement with government, overseeing the adoption of CC licences as the default copyright licence for
public sector materials by the Commonwealth and several State governments. Anne has published widely on
intellectual property and internet law. Her latest major (co-authored) book is Internet and E-commerce Law,
Business and Policy, Thomson Reuters, Sydney (2011).
• afitzgerald@lawyer.com
• #AnneMFitzgerald
• QUT ePrints at http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html
• Neale Hooper BA LLB LLM (Qld) is a legal consultant and former Principal Lawyer in the Intellectual Property
and Technology Law team in the Queensland Crown Law Office. Neale holds undergraduate and graduate
degrees in Law from the University of Queensland. He has considerable experience as a legal practitioner,
consultant and researcher in the area of intellectual property and innovation law, and technology
commercialisation. From 2005, Neale has been centrally involved with Creative Commons Australia and has
played a leading role in the implementation of Creative Commons licensing – particularly in the government
sector – as well as the revision and ongoing management of the licences.
• nhooper@lawyer.com
• QUT ePrints at http://eprints.qut.edu.au/view/person/Hooper,_Neale.html
71

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