Yay! IT law now has it’s own wiki, the appropriately named: The IT Law Wiki. Professor Michael D. Scott, of Southwestern Law School, and author of the Singularity blog, initiated the wiki. The wiki, less than a month old, already contains 591 entries, on subjects such as the CAN-SPAM Act, chronologies of events from the 1960’s onwards, and on open source and closed source.

Actually, the above examples show three things. One, many entries are as yet stubs and need expanding. Two, the wiki appears under-organized (as in, spontaneously organized), which should resolve over time and whereby the individual entries should also become more valuable. Three, the current bias of the wiki to U.S. law. This is not the fault of the U.S. authors, and in fact only something contributors from outside the United States can remedy. It’s also the users that can remedy the first and second points mentioned.

So please, go over to itlaw.wikia.com, look around, get a feel for the place, and see where you can give and take information.

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Screen grab from the IT Law Wiki.)

After looking at the possibility of using non-copyrighted digital reproductions of public domain works last month, this (and next) month TLC will take a detailed look at choosing a suitable (Creative Commons) license for the Japan book. Since I want to account for the possibility to use additional (CC-licensed) art-work from third-parties, I have to take some extra care that the terms of the out-license (the license applicable to the entire work, including my original works) are not incompatible with the in-licenses (applicable to the art of others), and the other way around.

As it will become clear that Creative Commons licenses know a few drawbacks, I will first highlight what the possible reasons for using a CC-license in the first place are. After then describing the different possible uses and distribution methods for which I want to allow now and in the future, we’ll dive right into the different Creative Commons license options (modules), hopefully resurfacing on the other end with a license that fits the purpose.

(Because of the length, this topic will be split into two post, one this month, one next month.)

Why a CC License?

The short answer to why you would want to use a CC license is that they are popular.

The long answer is that they are popular because they are generally permissive, giving others a great degree of liberty to use and re-use the content licensed, which can be appealing to creators. (In my case it is, as I am looking more for kudos/whuffie than money in what is essentially a hobby project. For my purposes, I am disregarding any loss-leading purposes or split revenue models for which you might want to use a permissive – CC or other – license.)

More importantly, the popularity of the Creative Commons licenses means that they are widely used, and like the GPL, many people will end up having a fair understanding of what they mean. Granted, there is a fair amount of discussion about CC concepts themselves and the specific meaning of particular license modules, such as the Non-Commercial (NC) module, previously discussed here on TLC. But, I think this discussion shows that people are invested in the Creative Commons licenses, and work towards a better understanding of the licenses, much like the GPL.

(A more practical point is that if you are looking at others using and reusing your work, applying a CC license, rather than a different permissive license, makes it easier to find your work given the familiarity with the licenses and the CC-focused tools and search options that exist.)

Consider Your Future Use

If I use only my own, original, content I can re-license the work under a less restrictive or more restrictive license depending on my needs, and choosing the right license from the outset is less important. That being said, as you can not revoke a CC license, re-licensing under a more restrictive license will only carry weight if you also control to some extent distribution and/or production of your work.

If I also use content of others, I must make sure that whatever license I end up applying, or would like to apply in the future, does not conflict, in whole or in part, with the license or licenses applicable to the works I use. Carving out or replacing those parts is likely to be a painstaking process. For example, if there is a chance that how I use the works could be seen as Commercial, for example because money changes hands for the hard-copy version, then I cannot use works licensed under a Non-Commercial license.

I also have to consider what kind of uses I would like to allow for, for example whether I will allow others to make derivative works, or distribute or re-use my works commercially. Again, if I use the content of others, I need to look at the terms that apply to those upstream works to make sure that they also allow for such future uses.

Mixing and (Mis) Matching the Licenses

The six major available CC licenses move on a sliding scale from permissive to restrictive (given that even the restrictive one is more permissive than all rights reserved), depending on the “modules” that apply. The order would be, from permissive to a little less so: CC By, CC By-SA, CC By-NC, CC By-ND, CC By-NC-SA, and CC By-NC-ND. (The By-NC-ND versions appears to be the default for many services, including, as it turns out, the Wordpress installation I am using at this blog, and at Flickr, the photo sharing site I use.)

Some CC licenses are incompatible. Consequently, I have to take care that when selecting works of others to use, I do not select works that carry a license that is incompatible with whatever license I would like to use now or in the future. The basic incompatibility is that of ND (No Derivatives) licenses with SA (Share Alike) licenses.

But can I use works that are originally license under a less restrictive license? What if, for example, I would like to license the Japan book under a By-SA license, can I then use works that are licensed under a By license? The licenses say:

You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License.

I think that, since the original work remains available under the By license, and I mention the original license terms for that work, I can license the entire resulting work under, say, a By-SA license.

The other way around is not possible. I cannot apply a By license to the resulting work, and use original works license under say a By-SA license, or a By-NC license.

So, basically, the licenses applicable to the works of third parties that I might use in the book need to be less restrictive than the license under which I would like to make the resulting entire work available. Luckily, not to get lost, there is a useful Creative Commons license compatibility wizard from Creative Commons Taiwan, I can heartily recommend it. (Creative Commons United States has not yet approved any compatibility between CC licenses.)

Now, let’s look at the different CC modules in more detail.

Call Me By Your Name (Attribution)

This is an attribute that all CC licenses share. It is simple, it requires attribution to the creator (or a group or institute since version 3.0). CC By is the simplest, and most permissive of all CC licenses, short of dedication to the public domain. However, you still need to take into account the moral rights / droit moral of the author. As the short version of the By 3.0 license mentions:

Nothing in this license impairs or restricts the author’s moral rights.

I am not sure what the moral rights of an author are in the United States, if any, but in The Netherlands, and from what I understand in most if not all continental European countries, they basically give the author, in addition to a right of attribution, a right of integrity (of the author). This later right allows the author to object to any distortion, mutilation, or other alteration (modification) of the work which might prejudice the honor or the reputation of the author as such.

Since version 3.0 of the licenses, there is, at least in the basic unported (more on that next month) version, a limited non-assert provision (covenant) whereby the author promises, for jurisdictions where adaptations are seen as conflicting with the moral rights of the author, not to assert such moral rights.

Final point. What is a sensible way of complying with the attribution requirement in the context of the book? The CC licenses require that, in addition to keeping intact copyright notices, I provide “reasonable to the medium or means” I use, the name (or pseudonym), name of the work, and “to the extent reasonably practicable” any URI pointing back to the copyright or license information. The URI pointing back would most commonly be a web page. I wonder how reasonably practical it is to provide a list of web addresses, reasonably practical I think.

Next Month: Commercial and Non-Commercial, No Derivatives and Share Alike, and Porting

That’s it for this month. Next month, TLC will look at the other available options, Commercial and Non-Commercial, No Derivatives and Share Alike, and jurisdiction specific (ported) licenses. Until next month!

‡‡ [This is a post from Technology Law Culture:http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Creative Commons License Buttons. See also http://creativecommons.org/policies/.)

When licensing-out content under a Creative Commons license, one of the options available is to only allow “Non-Commercial” (NC) use of your works under the CC license, the opposite being that you allow commercial use under the CC license. But what does Non-Commercial mean? Both when using Creative Commons Non-Commercial licensed content, as when releasing original content under a Non-Commercial Creative Commons license, it makes sense to stop a moment and think about what Non-Commercial might mean, for you as creator, and for the licensor or licensee. What “Non-Commercial” might exactly mean is a question that has been asked before.

In this month’s post, TLC will take a look at what Non-Commercial, as one of the possible options of CC licenses, might mean, and how we are likely to apply it when looking for open content to use in the Japan photography book project. After explaining a little as to why and how we are looking at this question, we’ll see that the Creative Commons license itself, although concise on this point of Non-Commercial, possibly leaves room for interpretation. Next month, so as not to make this post too long, we will explore how the explanations as given by Creative Commons, as the license stewards, and by others, although all very helpful, do not seem to completely eliminate the gray areas present. Finally, given that there is some amount of (legal) uncertainty as to what non-commercial might mean, we will briefly look at how parties deal with the ambiguity in the NC clause of CC licenses, namely by checking and asking, thereby adding to the transaction costs of using Creative Commons licensed material.

Why and When is This Question Relevant?

First, a few words on why TLC stops to look at the meaning of Non-Commercial, as used in Creative Commons licenses, in the context of the Japan photography book project. First, in the book, pictures sourced from third-party sources will likely be used in the background design, in true digital DIY fashion, even where my own pictures are the main focus. Second, I am likely to use a print-on-demand (PoD) service for production and distribution, which means that at one point the book will be available through a public Internet market place, although I will most likely not make any money of it. (One of the main reasons this project came about is that iPhoto books and similar services allow for limited design freedom and become expensive quickly when above the standard number of pages. All I wanted were some cheap and nice looking books to give away ^^.)

So, as I am looking to incorporate content from others into a work that is to be made publicly available at a fee, it becomes relevant whether I should look only to use pictures of which the Creative Commons license allows for commercial use, or whether, since I am not likely to make any money of the book and it is in fact not my purpose or intent to make money of the book, I can also use images that use a Non-Commercial Creative Commons license. Important to note here is that more works are licensed under NC clauses; perhaps because it is sometimes the default for content hosting services that offer the option of applying a CC license.

Thus, when making a book incorporating Creative Commons licensed works available via a public Internet store front, would I be allowed to use works licensed under Non-Commercial Creative Commons terms? (What also comes into play is that my intention was to offer the entire book design, and my own pictures in it under a NC license, in which case I had to make sure that I could also include NC licensed work from others. And, as I might be making derivative works, I might have to share the results alike if source material were license under a share-alike (SA) license; but that is another question.)

What the License Says: Intent and Direction

The human-readable, or short, explanation of the Non-Commercial attribute (in this case, as part of the BY-NC 3.0 license) that Creative Commons gives is:

Noncommercial. You may not use this work for commercial purposes.

The actual license, or the non-human/lawyer readable code, says under 4.b that you may not use the licensed work:

[…] in any manner that is primarily intended [emph. added] for or directed toward commercial advantage [emph. added] or private monetary compensation [emph. added]. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

The explanation of Creative Commons, when picking a license, says:

The licensor permits others to copy, distribute and transmit the work. In return, licensees may not use the work for commercial purposes — unless they get the licensor’s permission.

And in the FAQ, under “Can I still make money from a work I make available under a Creative Commons license?“:

However, you, the creator of the work and/or licensor, may at any time decide to use it commercially. People who want to copy or adapt your work, “primarily for monetary compensation or financial gain” must get your separate permission first.

One thing to note on the noncommercial provision: under current U.S. law, file-sharing or the trading of works online is considered a commercial use — even if no money changes hands. Because we believe that file-sharing, used properly, is a powerful tool for distribution and education, all Creative Commons licenses contain a special exception for file-sharing. The trading of works online is not a commercial use, under our documents, provided it is not done for monetary gain.

That is it for the source material. Now what do people think this means?

Next Month: What the License Stewards and Others Say, and How To Apply It All in a Practical Manner

So as not to let this post run too long, next month we will take a look at what the CC license stewards, such as (former) Creative Commons General Counsel Mia Garlick, had to say on the matter, whether or not others agree with their point of view, and how people are dealing with the existing uncertainty on this point in practice. We’ll see how, in part, the way to deal with the license ambiguity is to ask for explicit permission to use a work in a particular context. In my opinion, this takes away one of the main (intended) benefits) of CC license, namely semi-automated (and machine readable and possibly machine enforceable) licenses. Until next month!

‡‡ [This is a post from Technology Law Culture: http://tlc.oosterbaan.net/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture by: Screen grab from the CC search function of Flickr.)