DOKK Library

Open Content - A Practical Guide to Using Creative Commons Licences

Authors Dr. Till Kreutzer

License CC-BY-4.0

        Dr. Till Kreutzer

     Open Content –
  A practical guide to
using Creative Commons


    Imprint                                                       Neither the German Commission for UNESCO, North
    „Open Content - A Practical Guide to Using                    Rhine-Westphalian Library Service Centre nor Wikimedia
    Creative Commons Licences“                                    Deutschland is responsible for the use which might be
    Dr. Till Kreutzer                                             made of the following information. The opinions ex-
                                                                  pressed and arguments employed herein are the sole res-
    Publishers:                                                   ponsibility of the author and do not necessarily reflect the
                                                                  views of the German Commission for UNESCO, North
    German Commission for UNESCO                                  Rhine-Westphalian Library Service Centre or Wikimedia
    Colmantstraße 15                                              Deutschland.
    53115 Bonn, Germany                                         Photo Credits
                                                                  Hot-air balloon
    North Rhine-Westphalian Library Service Centre (hbz)          Benh LIEU SONG (
    Jülicher Straße 6                                             File: Cappadocia_Balloon_Inflating_Wikimedia_
    50674 Köln, Germany                                           Commons.jpg), „Cappadocia Balloon Inflating Wikimedia                                           Commons“, cropped by Markus Büsges, http://creative-                                      

    Wikimedia Deutschland -                                       Saint Petersburg Mosque
    Gesellschaft zur Förderung Freien Wissens e. V.               Canes (
    Tempelhofer Ufer 23-24                                        Мечеть_Санкт-Петербурга._Майолика_портала.jpg),
    10963 Berlin, Germany                                         „Мечеть Санкт-Петербурга. Майолика портала“, cropped                                             by Markus Büsges,                                              by-sa/3.0/legalcode/

    Editing (responsible):                                        Galileo Galilei planetarium
    Jan Engelmann (Wikimedia Deutschland e. V.),                  Emmanuel Iarussi (
    Sonja Mühlenfeld (German Commission for UNESCO),              File:Planetario_de_la_Ciudad_de_Buenos_Aires.jpg),
    Jan Neumann (North Rhine-Westphalian Library                  „Planetario de la Ciudad de Buenos Aires“, cropped by
    Service Centre)                                               Markus Büsges,
    Editing and co-ordination:
    Sarah Kraus (German Commission for UNESCO),                   Ice flower
    Katja Ullrich (Wikimedia Deutschland e. V.)                   Annick MONNIER (
                                                                  File:Fleur_de_givre_L.jpg), „Fleur de givre L“, cropped by
    Proofreading:                                                 Markus Büsges,
    Sylvia F. Jakob, Germany                                      by-sa/3.0/legalcode/

    Layout and typesetting:                                       Friendship plant
    Markus Büsges, leomaria designbüro, Germany                   Poco a poco (               File:Pilea_involucrata,_Jardín_Botánico,_Múnich,_
    legalcode                                                     Alemania_2012-04-21,_DD_02.jpg), „Pilea involuc-
                                                                  rata, Jardín Botánico, Múnich, Alemania 2012-04-21,
    Printing:                                                     DD 02“, cropped by Markus Büsges, http://creative-
    Laserline, Germany                                  

    Print run: 4,000                                              Scarab beetle
    ISBN: 978-3-940785-57-2                                       Museum für Naturkunde Berlin (http://commons.
    The text of this work is licenced under the Creative Com-     Dynastinae_D185.jpg), „MFNB Col Scarabaeidae
    mons Attribution 4.0 International Licence. To view a copy    Dynastinae D185“, cropped, coloured, saturated and
    of this licence, visit   vignetted by Markus Büsges, http://creativecommons.
    by/4.0/.                                                      org/licenses/by/4.0/legalcode/

    This picture of a hot-air balloon was one of the finalists
    of the “Picture of the Year” competition on the free
    media archive Wikimedia Commons in 2011. With its
    more than 20 million pictures, videos, graphics and
    audio files, Wikimedia Commons is the biggest online
    media archive for Open Content.

Editors’ preface

“All rights reserved” is the phrase usually associated with traditional copyright. It implies
that the copyright holder reserves all rights by default. Neither copying and distributing nor
creating derivative works is permitted without the explicit permission of the rights holder.

“Some rights reserved,” the guiding principle of open content licences, is the answer to
this problem: Open content enables creators and rights holders to spread their work more
easily – by enabling others to use, share and mix their work without the need to ask in
advance. Artists may use available music or pictures to create own remixes. NGOs may
choose to make texts and graphics on their website more easily available to others. People
looking for pictures, for example to illustrate websites or publications, may find open con-
tent works in the respective databases. Numerous projects are becoming feasible every day
through the “unlocking” and opening of content to the world. People are constantly creat-
ing public goods by sharing and building upon each other’s knowledge and creativity.

Open content thus serves as an invaluable tool for two important purposes: It makes copy-
right compatible with the digital age – where each user of content can easily become a
creator. At the same time, it makes access to information and knowledge much easier. In
our globalised world, this is becoming more and more important. Access to information
and knowledge is one of the cornerstones of modern knowledge societies.

With this publication, we intend to provide interested individuals and organisations with
practical guidelines for the use and application of open content licences: How do open
content licences work? How do I choose the most suitable licence for my individual needs?
Where can I find open content online? These are only some of the questions which these
guidelines try to answer. By this, we hope to contribute to the informed use of open con-
tent licences. We thank Dr. Till Kreutzer for writing these valuable guidelines and would
like to wish all our readers an informative and instructive reading.

Dr. Roland Bernecker,
German Commission for UNESCO

Jan Engelmann,
Executive Director,
Wikimedia Deutschland e.V.

Dr. Silke Schomburg,
Head of hbz, North Rhine-Westphalian
Library Service Centre (hbz)

Table of contents

1. 	Introduction: From theory to practice                               7
2.   The basics of Open Content licencing                             11
2.1 	Background                                                       12
2.2 Different Open Content licence models                             13
2.3 The benefits of Open Content licencing                            13
2.4 	Legal aspects and practical implications of
     Open Content licencing                                           16
3.   The Creative Commons licencing scheme                            27
3.1 Overview of the six Creative Commons licence types                28
3.2 Creative Commons public domain tools                              31
3.3 	Generic and ported licence versions                              32
3.4 	Licence conditions, user obligations and restrictions
     relevant for all Creative Commons licences                       34
3.5 Additional licence-specific restrictions and obligations          43
4. 	Practical Guidelines: Using Creative Commons licences             63
4.1 Choosing the “right” licence                                      64
4.2 	Generating the licence                                           64
4.3 Attaching Creative Commons licences to different works            68
4.4 Finding Open Content online                                       70
5.   Final remarks                                                    75

Subject index                                                         77

                                                         Table of Contents   5
6   Introduction
                              1.	Introduction:
                                 From theory to

In 2011, this picture of the interior of the
Saint Petersburg Mosque was deemed one
of the best pictures uploaded to the online
media archive Wikimedia Commons.

                                               Introduction   7
                                         The principle of Open Content licencing
                                         was invented to facilitate the use and distri-
                                         bution of copyright-protected works. Copy-
                                         right is a rather restrictive regime which
                                         grants a series of exclusive rights to the
                                         copyright holder, including the right to
                                         distribute or modify a work. These acts
                                         cannot be undertaken without specific per-
                                         mission from the right holder.
                                              Notwithstanding, there are certain
                                         types of uses which can be undertaken
                                         without permission. These are known as
                                                                 “limitations” or “ex-
                   Open Content promotes                         ceptions” to the exclu-
                                                                 sive rights, which
                   the development of a digital                  include, for example,
                   commons.                                      the right to quote from
                                                                 a work or to make a
                                         private copy. But these limitations are not
                                         very broad and at times difficult to assess.
                                              The inventors of the Open Content idea
                                         considered the copyright regime as too
                                         restrictive for both users and creators alike.
                                         Therefore, they decided to establish a sys-
                                         tem of easy-to-use standard licences (i.e.
                                         rules that allow the use of copyright-pro-
                                         tected works under certain conditions) in
                                         order to promote a free culture and the
                   The Digital Com-      development of a digital commons. Nowa-
                   mons are a kind of
                   commons involving the
                                         days, millions of copyright-protected works
                   production and shared are published online under Open Content
                   ownership of digital
                                         licences, including movies, music, images,
                                         texts and graphics which can be used, dis-
                                         tributed, made available, modified or re-
                                         mixed by anybody without explicit consent
                                         from the copyright holder or the payment
                                         of a licence fee. It is thus fair to say: The
                                         digital commons became a reality within
                                         the last decade.

                                           The Open Content Model relies on three
                                           basic principles:

                                           1.   The simplification of legal transactions:
                                                The Open Content licences are pub-
                                                lished online and can be used by any
                                                interested creator or other rights owner.

8   Introduction
    They provide rights owners with a tool      Content concept from the public domain:
    that allows them to conclude legally        Open Content is neither free (of copyrights)
    binding agreements with anybody who         nor can it be used without permission or
    is interested in using their work. Unlike   rules. It is protected by copyright law and
    in the usual legal (contractual) transac-   can be used only subject to the conditions
    tion, there is no need for the parties –    of the legally binding licence the rights
    i.e. licenser (right holder) and licensee   owner chooses for their work. Therefore,
    (user) – to contact each other via other    public licencing is neither a political nor a
    means.                                      legal statement about Intellectual Property   Intellectual Prop-
                                                                                              erty Rights (IPR) are
                                                Rights (IPR) nor does the concept challenge
                                                                                              all exclusive rights
2. The granting of a broad, royalty-free        the IPR system. Public licencing is rather a  granted to the creators
   permission to use: The user is allowed       concept that facilitates the handling of      of intangible goods, e.g.
                                                                                              songs, texts or inven-
   to use the work freely for most pur-         copyright protected works for the benefit of  tions. IPRs include
   poses. In fact, the user’s rights to use     rights owners and users alike.                copyright, trademarks or
   the content are much wider than the               This guide was written to facilitate the
   exceptions envisaged under conven-           legitimate and correct use of Open Content
   tional copyright law. All rights are         and Open Content licences. It was written
   granted without costs. The right holder,     for anyone wishing to learn more about
   on the other hand, can choose among a        Open Content, particularly for creators,
   variety of licences ranging from very        companies, organisa-
   restrictive to very permissive ones,         tions and private us-      The principle of “some
   allowing them to decide which rights         ers, and not so much
                                                                           rights reserved” benefits
   are granted freely and which are             for legal experts. Its
   reserved for individual agreements.          aim is to keep infor-      rights owners and users alike.
                                                mation and language
3. The reduction of legal uncertainties:        simple. This requires a balancing act
   Both users and right holders benefit         between simplicity and professional preci-
   from the simplicity of the licences, as      sion which, hopefully, has been achieved in
   the legal regime they implement is           the present publication. Feedback and fur-
   considerably less complex than copy-         ther suggestions to the author are always
   right law itself. The benefit for the        welcome.
   licenser consists in being able to tell           Please note that this guide was pub-
   their users in a plain and standardised      lished to provide general information and
   language what they can and what they         to answer common questions about Open
   cannot do with the work. Rules that are      Content licencing, in some cases reflecting
   understood are more likely to be             the author’s personal opinion only. It is not
   obeyed. The user, on the other hand,         intended to constitute or be a substitute for
   knows what they are allowed to do and        legal advice. Those seeking legal advice on
   can easily understand the obligations.       a particular case are advised to consult a
The guiding principle of the Open Content
idea is “some rights reserved.” It was con-
ceived in contrast to the traditional copy-
right caveat “all rights reserved” which
may be found on many CDs, books or maga-
zines. At the same time, the “some rights
reserved” principle marks off the Open

                                                                                  Introduction                       9
10   2. The basics of Open Content licencing
                             2. The basics of Open
                                Content licencing

In 2012, this picture of the Galileo Galilei
planetarium in Buenoes Aires was one of the
finalists of the biggest photo competition
“Wiki Loves Monuments” which takes place
every year and is dedicated to cultural
heritage monuments. Every September,
thousands of volunteers take pictures of
cultural heritage sites around the world and
upload them to the online media archive
Wikimedia Commons.

                                               2. The basics of Open Content licencing   11
                            2.1 Background                                 Creative Commons licences are not based
                                                                           on or lead to the public domain.1 On the
                            The Open Content principle is based on the     contrary, they depend on effective copy-
                            ideas of the Free and Open Source Soft-        right protection. Without copyright, the
                            ware (FOSS) movement. The Open Source          licence could not be effective, especially
                            approach was established in the software       not when it comes to the enforcement of the
                            market in the 1990s, mainly resulting from     licence obligations.2
                            the great success of GNU-Linux and its             Licencing means to grant a third party
                            licence, the GNU General Public License        (anyone else except the right holder) the
                            (GPL). Written in 1989, the GPL was the        right to use a copyright-protected work.
                            first free software licence, which allowed     The licence is, however, granted only under
                            users to use, study, share and modify the      certain conditions and obligations on the
                            software. Today, entire markets are based      user's side. Open Content licences may,
                            on the development, maintenance, customi-      for example, oblige the licensee to credit
                            sation and marketing of Open Source Soft-      the author with every use. This relation
                            ware. The inventors of the Open Content        between right and obligation could be
                            principle adopted the basic ideas of FOSS      expressed as: “You are allowed to republish
                            and applied them to other forms of creative    this work under the condition that you
                            contributions, such as music, films or images. name the author.”
                                The main protagonist of the Open Con-          Open Content licences are generally
                            tent movement was Lawrence Lessig, a           suitable for every kind of creative work.
                            legal scholar of Harvard Law School in         The CC licences are generic licences which
                            Cambridge, USA. In 2001, he joined forces      can be used for music, films, texts, images
                            with Hal Abelson and Eric Eldred and           and any other aesthetic creation. However,
Creative Commons            founded the Creative Commons (CC) ini-         they are not designated to licence software.
is the non-profit organi-
                            tiative to promote the digital commons.        As technical products, computer pro-
sation dedicated to
making creative works       CC’s aim was to encour-                                                  grammes require
available to the public.    age and enable creators Open Content licences not                        different licence
To that end, it has
                            to open their works for                                                  conditions. In fact,
released a number of
copyright licences to be
                                                         only serve the interest of the
                            general use without                                                      there are specific
                            having to rely on costly author but also of the public.
used by the public.
                                                                                                     licences available
                            and complex legal                                                        for software, such
                            advice or having to donate their rights to     as the abovementioned Open Source licenc-
                            the public domain. For this purpose, CC        es. Also, there are special licences for other
                            designed and published a variety of differ-    technical creations such as databases.3
                            ent licences which are easy to handle by the       Open Content is sometimes referred to
                            licensers and easy to observe by the users.    as an anti-copyright approach. This is,
                            In addition, the initiative offers useful      however, not true. It is a model for right
                            information and a number of tools on its       holders to manage their copyright in a
                            website, which can be used by anybody          specific way. Open Content does not oppose
                            free of charge.                                copyright per se, but allows a licenser to
                                The underlying philosophy aside, Open      take a different approach to the traditional
                            Content is a licencing model that is based     “all rights reserved” approach. Open
                            on copyright law. Copyright-protected          Content licences are tools which can be
                            works are made available to the public for     employed in order to serve both: the indi-
                            the by and large free and unhindered use.      vidual interest of the author and the public
                            Being a licencing scheme, however, the         interest. It is, however, for each copyright

12                          2. The basics of Open Content licencing
owner to decide whether Open Content            uted under proprietary licence schemes.
licences suit their personal needs.             This, in turn, could oppose the intentions of
                                                the original creator.7
2.2 Different Open
    Content licence                             2.3 The benefits of
    Models                                          Open Content
Unlike Free and Open Source Software,4
the term “Open Content” is not precisely        Using an Open Content licence has several
defined, i.e. there is no commonly agreed       benefits. Besides the possibility of a much
definition.5 This allows for a great variety    broader distribution of a work, it also in-
of diverging licences. In this publication,     creases legal certainty for users and signifi-
Open Content licences (also known as            cantly decreases legal transaction costs.
“public licences”) are assumed to be stand-
ard licences that allow the licensee at least   a)	Broad distribution
to distribute, make publicly available and
reproduce a work for non-commercial             The main objective of Open Content licenc-
purposes in any way and on any media free       ing is to allow for a broad distribution.
of charge.6 Needless to say, more permis-       Distribution is encouraged by granting
sive Open Content licences that allow, for      more or less unlimited distribution rights
example, to make and publish derivative         and rights which entitle the licensee to
works or to encourage commercial uses are       share the content. This is an essential pre-
also covered by this definition.                condition for legiti-
    Major differences between the various       mate sharing, as         Open Content licences
licences ensue when it comes to the question    copyright law, at
                                                                         automatically establish a
of using the work creatively, i.e. making       least in Europe, does
modifications and distributing the modified     not provide for a        licence grant between author
versions or using the work for commercial       right to publicly
                                                                         and users.
purposes. Whereas some licences allow for       share protected
the modification, translation, updating,        content without the right holder’s explicit
remixing or customising of a work, others       consent. This applies equally to both online
do not. Among those that allow modifica-        and offline sharing. Open Content licences
tions, some follow the “copyleft principle,”    allow the users to upload the work on        The Copyleft princi-
                                                                                             ple aims to make
also known as ShareAlike (SA). Such claus-      websites, blogs or any other web publica-
                                                                                             creative works available
es oblige the author of a modified version of   tion. They also allow the production of      to the public by requiring
an Open Content work to make it available       hardcopies of the work in any form, such as  that all modified and
                                                                                             adapted versions of the
under the same licence as the original          photocopies, CDs or books, and the distri-   original be free as well.
author. If somebody modifies the work and       bution of these copies to anybody without
publishes the new version, they have to         any restriction.
grant their users the very same freedoms            The positive effect on the work’s poten-
that applied to the original work. The idea     tial publicity should not be underestimated.
behind this principle is simple: An Open        Without an Open Content licence, the
Content work shall remain open in all its       sharing of a work, for instance, via another
manifestations and versions. Without the        online source would require an individual
ShareAlike obligation, modified versions of     contractual agreement between the sharer
the work could be published and distrib-        and the right holder. The same would apply

                                                             2. The basics of Open Content licencing               13
                             when somebody would like to modify,            This, in turn, may have a positive impact on
                             remix or mash up a work with other works       the author’s popularity and the demand for
                             and to publish the modified version: Under     their works. However, it also brings about
                             copyright law all these uses are subject to    potential economic benefits: Attention is a
                             the individual consent of the right holder.    scarce resource in the attention economy8
                             The licence grant of an Open Content licence,  which is so dominant in the digital age. In
                             by contrast, is established automatically.     fact, attention is an essential economic
                                 By facilitating the required legal trans-  factor: Attention leads to clicks; clicks lead
                             actions, Open Content licences not only        to advertising revenues and/or increased
                             serve the interests of the                                            recognition; increased
                             authors, but also those of    Free    and   Open  Content       is    recognition leads to
                             the general public. In                                                higher demand and
                                                           not synonymous with cost-
                             fact, authors and users                                               higher payment rates or
                             benefit from the increas- free but with free-to-use.                  salaries. Especially on
                             ing number of interesting                                             the Internet, more
                             creative contents that can be accessed and     freedoms for the users and less control will
                             used for many different purposes without       often lead to higher revenues than “all
                             having to pay remuneration. In other           rights reserved” paradigms.
                             words, they benefit from the ever-growing          In order to understand the whole effect
                             “cultural commons” that is available for       of this concept, it is essential not to confuse
                             reception and/or creative use without com-     the term “open” with “cost-free” or “non-
                             plex individual contractual proceedings.       commercial”. Free as in Free Software as
Open content                     The public interest factor might or might  well as open in Open Source or Open
describes works that are
                             not create incentives for authors to open      Content, is not equivalent to “cost-free”
available under a free
licence and which can be     their works. It may, however, be said that     but to “free-to-use”. Public licencing strives
used and re-destributed      Open Content is especially relevant for        to provide users with the necessary rights
under certain conditions
as detailed in the licence   public authorities which own copyrights in     to use copyright-protected content in the
text.                        creative contents, as they produce and         way they want to. Subject to the conditions
                             publish works for the public interest and not  contained in the public licences, they are
                             for commercial purposes. As the costs for      free to use the content, i.e. to copy, distrib-
                             the creation and publication of said works     ute and make it publicly available. In addi-
                             are mostly borne by the taxpayers, Open        tion, there is no requirement to pay licenc-
                             Content publication strategies are particu-    ing fees. This additional paradigm: freedom
                             larly recommended for public authorities.      of royalties (i.e. licencing fees) is supposed
                                 Also, from the perspective of private      to support the freedom to use. Without it,
                             right holders, the Open Content approach is    many people would be excluded from the
                             not necessarily first and foremost an altru-   use, because they could not afford to pay
                             istic one. Otherwise it would not be so        the royalties.
                             successful. Open Content enables sharing,          However, this paradigm does not neces-
                             thereby decentralizing and disseminating       sarily mean that Open Content must be
                             the sources. This is often more beneficial     available free of charge or can only be
                             for the author than a restrictive distribution exploited non-commercially; nor does it
                             concept, such as “all rights reserved”. If the mean that a creator or a publisher cannot
                             content is interesting enough to encourage     make money by making it available to the
                             other people to share it, it will be listed    public. If this was the case, the Open
                             more prominently in the search engines,        Source industry could not exist.9
                             thus, gaining even more publicity.

14                           2. The basics of Open Content licencing
b)	Increased legal certainty                      control, is not necessarily a bad thing, but
	and simplification of legal                      a feature of public licencing. In fact, the
	transactions                                     notion of being in total control of the use
                                                  of content is deceptive in most cases, espe-
Open Content licences enhance legal trans-        cially concerning internet publications,
parency and certainty for both users and          irrespective of whether one applies an
right holders alike. Copyright is a complex       “all rights reserved” or a “some rights
matter: A legal layperson can barely figure       reserved” approach. Once an article, image
out under what circumstances a work can           or poem is made available online, the con-
be legally copied for private use, made           trol over the use usually vanishes. In other
available for educational purposes or quot-       words, the more popular the content
ed. By contrast, Open Content licences, e.g.      becomes, the more difficult it becomes to
CC licences, offer an explanation in plain        control it effectively. It will be shared on
language to inform the licensee what they         the Internet, whether it is legal or not,
can do, which obligations they have to            unless drastic measures are taken - such
comply with and what they should refrain          as rigid Technical Protection Measures        Technical Protec-
                                                                                                tion Measures
from doing. These explanations are also           (TPM)/Digital Rights Management (DRM)
                                                                                                are a means to prevent
beneficial for the licenser, who is generally     or an extensive strategy for rights enforce-  copyright infringing
not a legal expert (especially not if it is the   ment which requires the engagement of         reproductions or usages
                                                                                                of creative works.
author themselves) and who in this way            lawyers, piracy agencies or other invasive
gets all necessary information regarding          methods.
the rules for using the material.                     The crucial decision about having or not
    A further important benefit of Open           having control is therefore inherently a
Content licences is the simplification of the     question of going or not going online. Once
legal transaction between the owner and           a small scale creator decides to upload their
the user. Open Content licences are stand-        work on a publicly
ardised tools which keep such transactions        accessible website         Content will always be
simple for both sides. Drafting and negoti-       (for large enterprises shared over the Internet.
ating individual licence contracts is a com-      this might be differ-
plex matter which usually requires the            ent), it is a logical      Open Content licences
involvement of lawyers. Donating copy-            next step to publish
                                                                             provide a legal framework.
right-protected works to the commons in           it under a public
an international environment (the Internet)       licence. It cannot be denied that there will
is even more complex. Open Content                probably be people who break the rules and
licences free the creator and other right         will neither comply with copyright law nor
holders from these complexities. Notably,         the Open Content licence. However, for the
the licence texts published by large initia-      many considerate users who are over-
tives such as CC are thoroughly drafted by        whelmed by the complexity of copyright
legal experts and then made available free        law, the licence not only provides freedom
of charge for the use of interested parties.      but also guidance.
                                                      Most people are willing to comply with
c) Deliberately giving up                         the law, but without understandable infor-
	control                                          mation about the rules, they are doomed to
                                                  fail. Is it allowed to download online con-
Open Content licencing requires the will to       tent, to share it, to print it, to embed it?
deliberately give up control over the use of      With regards to copyright law, most users
one's work. Having no, or only very limited       will not be able to answer these questions.

                                                               2. The basics of Open Content licencing              15
     The Open Content licence, on the other       This means, for example that a novel pub-
     hand, instructs the user about such prob-    lished under a public licence can be copied
     lems by keeping the answers short and        at will, in digital or non-digital form. It can
     simple. It might, for instance, state: “You  be scanned or otherwise digitalised, up-
     can use the content in any way you want,     loaded on servers, saved on hard-drives or
     provided that you comply with the licence    downloaded. In terms of copyright, all
     obligations.” In other words, the licence    these uses are referred to as “reproduc-
     obligations are made clear in a way the user tions.” The work might also be printed and
     can understand and comply with. The          (re-)distributed, e.g. as a book, eBook or
     resulting legal certainty not only benefits  made publicly available on the Internet.
     the right holders but also the users.        Music may be performed publicly; poems
                                                  may be recited and plays enacted.
     2.4 Legal aspects and                            Open Content licences are intended to
                                                  facilitate the use of protected works, no
            practical implica-                    matter where their use takes place geo-
            tions of Open                         graphically. This has been taken into con-
            Content licencing                     sideration in the drafting of the licences:
                                                  Due to their non-discriminatory nature,
     The following section describes in detail    they are intended to be applicable on a
     how an Open Content licence functions in     worldwide10 basis.
     general and what some of its practical           Also, the rights are granted without
     implications are. These aspects are usually  remuneration or any other form of consid-
     relevant for all types of Open Content       eration. That does, however, not necessarily
     licences. For more information on specific   mean that the acquisition of a copy or the
     licence types, please refer to chapters 3    access to the work is free of charge (see
     and 4.                                       chapter 2.4, section c below), although this
                                                  is usually the case.
     a) Comprehensive scope of the                    Reserved rights come into play when a
         licence grant                            work is licenced under a public licence
                                                  which does not cover, for instance, the right
     As already mentioned, Open Content is        to modify a work and to distribute these
     based on the “some rights reserved” para-    modifications. Anyone wishing to engage in
     digm. Whereas most of the rights to use a    these “reserved rights,” needs to enter into
     work are licenced and thus permitted, some   an individual licencing contract with the
     are reserved.                                right holder. Authors, for example, may
         Open Content licences thus offer any     decide to use a non-commercial licence to
     interested user the opportunity to obtain    be able to decide about commercial uses on
     broad rights to use the                                             a case-by-case basis and
     content in any way, for      Open Content licences                  to claim royalties when
     any purpose, on any                                                 somebody wants to
     medium, everywhere and       are  compatible    with   com-         realize a profit using
     without geographical or      mercial business models. their works. Should a
     temporal restrictions.                                              licenser decide to
     Nonetheless, there may be restrictions       choose a restrictive licence (e.g. a non-com-
     (depending on what kind of licence is appli- mercial licence), this does not necessarily
     cable) on commercial uses or modifications   mean that they are opposed to uses that are
     and transformations.                         outside the scope of the public licence grant.

16   2. The basics of Open Content licencing
Such uses are not prohibited per se, but are      gets hold of a high-resolution copy, they can
subject to an additional agreement with the       share it under the terms of the CC licence
right holder.                                     under which the low-resolution copy was
b) Applicability to all copies
	of a work                                        c)	No royalties

A public licence always applies to one par-       All Open Content licences follow the para-
ticular work and not to a certain copy of         digm of “no royalties.” No royalties means
that work. A work is an intangible creation       that the rights to use the work are granted
which expresses the author’s individuality.       free of charge. It does not, however, affect
Photos, texts, music compositions or graphic      any other possible sources of income. An
designs are works. A music or image file, a       example: The content of a book, i.e. the
book or a journal are only tangible embodi-       articles, images, illustrations etc., can be
ments of the work but not the work itself.        Open Content although the book itself is
    For the licencing decision, it is important   sold. In this case, the buyer only pays the
to know that the licence applies to the work      price for the physical hardcopy, in other
and not to a particular copy of that work.        words, the price for the acquisition of the
If one was not aware of the difference            physical good, i.e.
between a work and a copy, wrong assump-          the paper, the cover      Rights-owners need to hold
tions about the effect of licencing might be      and so on. The Open
made.                                             Content licence           exclusive rights of their content
    It is, for instance, a widespread practice    applies to the content in order to use a public licence.
to freely share image files of low-resolution     of the book, i.e. to the
or low-quality music files under an Open          use of the copyright-protected works. It
Content licence with the intention and            grants a user the rights to copy, distribute
belief that the rights in high-resolution         and make the work available without hav-
versions of the same image or music pro-          ing to pay any royalties or licencing fees.
duction are not covered by the licence and            Take another example from the online
can still be exploited commercially. This         world: The access to an Open Content
strategy is based on the wrong assumption         online repository can be subject to fees,
that the licence only applies to the low-         whereas the provided articles are published
resolution copy of the work. However, it is       under a public licence. In this case, the
not the respective copy of the work which         subscription fee is charged for the service,
is licenced, but the work itself. The licence     not for the rights to use the content.
applies to all kinds of copies of the image,      The subscription is therefore no royalty;
irrespective of their quality. Low-resolution     demanding it does not conflict with the
and high-resolution versions of a photo do        “no royalties”-paradigm.
not constitute different works but only               Against this background, commercial
different formats of the same work.               business models can easily be reconciled
    In other words: If low-quality copies are     with the Open Content idea. Anybody who
shared under an Open Content licence, the         wants to combine an Open Content publica-
licence also applies to high-quality copies of    tion strategy with a commercial business
the same work. Hence, it might be possible        model is free to do so. Whether this is
to restrict the access to high-resolution         actually feasible has to be assessed on a
copies by paywalls or other technical pro-        case-by-case basis paying due regard to
tection measures. However, once a user            the particularities of the respective case.

                                                               2. The basics of Open Content licencing    17
     d) Conclusion of the licence                        If the licenser is not, or not sufficiently,
     	contract                                           entitled to grant these rights, the licence
                                                         grant is – on the whole or in parts – null
     A licence is a permission to use a copyright- and void. As a result, the licenser commits
     protected work in a way that would other-           a copyright infringement for the assump-
     wise constitute an infringement. Whether a          tion of rights she does not actually own.
     licence is a contract or a simple, one-way          Even worse, all users are also guilty of
     promise varies from jurisdiction to jurisdic-       copyright infringement, because the licence
     tion. The effect, however, is the same: The         grant was invalid.
     licence is a valid legal agreement that gov-            The legal reason for the latter is that
     erns the use of a particular work. Uses             only the owners of rights can (sub-)licence
     which are not covered by the licence or do          rights to others. A licence grant without
     not comply with the licence obligations are         entitlement on the licenser’s side is void.
     illegitimate acts that can have legal conse-        For example, a publisher owns the exclu-
     quences.                                            sive print and distribution rights of a novel,
         To conclude a public licence is simple. In      but does not have the rights to make the
     a first step the licenser notifies the potential    content available online. In this case, the
     users that their work can be used under the         publisher cannot be an Open Content
     terms of a specific licence.                                           licenser for the work, as
     This is done by attaching a The entire content of                      the Open Content licence
     licence notice to the work,                                            would also cover rights to
     including a link to the
                                      Wikipedia       is published          make the content available
     licence text.12 From a legal under a free licence.                     online. By applying the
     perspective, this act is                                               Open Content licence, the
     regarded as an offer to the public (i.e.            publisher would violate the (in the case of
     to any interested party) to use the work            doubt: author’s) right to make the work
     according to the licence conditions. Once a         available by wireless means. The same
     user uses the work in a way which triggers          applies to any Open Content licensee who
     the licence, the licence agreement is               would make the novel available online. As
     concluded and the licensee has the neces-           the licenser does not have the right thereto,
     sary permission to legitimately use the             the user cannot obtain it from them either.
     work (but also the duty to observe the              Whether the licenser and/or the user actu-
     obligations contained in the licence).              ally knew or could have known about the
                                                         lack of entitlement is irrelevant.
     e)	Preconditions for using                              How does the licenser obtain the entitle-
         Open Content licences                           ment to act as a licenser? The initial owner
                                                         of copyright is always the creator.14 If the
     In order to be able to licence a work as Open creator acts as the licenser themselves, no
     Content, the licenser needs to own all the          further steps are needed. However, if a
     necessary rights to do so. A public licence         third party shall act as a licenser, one or
     grants non-exclusive rights to use a work to        more contractual transfers of rights are
     any interested party. For this, the licenser        required. When the rights are transferred
     needs to have exclusive ownership of all the        repeatedly, it is important to establish a
     rights that are covered by the public licence.      consistent licence chain to properly entitle
     The owner of mere non-exclusive rights is,          the licenser. In other words, if a work is
     depending on the jurisdiction, usually not          licenced several times from one party to
     able to grant rights to third parties.              another before it is published under a public

18   2. The basics of Open Content licencing
licence, all licence deals concluded in          This model can be adopted for other publi-
between have to cover all necessary rights       cations as well, e.g. anthologies, Open
and need to be effective.15                      Access repositories, image and video plat-
                                                 forms. The principle is simple: Unlike tradi-
f) Centralised vs. Decentralised                 tional publication and licencing models, the
   licencing schemes                             publisher (if that
                                                 term is appropriate       Every editor of Wikipedia
There are many different Open Content            for platform provid-
publication strategies. Designing a sustain-     ers altogether) is
                                                                           keeps the exclusive rights to
able and effective strategy can, however, be     neither the central       their contributions.
tricky. Some of the options require trans-       rights owner nor the
ferring rights prior to the actual publication   licenser for the published content. The
under the public licence, others do not.         authors keep their exclusive rights and
What model is feasible depends on the            licence them by using the Open Content
individual situation. Two major approaches       licence to anyone on a non-exclusive basis,
shall be exemplified here using the online       including the publisher/platform provider
encyclopedia Wikipedia:                          themselves. In many cases, the Open Con-      Wikipedia is the
                                                                                               biggest online encyclo-
    Wikipedia is a massive multi-author          tent licence grant will suffice to legitimise
                                                                                               pedia with more than 30
collaboration project. Anyone who wishes         the provider’s own use.18                     million articles in approx.
to contribute is invited to do so. The authors       However, in certain situations, the       280 language versions.
                                                                                               English Wikipedia is the
can upload their articles and modifications      public licence grant might not be broad       biggest one with 4.5
of existing articles themselves. All contribu-   enough to entitle the publisher sufficiently. million articles.

tions are published under the same CC            Take, for example, a publisher who would
licence (CC BY-SA).16 There are two major        like to print and sell an anthology with
approaches to licencing in such a project:       articles written by a number of authors.
Either every author acts as licenser for their   The articles are to be published under a
own contributions or all rights are consoli-     public licence, allowing the authors to
dated in a central body, for instance, in the    keep their exclusive rights. In this scenar-
Wikimedia Foundation which then acts as          io, the publisher merely acts as a vendor
licenser for all published content. The first    of the book rather than as a licenser of the
alternative could be called a decentralised,     articles. To prevent commercial competi-
the latter a centralised licencing scheme.       tion by other publishers, the publishing
                                                 house might decide to publish the articles
The decentralised licencing scheme               under a CC NonCommercial (NC) licence.
                                                 The authors might, for example, licence
The founders of Wikipedia opted for a            their contributions under a CC BY-NC
decentralised licencing scheme. The authors      licence.
who contribute copyright-protected articles          Under this arrangement, the CC licence
or edit existing articles in the encyclopedia    does not cover the own use of the publisher
keep their exclusive rights and licence them     because selling a book counts as a commer-
to the users. No rights are transferred to       cial use. The publisher has to conclude an
the Wikimedia Foundation, which, in turn,        additional agreement with the authors
does not and cannot act as the licenser for      which entitles the publisher to commercial-
the articles. In this scenario, the foundation   ly exploit the articles. This additional
acts, from a copyright perspective, as a         agreement could be a written contract or a
platform provider and hosting service            one-way “container licence.” The right to
rather than as a publisher.17                    commercially exploit the work could be

                                                               2. The basics of Open Content licencing                 19
     granted on a general basis or in relation to      the outbound licence, i.e. the Open Content
     a particular book publication.                    licence. For example, if a NonCommercial
                                                       (NC) licence is used, the inbound licence
     The centralised licencing scheme                  (contributor agreement) could be restricted
                                                       to non-commercial uses as well. Or if the
     Alternatively, all rights could be trans-         project decided for a licence with a No-
     ferred to the publisher who would then act        Derivatives (ND) attribution as outbound
     as the licenser for the work under the Open       licence, there would be no need for the
     Content licence. This option would require        authors to transfer modification rights to
     the conclusion of individual licence con-         the publisher. Whether such restrictions are
     tracts between the authors and the pub-           to be recommended, depends on the actual
     lisher prior to the publication.                  case. It could be reasonable to leave the
         To give an example: Assume Wikipedia          individual decision about e.g. commercial
     followed the centralised licencing approach. uses with the author. In other cases, practi-
     All rights would have to be transferred to        cal or financial aspects might suggest that
     the Wikimedia Foundation (or to a different all licencing decisions should be taken by a
     legal body) which would then act as the           central body.
     licenser of the CC licences which were                Furthermore, the inbound licence should
     granted to the foundation by the individual       explicitly mention that it will allow the
     authors for the Wikipedia-articles. To            publication of the covered works under a
     accomplish the transfer of rights from the        public licence. This is all the more impor-
     authors to the publisher, “contributor            tant, as in some jurisdictions it is manda-
     agreements” would have to be concluded            tory to obtain the explicit permission from
     with every author. These are also known as        the author in order to be able to sub-licence
     “inbound licences”.                               and/or to transfer rights to third parties.
         The scope of the inbound licence must         Although this might not be the case in
     comply with the outbound licence in order         every European jurisdiction, the author still
     to establish a correct                                                 needs to be aware that the
     licencing chain. In this       Once an open licence                    work will be published as
     context, it is inevitable                                              Open Content. The use of
     for the authors to grant
                                    is granted     it cannot      be        a work published as Open
     exclusive rights or even       revoked.                                Content can be far more
     assign their rights com-                                               extensive than in a con-
     pletely to the publisher, since non-exclu-        trolled licencing scenario. Especially when
     sive licences usually – although depending        the outbound licence permits modifications,
     on the relevant national jurisdiction – do        e.g. moral rights of the author could be
     not allow for the re-licencing or the trans-      affected.
     ferring of rights to third parties. In addi-          Which alternative, the centralised or the
     tion, the licence grant has to be unrestrict-     decentralised licencing scheme, is preferable
     ed in terms of territory and duration. Since      depends on the particular situation. At first
     the Open Content licences grant the users         glance, it might be argued that the decen-
     worldwide and perpetual rights to use the         tralised approach is less complex to organ-
     work, the licenser's rights must be equal in      ise. It does, for instance, not require com-
     scope.                                            plex licencing management between the
         Also, whether and to what extent the          publisher and the authors. In addition, it
     scope of the licenced rights should be re-        would prevent liability issues for the pub-
     stricted in the inbound licence depends on        lisher. If the publisher acted as licenser, they

20   2. The basics of Open Content licencing
could be made liable for the provided con-       advantageous for commercial publishers to
tent. If the individual authors acted as li-     hold all entitlements. Especially in massive
censers, questions of liability would usually    multi-author collaboration projects, basic
only affect them. In Wikipedia, for instance,    decisions about the licencing scheme would
the author is the only person who knows the      be much easier to realise than in a decen-
content and the history of the contribution.     tralised model, where every right holder
It would thus be fair to decide that they        would have to be asked for permission in
alone should be responsible for it.22            order to be able to, e.g. change the project’s
    Especially in massive multi-author col-      licence. Generally
laboration projects such as Wikipedia, a         speaking, if crucial     Open Content licences
centralised licencing approach or rights         decisions about
management would be very complex. But            licencing, marketing
                                                                          withstand before a court
this could equally be said for smaller ven-      strategies or business of law.
tures. Take for example a research institute     models depended on
which would like to publish an anthology         the approval of a number of individuals,
under a CC licence containing articles from      problems would most certainly arise, as
20 different authors. Not long into the          such decision-making structures are highly
negotiations, it turns out that the authors      unpredictable and almost impossible to
cannot agree upon a uniform licencing            control.
model. Whereas some do not agree with                The bottom line is that decisions about
public licencing at all, others wish to submit   publication models and licencing schemes
articles that have been published in a jour-     need to be well-considered. Every concept
nal before. The latter cannot be licenced as     has advantages and disadvantages which
Open Content, because the authors have           need to be balanced against each other.
already transferred their exclusive rights to    This is all the more important as such deci-
the previous publisher and reserved only         sions cannot be easily revoked and will
non-exclusive rights to republish them.          most probably be crucial for the success of
Among those who agree with an Open               the project.
Content publication, some are in favour of
a permissive licence, e.g CC BY, whereas         g)	Pitfalls of republications
others would like to reserve the right to
commercially use their work and therefore        The licenser must ensure that their Open
favour a CC BY-NC approach.                      Content licence does not violate third par-
    In a decentralised model, every author       ties’ rights. In particular, republications of
could decide individually about the out-         works that have already been published
bound licencing of their contribution.23         commercially may raise problems. Publica-
Those in favour of an Open Content licence       tions in a journal or newspaper, for exam-
could publish their article under any public     ple, often require the transferral of exclu-
licence. The others might reserve all rights.    sive rights to the work to the publisher. In
The centralised model, by contrast, would        such a situation, no second publication
require the institution to negotiate an indi-    under an Open Content licence is possible,
vidual licencing agreement with every            except with the consent of the publisher.
single author. Such an effort would take         Otherwise, the creator would violate the
time and money.                                  exclusive rights of the publisher, notwith-
    On the other hand, there could be a          standing their own authorship (the issue of
variety of reasons for having a single,          so called self-plagiarism, if it applies, is
central licenser. It could, for example, be      separate to that of copyright).

                                                              2. The basics of Open Content licencing   21
     For that reason it should be made very          All these factors indicate that the initial
     clear in organised Open Content projects        decision about the publication model or
     that the authors need to have the right to      licencing scheme is very important.
     republish their contribution under a public     Although the right holder is, in theory, free
     licence and that no third parties' rights are   to revise any licencing decision at any time,
     infringed. These rights can be derived          alterations of the licencing strategy can
     either from the legal ownership (author’s       only be made in connection with major
     right, copyright, exclusive usage rights) of    updates of the work. Hence, decisions for
     the contributor themselves or again from        Open Content publishing in general and the
     an Open Content licence. Content can for        selection of a specific licence in particular,
     example be uploaded onto Wikipedia by           must be taken diligently.
     anyone who is not the author or rights
     owner, if it has already been licenced under    i)	Enforcement of Open
     an Open Content licence compatible or identi-      Content licences
     cal with the licence used in Wikipedia.24
                                                    Open Content is not free of rights and is not
     h)	Practical effects of using                  equivalent to the public domain. If some-
     	an Open Content licence                       body uses the work in a way which is not
                                                    permitted by the licence terms, the rights
     As already mentioned, Open Content             owner can take legal action according to
     licencing combined with the decision to        copyright and/or contract law.25
     publish online will most probably lead to a        In addition, the CC licences contain a
     certain loss of control. Anybody who would legal construction which ensures effective
     like to copy, distribute, republish or other-  enforceability: This is the automatic termi-
     wise use the work is                                              nation clause.26 According
     entitled to do so (except       Open     Content  licences        to that rule, any licence
     maybe commercial us-            are valid worldwide.              violation terminates the
     ers). This enables the                                            licence automatically.
     “free flow” of the work. Also, since the       Without a valid licence, any further use
     usage rights are granted royalty-free, the     constitutes a copyright infringement which
     options to derive direct profits are limited   can give rise to claims for damages, injunc-
     after the content has been published. On       tions and other legal remedies.
     top of that, the licencing decision is – at        Take, for example, a blogger, who posts
     least for the particular version of the work   a photo which has been licenced under a
     – irrevocable. The licences to use are grant-  CC licence without providing the copyright
     ed permanently and cannot be terminated        and licence notices: This usage violates the
     by the author or right holder. Should the      licence requirements and may thus be
     right holder decide to change the licencing    subject to contractual remedies as well as
     model after the initial publication, any       copyright claims (as the licence is termi-
     licencing agreements concluded prior to        nated automatically).27
     that change will remain valid. In other
     words, people who concluded the licence        j) The problem of licence
     beforehand can still use the work according        incompatibility
     to the initial licencing terms, i.e. use and
     distribute it, as the licence for a work which One of the main benefits of Open Content
     has been spread cannot be changed in           is supposedly that it can be combined with,
     retrospect.                                    or integrated into, other publications in

22   2. The basics of Open Content licencing
order to be republished in a new context.       terms.” Unless the terms of both licences
Licence incompatibilities, however, threat-     are identical or at least equivalent in their
en this objective of public licencing.          content – which is very unlikely – the licenc-
    The term “licence incompatibility”          es are incompatible
indicates that two or more works cannot         and the content           Free licences apply to all
be published as a combined work due to          cannot be combined.
                                                                          copies of the respective work –
contradictory licence obligations. Licence      Obeying one licence
incompatibilities are an undesirable side       would inevitably          regardless of their quality.
effect of inter alia ShareAlike licences        result in infringing
(“copyleft”). These licences feature a clause   the other. The same effect might occur,
according to which – to put it simply – mod-    depending on the particular situation and
ified versions of the work can only be          the interpretation of the respective licences,
shared under the licence of the original.28     if somebody would like to combine articles
Apart from direct interventions into the        or graphics licenced under different licences.
work (e.g. shortening or translating an             Licence incompatibilities contradict the
article) the term “adaptation” or “modifica-    objective of establishing and increasing a
tion” can also apply to combinations of         “cultural commons” of protected works
works, especially remixes or mashups.29         which can be rearranged, remixed and (re-)
    Imagine a photo artist who would like       combined to create new cultural content.
to publish a photo collage combining one        Since there is currently no tangible solution
image which has been licenced under a CC        for the incompatibility problem,30 its poten-
                                                                                               The GNU Free Docu-
BY-SA with another one which has been           tial effects should be considered carefully    mentation License gives
licenced under a different ShareAlike           when choosing a licence.31                     readers of text-based
                                                                                                       works the right to re-use
licence (e.g. the GNU FDL). In this case,                                                              and adapt the work and
both licences would have the same require-                                                             requires all derivatives to
                                                                                                       be published under the
ment, stating: “You can only share a combi-                                                            original licence. Com-
nation or modification under my licence                                                                mercial usage is allowed.

                                                             2. The basics of Open Content licencing                         23

     1 However, the CC initiative also provides instruments
     which mark content that has fallen into or should be con-
     sidered as part of the public domain. These tools have to      9 For details in relation to the freedom of royalties see
     be distinguished from the licences. Waiving copyrights or      chapter 2.4 section c.
     marking particular content as “not protected,” i.e. public
     domain, means giving up the exclusive rights, whereas          10 See e.g. the licence grant in the section 2a of the
     licencing means to grant a right to use the work under         legal code: “Subject to the terms and conditions of this
     certain conditions.                                            Public License, the Licensor hereby grants You a world-
                                                                    wide, royalty-free, non-sublicensable, non-exclusive,
     2 The legal explanation for this aspect is complex and         irrevocable license to exercise the Licensed Rights in the
     differs from jurisdiction to jurisdiction. To put it simple,   Licensed Material to …”
     exclusive IPRs, such as copyright, are effective against
     anybody (rights in rem), whereas a licence or a contract       11 See the CC FAQ to this aspect und der the questions:
     only binds the concluding parties. The practical differ-       “Can I apply a CC license to low-resolution copies of a
     ences are significant: Imagine, for instance, somebody         licensed work and reserve more rights in high-resolution
     copied a work for commercial purposes, which was               copies?” (
     licenced for non-commercial uses only. The violation of        Asked_Questions#Can_I_apply_a_CC_license_to_low-
     the licence could be enforced on the basis of copyright        resolution_copies_of_a_licensed_work_and_reserve_
     or contract law. Contract law would require the infringer      more_rights_in_high-resolution_copies.3F) and “How
     to have to conclude a licence, i.e. they would have to         do I know if a low-resolution photo and a high-resolution
     be a party to the legal agreement. By contrast, under          photo are the same work?” (https://wiki.creativecommons.
     copyright law anyone infringing the exclusive rights of the    org/Frequently_Asked_Questions#How_do_I_know_if_a_
     right holder could be held accountable irrespective of         low-resolution_photo_and_a_high-resolution_photo_are_
     whether there was a contractual relation with the rights       the_same_work.3F).
     owner or not. This shows that legal remedies derived
     from copyright law are usually much more effective than        12 In a book or other non-digital publication a hyperlink
     contractual claims.                                            could be printed. Alternatively, the licence text itself
                                                                    could be included as a whole. For more information in
     3 E.g. the “Open Database Attribution” and “ShareAlike         relation to the practical questions of including licence
     for Data/Databases-licence,” published by Open Know-           notices and similar aspects, see chapter 4.
     ledge, see:
     odbl/.                                                         13 Certain uses are allowed by statutory provisions,
                                                                    i.e. limitations and exceptions. For them the user needs
     4 For Free and Open Source Software there are two              no licence and is insofar not bound by the terms of the
     definitions. See the definition of the Free Software Foun-     licence. For example, in many countries private copying is
     dation (FSF):          permitted by law. Hence no licence is required for private
     html and the Open Source Definition of the Open Source         copying. Accordingly, the public licence does not apply to
     Initiative (OSI):              such use. The effect is that the user does not have to meet
     definition.php. Both definitions are by and large identical.   the licence obligations, e.g. they do not have to credit the
                                                                    author, etc. For further details see chapter 3.4, section b.
     5 There are a variety of diverging definitions for Open
     Content (see e.g., Free         14 Under common law based copyright systems, there
     Content or Free Cultural Works (see: http://freedomde-         are exceptions from this basic principle. English copy- Unlike the Free and Open Source         right law, e.g. provides for a rule according to which the
     Software definitions which may be regarded as de facto         employer becomes the initial owner of the copyright in all
     standard, none of the Open Content definitions seem            works that are created by their employees in the course
     universally accepted though.                                   of their employment. The US copyright act has a similar
                                                                    rule, called work-for-hire.
     6 It is worth mentioning that this definition is broader
     than other understandings of “open.” According to the          15 Unlike property rights in physical goods, IPRs can
     Open Knowledge Definition (see: http://opendefinition.         generally not be acquired bona fide, i.e. IPR can be trans-
     org/od/), for instance, content and data are only “open,”      ferred only if the transferor owns all the rights allowing
     if they are subject to licence terms that require the          them to do so thus being appropriately entitled. Whe-
     licensee at least to name the rights owner and/or to share     ther the transferee is in good faith when acquiring the
     alike. The discussion about the notion of “open” is com-       rights, since they confide in the transferor’s assurance, is
     plex and multifaceted. Since this document is meant to         irrelevant.
     explain the practical applicability of CC licences, it shall
     neither be outlined nor commented upon here.                   16 In relation to this licence see chapter 3.1, section b.

     7 See more about the ShareAlike principle and its effects      17 Apart from the licencing aspect, the Wikimedia Foun-
     in chapter 3.5, section c.                                     dation is of course much more to Wikipedia than a mere
                                                                    platform provider. It is e.g. responsible for the gover-
     8 For further information on the term and concept, see:        nance structures and many other essential elements.

24   2. The basics of Open Content licencing
18 This might not be relevant for mere platform provi-           Open Source Software. 3rd edition. Recitals 371-379
ders who will usually not be regarded as users in terms          (in German).
of copyright law and therefore do not need a licence.
A platform provider in the proper sense does not use             26 See section 6a of the legal code:
protected content in terms of copyright law but merely 
supplies the technical infrastructure to enable the
platform’s users to make content available. However, for         27 The effect of this rule is that the moment the vio-
a publishing house that publishes books, it is inevitable to     lation takes place, the licence becomes invalid. From
obtain a copyright licence to do so, since printing articles     that moment on, every use of the work is a copyright
in a book and selling it is a distribution that falls into the   infringement. Indeed, according to the CCPL4 licence
scope of copyright law.                                          it is possible for the infringer to reinstate the licence
                                                                 (or to conclude a new one), when they remedy their
19 An inbound licence refers to the contractual agree-           non-compliance. However, uses that are conducted in
ment between the authors and the publisher. An out-              the meantime, i.e. between the infringing act and the
bound licence is the licence between the publisher and           reinstatement are not remedied. See: “Licence term and
the users, here the CC licence.                                  termination” in chapter 3.4, section i.

20 That is because of the need for a proper licence chain.       28 The SA feature is described in detail in chapter 3.5,
The licenser cannot grant rights which they do not own or        section c.
are not allowed to dispose of themselves.
                                                                 29 The CCPL4 licence defines adaptations as follows:
21 From a legal perspective, there are several approa-           “Adapted Material means material subject to Copyright
ches to design contributor agreements. Some juris-               and Similar Rights that is derived from or based upon the
dictions, especially the common law based copyright              Licensed Material and in which the Licensed Material is
systems, allow for an assignment of the copyright. Whe-          translated, altered, arranged, transformed, or otherwise
reas a licence is a permission to use the copyrighted work       modified in a manner requiring permission under the
owned by another party, an assignment is a transfer of the       Copyright and Similar Rights held by the Licensor.“ See
copyright itself, one could say: a transfer of ownership.        section 1a of the legal code: http://creativecommons.
Some contributor agreements are based on the licence,            org/licenses/by-nc-sa/4.0/legalcode.
other on the assignment approach. However the Conti-
nental European author’s rights-regimes (e.g. Germany,           30 See to the efforts made to solve the problem and to
Austria) do generally not allow for an assignment of the         the ShareAlike rule in general in chapter 3.5, section c.
author’s right. See for an overview: Maracke. 2013.
Copyright Management for Open Collaborative Projects:            31 For the details of the implications see chapter 4.1.
Inbound Licencing Models for Open Innovation.
SCRIPTed, vol. 10, issue 2, p. 140;

22 This aspect would become relevant when an article
infringed the rights of a third party, e.g. copyrights. If the
contributor themselves was the licenser, they would be
responsible and liable. The platform provider might be
obliged to remove the infringing article from the platform,
but they would not be liable for damages. If the platform
provider acted as a content provider, i.e. as licenser, they
could also be held liable for damages.

23 Unlike in a massive multi-author collaboration pro-
ject, such as Wikipedia, diverging outbound licences
should not be too problematic in such small publications.
Hence, a uniform licence scheme would at least not be

24 See the explanations at:

25 Concerning the differences between contract and
copyright law remedies, see footnote 2. Regarding the
international enforceability of public licences under
different jurisdictions, see: Jaeger/Metzger. 2011.

                                                                                  2. The basics of Open Content licencing    25
26   3. The Creative Commons licencing scheme
                            3. The Creative Commons
                               licencing scheme

“Featured pictures” on the free media archive
Wikimedia Commons are the best pictures on
the platform, chosen by thousands of volunteers.
This ice flower is one of them.

                                                   3. The Creative Commons licencing scheme   27
     CC is by far the most widespread Open         four basic elements (the “licence features”)
     Content licencing model. Its popularity and   which are illustrated by abbreviations and
     widespread use means CC can nowadays be       pictograms.1
     considered de facto as the standard for           “BY” stands for attribution (the obliga-
     Open Content licencing.                       tion to credit the author and other parties
                                                   designated for attribution); “NC” stands for
     3.1 Overview of the six                       NonCommercial (commercial use is exclud-
                                                   ed from the licence grant); “ND” means
         Creative Commons                          NoDerivatives (only verbatim copies of the
         licence types                             work can be shared) and “SA” represents
                                                   ShareAlike (i.e. the work can be modified
     In order to meet the varying needs of dif-    and modified versions can be published but
     ferent publishing strategies, CC provides     only under the original or a compatible
     a set of six licences and two public domain   licence).
     tools. Each licence contains one or more of

     Figure 1: Pictograms of the cc licence feature

                             BY 						                            NC

                             ND 						                            SA

28   3. The Creative Commons licencing scheme
These four features form the basis of a fixed     a brief overview over the different CC
set of six CC licences:                           licence types. The different licence fea-
    The most permissive licence is CC BY.         tures, restrictions and obligations are fur-
It grants unrestricted, irrevocable, royalty-     ther explained in more detail in section 3.5.
free, worldwide, indefinite rights to use the
work in any way, by any user and for any          a) CC BY (Attribution)
purpose. The only requirement is that the
user credits the author and other parties         As already mentioned, CC BY grants an
designated to receive attribution and             unrestricted licence to use the respective
retains copyright and licence notices. All        content. How the content is used, e.g. in
other licence versions contain further re-        original or modified form, by whom or for
strictions. The most restrictive licence is the   what purpose, is irrelevant. According to
CC BY-NC-ND. It allows neither modifica-          section 3a of the legal code 2 the following
tions nor commercial use. This section gives      obligations must be met:

Figure 2: The six variations of the CC licences

                     CC BY                                       CC BY-SA

                 CC BY-NC-SA                                     CC BY-ND

                CC BY-NC-ND                                      CC BY-NC

                                                            3. The Creative Commons licencing scheme   29
                   1. The author and other parties designated       can redistribute a modified version under
                      to receive attribution must be named in       the terms of their choice. CC BY-SA, how-
                      the manner requested by the licenser as       ever, binds the adapter to the terms of the
                      long as the requested form of attribution     original licence. In other words, adapted
                      is reasonable.3                               versions must be shared under CC BY-SA
                                                                    or a compatible licence.4 Apart from the
                   2. If supplied by the licenser, copyright        above-mentioned duties to indicate the
                      notices, a reference to the CC licence        modifications, the adapter’s licence 5 must
                      (preferably as a link to the CC website),     comply with the following conditions:
                      a notice that refers to the disclaimer of
                      warranty and liability and a link to the      1. The adapter’s licence must either be the
                      original source must be retained.                original licence or any later version of
                                                                       that licence. Earlier versions cannot be
                   3. If the work is shared in an adapted              used. It can also be another CC licence
                      version, it must be indicated that it is a       that contains the same licence features,
                      modified version. Former indications to          for example a ported version of the CC
                      modifications must be retained (section          BY-SA licence.6
                      3.a.1.B of the legal code).
                                                                    2. A hyperlink or other reasonable refer-
                   4. If the licenser requests to remove any of        ence to the adapter’s licence must be
                      the information referred to in paragraph         included.
                      2 above, the user has to do so as long as
                      it is reasonable.                             3. The use of the modified version must not
                                                                       be restricted by additional terms and
                   5. The licensee must not create the impres-         conditions or TPMs.
                       sion that their use is in any way endorsed
                       by the licenser or any party designated      C) CC BY-ND (Attribution-No-
                       to receive attribution (section 2.a.6 of        Derivatives)
                       the legal code).
                                                                    The CC BY-ND licence does not permit
                   B) CC BY-SA (Attribution-Share-                  adaptations of the work. To protect its
                      Alike)                                        integrity, only verbatim copies may be
                                                                    distributed and shared. The NoDerivatives
                As the general licence of Wikipedia, CC             restriction can lead to significant problems
                BY-SA is one of the most important and              with the combination of different content,
                                     widespread CC licenc-          e.g. in remixing, sampling or joined publica-
 The most widespread Open es. Licensers, who                        tions. Apart from this, the licence terms are
 Content licence CC BY-SA would like their con-                     the same as in the CC BY licence described
                                     tent to be uploaded            above.
 is used on Wikipedia.               onto Wikipedia, or
                                     would like to combine          D) CC BY-NC (Attribution-Non-
                it with Wikipedia content, are advised to              Commercial)
                use CC BY-SA.
                    The only difference between CC BY-SA            Contrary to the afore-mentioned licences,
                and CC BY is the ShareAlike clause in               the CC BY-NC reserves the right to use the
                section 3b of the legal code. Under the CC          content commercially, i.e. a user is not
                BY licence, anyone who adapts the work              allowed to reproduce the work or create

30                 3. The Creative Commons licencing scheme
derivatives if their purpose is to realise a    public domain, CC offers two tools: The
commercial gain. The respective restriction     CC0 (No Rights Reserved) declaration to
can be found in section 2.a.1 of the legal      dedicate own works to the public domain
code. Apart from that, the licence is identi-   and the Public Domain Mark to label works
cal to CC BY and therefore subject to the       which are already free of protection, e.g.
same obligations.                               because the term of protection has expired
                                                or because they were not protected in the
E) CC BY-NC-SA (Attribution-                    first place.
                                                a) CC0 (No Rights Reserved)8
The CC BY-NC-SA combines the NonCom-
mercial and the ShareAlike features. There-     The CC0 is a tool to deliberately dedicate
fore, the work can be adapted, and adapted      copyright-protected works to the public
versions can be shared under the conditions     domain. Thus, it is basically a waiver of
referred to in paragraph 2 above. However,      rights. Once it is in effect, a work belongs to
no commercial use of the licenced material      the public domain and can be used by
is permitted, neither of the original nor of    anyone without any restrictions or obliga-
any modified form. This licence is used, e.g.   tions. CC0 is nothing but a standardised
by the Massachusetts Institute of Technol-      declaration of such a waiver which can be
ogy (MIT) Open Courseware Project               used by anyone who wishes to dedicate
(OCW).7                                         their work to the public domain.
                                                    As jurisdictions, especially copyright
F) CC BY-NC-ND (Attribution-                    systems and systems of authors' rights
	NonCommercial-ShareAlike-                      differ across countries, CC0 was designed
	NoDerivatives)                                 as a three-tier instrument to ensure its
                                                worldwide validity. In authors’ rights sys-
The CC BY-NC-ND is the most restrictive         tems such as in Ger-
CC licence. Neither modifications nor com-      many, France or           In some jurisdictions it is not
mercial uses are permitted. The general         Austria, it is gener-     possible to waive one‘s own
obligations mentioned in paragraph 1 above      ally not possible to
also apply to this licence.                     waive an author’s         author‘s right. Public domain
                                                right completely or,
                                                                          tools can help here.
3.2 Creative Commons                            in other words, to
                                                give up one’s ownership of a work. Authors’
    public domain                               rights are considered as some kind of hu-
    tools                                       man right which can neither be waived nor
                                                transferred. Hence, in these authors' rights
As described in the beginning, a right          regimes, a simple waiver would probably be
holder retains their copyrights when using      invalid.9 To avoid this dilemma, the CC0
an Open Content licence. They merely            waiver is supplemented by two fallback
grant others permission to use the work         options:
under certain conditions. As opposed to             The first fall back option is a permissive
this, works in the public domain are not (or    licence similar to CC BY but without the
no longer) subject to copyright protection at   attribution requirement.10 Hence, it is a
all and may be used without restrictions.       licence without any restriction or obliga-
Hence, no permission – no licence – is          tion. The second fallback option, CC0, is a
needed anymore. To mark works in the            legal construct usually referred to as a

                                                         3. The Creative Commons licencing scheme           31
     “non-assertion pledge”. It is a legally bind-    3.3 Generic and ported
     ing promise of the right holder not to               licence versions
     enforce their rights in any way, even if
     there was a legal option to do so because        Over the years, the CC initiative has con-
     the waiver and/or licence are not valid.         stantly developed, modified and modern-
         The idea behind the three-tier approach      ised its licences. The current version, CC
     is the following: If the first solution is not   4.0 (hereinafter referred to as CCPL4 = CC
     effective, the second option comes into          Public Licence version 4), was published on
     effect and if this was ineffective as well,      November 26th, 2013. The CC Public
     the third option would come into force. In       Licence Version 3 (CCPL3) and CCPL4
     some jurisdictions, certain rights can never     differ in a number of ways, i.e. they contain
     be waived or made subject to a blanket           sometimes subtle, although often impor-
     licence. In these cases, for example, the        tant, differences.13
     second fallback solution comes into play.11          The CC licences were initially designed
                                                      in the light of US copyright law. Neverthe-
     b) Public Domain Mark (No                        less, it was per se not intended to be a mere
        Known Copyright)                              US project but rather an international
                                                      initiative to foster the cultural commons
     In contrast to CC0, the Public Domain Mark       worldwide. Soon, therefore, increasing
     is not a declaration but rather a label for      global interest in the CC licences prompted
     works which are already in the public do-        a discussion about the need for more ver-
     main. This can be the case, for example, once    sions based on other jurisdictions.14 In
     the term of protection of a work expires.        2003, CC launched an international licence
     Copyrights and authors' rights are granted for   porting project called: “Creative Commons
     a certain amount of time only. In Europe, for    International.” “Porting” in this sense does
     instance, the rights terminate 70 years after    not only mean translating but also adapting
     the author’s death. After this term, the work    the rules linguistically and legally to a
     is considered to be in the public domain and     particular jurisdiction. The aim was to
     can be used without restriction.                 adapt the CC licences to numerous jurisdic-
         The purpose of the Public Domain Mark        tions worldwide and make them enforce-
     is to enable anyone to clearly mark works        able in these jurisdictions.15 Aside from
     which are no longer under copyright pro-         these ported versions, CC now also offers
     tection. CC provides a tool on its website       international, also known as unported/
     which generates an HTML code which can           generic, versions of their licences.16
     be used for public domain content available          Legal language as well as regulations
     online. This code is particularly useful         differ from country to country. Licences
     because search engines are then able to          based on US law can thus be partly invalid
     detect such content on the Internet.             in other parts of the world. For example,
         Before the Public Domain Mark can be         the liability and warranty disclaimer in the
     applied to a work, a thorough inquiry about      original US CC licences are invalid under
     the legal status of the particular work is       German, and most likely Pan-European
     required. Calculating the exact term of          consumer contract law.17 If a licence clause
     protection can be difficult, especially with     is invalid, complex questions arise. Such
     regard to the differing rules in different       complexities may lead to legal uncertainties
     jurisdictions. Tools such as the Europeana       which might prevent organisations and indi-
     Public Domain Calculator may help in this        viduals from using the licences in the first
     task.12                                          place.18

32   3. The Creative Commons licencing scheme
For this and other reasons, the international owners have to agree. This could prove
CC project established a network of affili-       considerably difficult as, unlike some FOSS
ate organisations to port the licences to         licences, CC licences do not contain an
their respective jurisdictions. CCPL3 was         “any later version” clause.20
ported into more than 60 jurisdictions.               While it is understandable that licensers
    Interestingly, CC has meanwhile               might prefer a licence that is adapted to their
changed its attitude towards porting. For         language and jurisdiction, the question of
CCPL4, as of today, no licence ports are on       whether ported versions are advantageous
the horizon. In the launch notification for       depends on a number of complex considera-
CCPL4 the CC officials contend that               tions. In the end, the answer depends on the
CCPL4 does not need to be ported at all. In       particular case. Here, it is only possible to
the current version of the FAQ, CC states:        give some brief remarks on aspects which
    “As of version 4.0, CC is discouraging        should generally be considered.
ported versions, and has placed a hold on             At first glance, it might seem beneficial
new porting projects following its publica-       for an, for instance, French right holder to
tion until sometime in 2014. At that point,       use the French ported CC licence for their
CC will re-evaluate the necessity of porting      works. To begin with, a licence in one’s
in the future. […] We recommend that you          mother tongue is linguistically easier to
use a version 4.0                                                     understand.21 Also, it is
international license. “Ported“ Open Content                          easier to estimate the
This is the most                                                      legal implications when
up-to-date version of       licences   are   linguistically           the licence is based on
our licenses, drafted and legislatively adapted to a one’s national law. Fur-
after broad consulta-                                                 thermore, the French
tion with our global        certain   national   jurisdiction.        licence will contain a
network of affiliates,                                                choice of law clause
and it has been written to be internation-        according to which the licence contract
ally valid. There are currently no ports of       and all other potential issues are governed
4.0, and it is planned that few, if any, will     by French law.22 This rule simplifies the
be created.”19                                    legal relationships between multi-national
    It may be doubted that any licence can        licensees and the licenser because it desig-
be valid to the full extent in all jurisdictions nates one definite jurisdiction as the appli-
worldwide. However, for the time being it         cable law. Without a choice of law clause,
seems unlikely that the licence-porting           the identification of the applicable law
project will continue, even though many           could be very complex, since it may vary
right holders would probably prefer to use a      depending on the nationality of the particu-
licence which is not only translated into         lar licensee or their place of residence.23
their mother tongue but also adapted to               However, it needs to be kept in mind
their jurisdiction. It is thus predictable that   that the legal certainty for the licenser
the CCPL3 licences will still be used to a        might result in linguistic and legal uncer-
significant extent, at least for some time.       tainties for most of the potential users as
Especially for larger projects with many          far as they live in different countries. Legal
authors and a decentralised licence scheme,       uncertainties, in turn, can constrain the use
this is to be expected. If the licence for        of the work, which the licenser actually
numerous works and contributions is sup-          wanted to encourage.24
posed to be changed, e.g. to a newer ver-             Therefore, the international/unported
sion or another licence type, all rights          CC licences with their “multi-jurisdictional

                                                             3. The Creative Commons licencing scheme   33
     approach” may be regarded as beneficial,       work under CC BY-SA 4.0. Alternatively,
     especially for online content. The same is     if the initial licence was CC BY-SA 3.0
     true for licences used for multi-national,     Unported, they could choose a CC BY-SA
     multi-author collaboration projects. It        3.0 France licence for the adaptation.
     would make no sense to use a national              Importantly, any adaptation of a work
     licence, e.g. for Wikipedia. The result        still contains the original work. From a
     could, and would, in many cases be that the    legal perspective, the adapter can only
     designated jurisdic-                                                  licence their modifica-
     tion was alien to both, When a work is modified,                      tions; unmodified parts
     the licenser and the                                                  of the work remain
     licensee. In such
                                an   adapter    can only    licence        under the initial
     projects the private       their modifications. The                   licence. Without a legal
     international law solu-                                               solution offered by the
     tion is more suitable,
                                original work remains under licence, the adapter
     despite its potential      the initial licence.                       cannot really “re-
     complexity, as it                                                     licence” the work as
     would most likely result in the applicability  a whole. This might lead to the confusing
     of either the licenser’s or the licensee’s     situation in which the user of a repeatedly
     national law.                                  modified work has to obey multiple licences
                                                    at the same time.
     Translations                                       The CCPL4 contains a new rule, which
                                                    offers a simple solution for this problem:
     The international/unported licences have       The user of the modified version is only
     been translated into many different lang-      bound to the (last) “adapter’s licence”
     uages. This is true in particular for CCPL3.   which was attached to the particular ver-
     Official translations for CCPL4 have           sion of the work.26 Former licences which
     already been announced and can be expect-      were applicable to earlier versions of the
     ed to be published by the end of 2014.         work become irrelevant.27

     Ported and unported or different linguistic      3.4 Licence conditions,
     versions in adaptations
                                                          user obligations
     A work which has been modified several               and restrictions
     times could, in a later version, be subject to       relevant for all
     a number of different licence versions, even
     though it has initially been published under
                                                          Creative Commons
     a ShareAlike licence. The ShareAlike clause          licences
     permits the contributor (adaptor) to use not
     only the original but also a compatible          All CC licences share a standard set of
     licence for their version. Compatible licenc-    almost identical general rules. These
     es are, e.g. ported versions of the same         “general licence features”, which apply to
     licence. In addition, the contributor could      all licence types, will be discussed here.
     choose to publish a modified version under       The distinctive licence features “NonCom-
     a later version of the same licence. For         mercial”, “NoDerivatives” and “ShareA-
     instance, the adapter of a work which has        like”, which only apply to some of the
     initially been published under a CC BY-SA        licence types, will be elaborated in detail
     3.0 could publish their newer version of the     in section 3.5.

34   3. The Creative Commons licencing scheme
a) Licence grant                                 right the user does not have to abide by the
                                                 licence obligations. Below, some examples
The licence grant clause in section 2a of the    are discussed when this might be the case.
legal code differs slightly across the differ-
ent licence versions. Common ground is           Where the licence is not needed and not
that a non-exclusive, irrevocable, royalty-      applicable: internal use
free and worldwide licence is granted to
share and copy the material, irrespective of     Section 2.a.2 of the legal code states:
the type of use. In other words, the work            “Exceptions and Limitations. For the
can be reproduced in any form (digital or        avoidance of doubt, where Exceptions and
non-digital) and on any media (e.g. hard         Limitations apply to Your use, this Public
disks, paper, servers, etc.). It can also be     License does not apply, and You do not need
conveyed by any possible means, e.g. over        to comply with its terms and conditions.”
the Internet, as hard copies (CD, paper          Additionally, section 8a of the legal code
among others) or via email.                      states:
    Obviously, the licence grant differs from        “For the avoidance of doubt, this Public
licence to licence regarding commercial and      License does not, and shall not be inter-
non-commercial uses – the NC licence             preted to, reduce, limit, restrict, or impose
being the only one which allows the reser-       conditions on any use of the Licensed Mate-
vation of commercial usage rights. Also, the     rial that could lawfully be made without
right to share modified/adapted versions of      permission under this Public License.”
the work varies between the ND versions              In other words, uses which do not
and the other licences. Even though the ND       require a licence do not trigger the licence
licences permit the creation of modifica-        obligations. Statutory freedoms of use (e.g.
tions, the “adapted material” cannot be          copyright exceptions),
distributed without further permission of        such as the quotation Only a rights-owner can
the licenser, however.                           right, are not restrict-
    According to section 2.a.1 of the legal      ed by the licence,        grant the right to use their
code, all CC licences are “non-sublicensa-       which means that          material and sub-licence it.
ble.” This wording represents an important       within their scope,
basic principle of public licencing: Rights to   the licence obligations are not effective.
use the material are granted by the right        For example, private copying is often –
owner to the user. Users cannot grant rights     though not always – permitted by national
in the material to other users, i.e. they        law. Hence, no licence is required for pri-
cannot grant sub-licences.28 This construc-      vate copying and, accordingly, the CC
tion prevents complex licence chains, which      licence does not apply to such use. The
would otherwise occur, if the works could        effect is that the user does not have to meet
be re-distributed by a number of users.          the licence obligations. For example, the
                                                 user would not have to credit the author
b) Licence conclusion and                        when making a private copy. Should they,
   effectiveness of licence                      however, decide to upload their private
	obligations                                     copy to a website, the licence comes into
                                                 effect and the licence obligations become
The licence terms only come into effect          binding.
when a use falls within the scope of copy-           Copyright is limited in many other ways
right's exclusive rights. When using a work      – not only concerning uses in the private
in a way which is outside the scope of copy-     sphere. Any use which falls outside of the

                                                           3. The Creative Commons licencing scheme       35
     scope of copyright protection can be con-      it, she has adapted the photo optically and
     ducted without obeying the CC licences.        technically. Her Facebook posts are only
     To put it simply, the CC licence obligations,  available to her direct contacts. If this use
     and the respective grant of rights, only       was considered to be public (because her
     become relevant in the context of publica-     contacts would be considered as members
     tion and distribu-                                                   of the public), the user
     tion.29 Especially in      Open Content licences only would violate the
     the private sphere,                                                  licence terms which
     CC material can be         become relevant when                      demand that altered
     used almost without        making a work publically                  material must not be
     any obligations.                                                     made available to the
         According to           available and distributing it.            public. If the group of
     section 2.a.1 of the                                                 her contacts was, how-
     legal code, the attribution obligation must    ever, not considered as a public group, she
     be observed only, when the work is             would act in a perfectly compliant way.
     “shared.” Sharing is defined in section 1i          Another example may be a company
     of the legal code as: “to provide material     which produces a brochure which includes
     to the public by any means or process that     some modified ND photos. The brochure
     requires permission under the Licensed         will only be distributed within the company
     Rights, such as reproduction, public dis-      group but not to third parties. Is the deploy-
     play, public performance, distribution,        ment within the group an internal use or a
     dissemination, communication, or impor-        public distribution? If the latter was true,
     tation, and to make material available to      the use would violate the licence terms.
     the public including in ways that members           The question is even more relevant
     of the public may access the material from     when it comes to SA licences. As already
     a place and at a time individually chosen      mentioned, the SA feature obliges adapters
     by them.”                                      to licence their modified version of the
         Read together the two clauses mean: If     material under the same licence. This
     the material is not conveyed to members of     requirement is often confused with an
     the public,30 the user is not asked to comply “obligation to publish.” In fact, the SA
     with the attribution obligation.               provision does not oblige the adapter to
                                                    publish their modified version. They can
     The term public                                keep it for themselves as long as they want.
                                                    They could also share it with a limited
     Simply put, “sharing” means conveying          amount of user groups without infringing
     the material to members of the public. But     the SA rule.31 Hence, SA is not an obliga-
     what does public mean in this context? The     tion to share. It is merely a rule on “how
     question is of enormous practical relevance, to share.” If the adapter’s version is shared
     especially for corporate users and public      publicly, however, it must be licenced under
     authorities, but also for private users, since the same or under a compatible licence.
     uses in the public sphere are subject to       Whether it is shared at all, or with whom,
     licence obligations and restrictions; uses in  is the free decision of the adapter.
     the non-public (e.g. private) sphere are not.       Hence, the meaning of public or more
         The importance of the differentiation      precisely “providing material to the pub-
     shall be emphasised by two examples:           lic,” as the CC licences put it, is essential
     Imagine a Facebook user posted someone         for the SA clause and crucial in practice.
     else’s ND-photo on her wall. Before posting    One last example regarding this specific

36   3. The Creative Commons licencing scheme
case: Take the above-mentioned situation           specific individuals belonging to a pri-
where the company wanted to share the              vate group.”32
brochure within the company group. Imag-
ine the brochure was a modified version of      • The term public implies that a communi-
another brochure which was initially pub-         cation or making available of a work
lished under a CC BY-SA licence. The              targets a fairly large number of per-
company now adds information containing           sons.33 This excludes groups of persons
business secrets, which is why the company        which are too small to be significant. A
would like to keep the second version to          significant group can also be reached in
itself. If transferring the brochure from one     succession. The ECJ held: “In that con-
company to another within the group was           nection, not only is it relevant to know
regarded as “providing material to the            how many persons have access to the
public,” the “secret version” would have to       same work at the same time, but it is
be licenced under a CC BY-SA licence. In          also necessary to know how many of
that case, anybody (e.g. employees or any         them have access to it in succession.” 34
other third party) could share and republish
it. If the use was considered non-public,       • It is relevant whether the user profits in
however, the SA obligation would not be           monetary terms from the use.35
triggered and the company could prevent
anybody from sharing it.                        • It is essential whether the communica-
     So, what is the exact meaning of public?     tion or making available was deliber-
Unlike the CCPL3, the CCPL4 licences do           ately addressed to a public group.36
not contain an explanation of the term.
They only define the term sharing, which        • Regarding works which are available
on the other hand implies a use within the        online, a “making available to the pub-
public sphere. This leaves us having to           lic” requires the targeting of a “new
interpret the central term public on the          public,” i.e. an audience “that was not
basis of the applicable copyright law. How-       taken into account by the copyright
ever, different jurisdictions have different      holders when they authorised the initial
interpretations of this and other terms,          communication to the public.”37 This
which makes it impossible to give a univer-       means, for example, that hyperlinks to
sally valid answer.                               works which are already made available
     In the European Copyright Directives         online to the general public (i.e. without         The European Copy-
                                                                                                     right directive
and the thus formed European copyright            technical restriction) cannot be consid-
                                                                                                     implemented the WIPO
acquis communautaire the term public is           ered as a communication or “making                 Copyright Treaty in order
used in several contexts. However, the            available” to the public.38                        to harmonise certain
                                                                                                     aspects of copyright law
European copyright directives do not pro-                                                            across Europe.
vide a general, or all encompassing, defini-    Although these general rules answer a
tion of the term public either. The term has,   great variety of particular questions con-
however, been mentioned in some judg-           cerning the term public in copyright law,
ments of the European Court of Justice          they do not allow precise answers for situa-
(ECJ), which has established the following      tions which have not already been decided
basic interpretation rules:                     by the ECJ. In other words, the EU copy-
                                                right acquis lacks a unitary concept of
• Public means “making a work percepti-         communicating or making available of a
  ble in any appropriate manner to per-         work to the public. It is, for instance, hard
  sons in general, i.e. not restricted to       to determine whether the upload of pro-

                                                          3. The Creative Commons licencing scheme                        37
     tected material to a company’s intranet           individual companies will usually qualify
     for the access of all employees is a commu-       as a (public) distribution; whereas the
     nication to the public, or in the terms of        distribution of material in-house, within
     CCPL4, an act of sharing. It is further           one company, will probably not be consid-
     unclear whether the transfer of copies from       ered as sharing.40
     one affiliate company to another or from             Nonetheless, it is still disputed whether
     one public authority to another branch of         the notion of public should be considered
     that authority, constitute a communication        differently in the case of distribution (i.e.
     to the public.                                    the conveying of physical copies) and the
         In the end, these questions need to be        making available of non-physical copies
     decided on a case by case basis. This is          (via a network or email), as it has not yet
     especially true for the interpretation of         been clarified by the European courts
     sharing in the CCPL4 licences, because this       under which circumstances the sharing of
     term comprises a number of uses which are         intangible copies of protected works, e.g.
     treated differently under copyright law           in a corporate or professional environ-
     including, e.g. public display, public perfor-    ment, can be considered public or non-
     mance, distribution, dissemination, commu-        public.
     nication, or importation, and making                 It must therefore be assessed on a case
     material available to the public.                 by case basis whether the licence obliga-
         Under European copyright law, “distri-        tions of the CC licences are triggered in the
     bution” (to the public) means the dissemi-        particular scenario.
     nation of physical copies (e.g. CDs or
     books). “Making publicly available,” in           c) Attribution
     turn, refers to online uses. Most likely, the
     notion of public under European copyright         The obligation to name the author and/or
     law would vary depending on the different         other parties designated to receive attribu-
     use cases.                                        tion is essential for most licensers. It ensures
         It is safe to stipulate, however, that uses   that the right holders are credited for their
     within the private sphere, i.e. within groups     work, which is crucial to gain recognition
     having mutual personal relationships, are         and/or publicity. Crediting is thus the main
     always non-public. To watch a movie with          reward for the Open Content publisher
     friends, to send a copy of a text via email       whether it is the author, company or public
     to close colleagues or to share photos by         institution.
     making a Dropbox folder available to a               The great importance of attribution is
     small group of selected people, will not          highlighted by the fact that all CC licences
     be considered as public sharing.                  contain the BY feature. The respective
         On the other hand, any online use which       obligation can be found in section 3a of the
     targets a general public qualifies as sharing     legal code.
     under the CC licences, as the potential
     audience is not restricted by technical           Crediting properly
     measures. This applies irrespective of
     whether the user pursues a commercial             The CC licences are quite flexible regarding
     or non-commercial purpose.39                      the crediting requirement. The user is
         Obviously, there are countless situations     merely requested to give attribution in a
     which still may be considered either non-         “reasonable manner.” 41 Even if the licenser
     public or public. Sharing between separate        suggests/prescribes a certain method of
     and independent legal persons, i.e. two           attribution, this only binds the licensee, if

38   3. The Creative Commons licencing scheme
they can reasonably comply with it. This       The obligation to implement a copyright
creates leeway for a number of attribution     notice (section 3.a.1.A.ii of the legal code)
methods which will be applicable depend-
ing on the particular media formats and        If the licenser provides a copyright notice,
use-cases. There are several explanations      it must be retained.
on correct attribution available on the
CC website and a number of best practice       The obligation to refer to the licence and to
guidelines. 43
                                               the warranty disclaimer (section 3.a.1.A.iii,
    Proper crediting is easier when the        iv of the legal code)
general concept of attribution and its goals
are understood. Thus, the following para-      The obligation to supply a copy of or a link
graphs seek to explain the background to       to the licence is necessary to ensure that all
the above-mentioned rules:                     users can benefit from the licence in the
    First and foremost, it is important to     first place. A user cannot observe a licence
understand that crediting is only effective    they are not aware of. Thus, if the licence
when the user can relate the credit to a       information is not attached to the particular
particular work. For                                                  copy the user has
instance, if a website       Because     credits are   the  main      accessed, they will
provider decided to
                             reward for using Open Con- not be properly enti-
centralise all crediting                                              tled. The obligation to
information for all          tent licences all Creative               link to the disclaimer
implemented images on                                                 of warranties is based
one central page, they
                             Commons licences contain on the same idea. A
would have to make           the BY feature.                          contractually deter-
sure that each credit                                                 mined limitation of
could be allocated to the correct picture      liability can only be legally valid if it is
(e.g. by hyperlinking the information to the   brought to the licensee’s attention. Since
particular image file). The closer the credit  the warranty and liability disclaimer form
is attached to the work, the more likely the   part of the licence (section 5 of the legal
attribution requirement will be complied       code), this obligation can only be complied
with and the intent and purpose of credit-     with by providing the licence text.
ing retained.
                                               The obligation to link to the online source
The obligation to name the author and          (section 3.a.1.A.v of the legal code)
“any others designated to receive attribu-
tion” (section 3.a.1.A.i of the legal code)    To a reasonable extent, the licensee is also
                                               obliged to retain Uniform Resource Identi-
The obligation to name the author and the      fiers (URI) or hyperlinks to the licenced
copyright owner is a common rule under         material. This also applies (like all other
copyright law that shall ensure, as men-       attribution obligations) to the use in offline
tioned above, that the author gains public-    publications. Imagine someone used a
ity and possibly monetary rewards. It is       photo from Flickr in a print magazine:
also necessary to prevent plagiarism, i.e.     The obligation to link to the source would
to ensure that the original author is ac-      be complied with by printing the full Flickr
knowledged as the author, and not the          URI, thus allowing the reader to find the
user.                                          source.

                                                          3. The Creative Commons licencing scheme   39
                             The obligation to indicate modifications         In section 1b of the legal code they are
                             (documentation obligation, section 3.a.1.B       defined as “copyright and/or similar rights
                             of the legal code)                               closely related to copyright, including,
                                                                              without limitation, performance, broadcast,
Database rights              The obligation to indicate modifications has     sound recording, and sui generis database
refer to ancillary rights
                             several reasons. First and foremost, it aims     rights, without regard to how the rights are
granted to the creator of
a database.                  to protect the original author’s reputation.     labelled or categorized.” 45
                             If everybody was allowed to modify a work             Section 4 of the licences’ legal code
                             in any way, this could result in modified        explicitly addresses database rights. The sui
                             versions which the original author might         generis right on databases is a European
                             not want to be associated with, e.g. because     peculiarity which does not exist in many
                             they dislike the style or the quality. The       other parts of the world (e.g. the US). It was
                             documentation obligation ensures that            introduced on EU level in 1996 by means of
                             modifications by third parties are clearly       the Database Directive46 which is manda-
                             attributed to them and not to the original       tory for all member states.
                             author. Moreover, this rule ensures that the          Section 4 of the legal code clarifies that
                             evolutionary history of the work can be          the general licence grant in section 2.a also
                             retraced at all times. This is particularly      covers these specific database rights. If the
                             important for massive multi-author collabo-      licenced material includes a protected
                             ration projects such as Wikipedia which          database, it is permitted to extract, copy,
                             rely to a considerable extent on version         reuse and share it in whole or in part.
                             histories to make the origination process        Unlike some ported versions of CCPL3,
                             of the articles transparent.                     the CCPL4 licence requires the user to
                                                                              comply with the licence obligations when
                             No obligation to name the title of the work      they use a protected database.47
                             in CCPL4                                              Whether these rights are granted de-
                                                                              pends on the decision of the licenser. It
                             One change in CCPL4 compared to former           would, for instance, be possible to licence
                             versions is that the attribution requirement     elements of the database but not the data-
                             does no longer request the licensee to name      base itself. The database and its contents
                             the work’s title. According to the FAQ           are separate subjects of protection; hence,
                             under CCPL4 it is still recommended to           they can be licenced (or not licenced) inde-
                             name the title (if the licenser supplied one),   pendently. If the licenser wanted to restrict
                             but it is no longer mandatory.44                 the licence to one of these two elements
                                                                              (the content of the database or the database
                             d) Application of the licence to                 itself) they would have to clearly identify
                             	database and other related                      which elements are covered by the licence
                                rights                                        and which are excluded.48
                                                                                   Since the grant of database rights is
                             Material published under CC licences will        closely connected to the copyright grant,
                             often be protected by an accumulation of         the licence obligations and restrictions are
                             IPRs. Take, for instance, a music file: Au-      equally applicable to the database rights.49
Neighbouring                 thors’ rights protect the composition and        If, for example, a database was licenced
Rights are related to
authors’ rights but are      the lyrics, neighbouring rights the sound        under a NC licence, the reuse, sharing,
not connected to a           recording and the performance of musi-           copying, etc., would only be permitted for
work’s actual author, e.g.
performers’ or broad-
                             cians and singers. The CCPL4 licences            non-commercial purposes. If it was licenced
casters’ rights.             apply to all copyrights and related rights.      under an ND licence, it would not be pos-

40                           3. The Creative Commons licencing scheme
sible to take substantial portions of the         continental Europe have very strong moral
database and incorporate them into another        rights which are only negotiable to a cer-
database.                                         tain extent. Nations which pursue a “copy-
    Again, if the database was licenced           right approach” such as the UK or the US,
under an SA licence, any own database             do not grant such “sacrosanct” moral
which included a substantial part of the          rights. In these states, moral rights are
original database would have to be licenced       subject to the freedom of contract, i.e. they
under the same or a compatible licence.50         can easily be contracted-out, limited or
e) Patent and trademark rights                        The different approach between the
                                                  above-mentioned jurisdictions challenges
According to section 2.b.2 of the legal code      the concept of unitary public copyright
patents and trademark rights cannot be            licences which are supposed to be valid
licenced under the CC licences. This is           and enforceable all over the world. Hence,
especially important for corporate and            moral rights used to be a major aspect in
institutional licensers who own trademark         the porting of the CC licences to other
rights in their company name, logo, etc.          jurisdictions. Licence ports from countries
    The exclusion of trademark licences           with a strong protection of moral rights,
means that a trademark associated with the        e.g. the German CCPL3, contain special
work can only be used to share said work in       clauses which stipulated that moral rights
terms of the CC (copyright-) licence grant.       remained unaffected by the licence grant.52
For instance, a CC-licenced book which was        The CCPL3 unported version did not
published under a registered trademark of         address the aspect in any way. This lack
the publisher could be copied and shared          of regulation raised doubts on whether the
with the general public. However, no licen-       licence grant could be regarded as fully
cee would be allowed to use the trademark         valid under authors’ rights regimes.
in any other way but for sharing this book.           As CC abandoned the idea of licence
They could neither promote their own              ports in CCPL4, a new concept was needed
works under that trademark nor could they         to deal with moral rights. The CCPL4
allege that the trademark owner endorsed          introduction website explains how moral
the publication of their own modified ver-        rights and neighbouring aspects, such as
sions. This is further ensured by the obliga-     privacy or other personal rights, are now
tion to mark modifications.51                     dealt with: “The 4.0 licence suite uniformly
                                                  and explicitly waives moral rights held by
f) Moral Rights, privacy and                      the licensor where possible to the limited
   personal rights                                extent necessary to enable reuse of the
                                                  content in the manner intended by the
One of the main reasons for the nationalised      license. Publicity, privacy, and personality
CC licence ports was the different concept of     rights held by the licensor are expressly
moral rights in different jurisdictions. Moral    waived to the same limited extent.”53
rights are supposed to protect the personal           The intended effect is that moral, per-
relationship between an author and their          sonal and other rights which might be
work. Among others, moral rights include          affected by the licence, but are outside the
the right to first publication, the attribution   scope of copyright,54 are waived to the
right and a protection right against distor-      maximum extent possible under the appli-
tions of the work (“right of integrity”).         cable copyright law.55 However, the waiv-
Especially the authors’ rights regimes in         er’s scope is limited, covering only what is

                                                            3. The Creative Commons licencing scheme   41
     necessary to be able to use the licenced      themselves. If other people’s rights are
     work.                                         affected by a publication the licenser has
         This approach leaves the decision, how    to ensure that all necessary permissions are
     far personal and moral rights can be waived obtained. If they fail to do so, the infringed
     and to what extent they remain in force, to   person can hold both, the licenser and the
     the applicable law. Whether it is legitimate, licencee, liable.58 This means, if, for exam-
     for example, to use a CC licenced song in a   ple, a person uses a CC-licenced picture
     pornographic movie or CC licenced photos      which violates personal rights, they can
     in a political campaign will differ from      also be held liable. Whether the user knew
     jurisdiction to jurisdiction.                 or could have known about the infringe-
         However, the resulting legal uncertainty  ment of personal rights is irrelevant.
     should not be overestimated. Despite their
     theoretical importance within the authors’    g) Disclaimer of warranties
     rights regimes, moral rights are de facto     	and limitation of liability
     much less disputed than commercial rights
     of use and are very rarely the subject of     All CCPL4 licences contain a comprehen-
     lawsuits. The moral, personal and data        sive disclaimer of warranties and liability.
     protection rights                                                    This means that the
     waiver, or as the case     Creative Commons licences work is shared “as-is”
     may be, the non-                                                     and that the licenser
     assertion pledge, shall
                                do not touch upon third par- is not liable for any
     only ensure the us-        ties‘ personal rights.                    damages, losses or for
     ability of the work. If                                              whatever other harm-
     someone made selfies available online and     ful event could result from the use of the
     licenced them under a permissive, modifica- work.
     tions-allowing CC licence, they should be         Under European tort law and other
     aware that people might use them in a way     regulations, it is not possible to fully
     that they would not appreciate.57 Moral       exclude all liability for damages and negli-
     and other personal rights, such as the right  gence.59 Section 4.c of the legal code is thus
     of integrity, should, however, only be re-    intended to ensure that in the case of man-
     garded as a last resort to oppose uses in     datory statutory law imposing minimum
     extreme, and therefore rare, cases.           liability standards, the liability is reduced
         A more significant issue which is not     to the lowest possible level under the appli-
     – and cannot be – solved by the licences      cable law.
     alone is personal rights. Especially photos,      Whether such a severability (or: salva-
     videos and articles are often published       tory) clause can sustain an (most probably)
     under a public licence in violation of third  ineffective liability clause, might be argu-
     parties’ personal rights. For instance, pho-  able. However, even if the liability rules
     tos or videos showing individuals are pub-    in CCPL4 were invalid, the liability for
     lished online without their permission.       damages arising from the provision of CC
     Articles including personal data that should  material (and Open Content in general)
     not be conveyed without consent are posted would most likely be minimal. Although
     in blogs or on websites. Redistributors of    the actual standard of liability will vary
     such infringing material can become subject from jurisdiction to jurisdiction, all liability
     to legal action, irrespective of the public   regimes will consider the fact that Open
     licence. As a matter of fact, the licenser    Content is shared without compensation.
     may only decide about rights affecting        The contractual liability for contracts with-

42   3. The Creative Commons licencing scheme
out consideration is generally very limited.    copyright infringements for which the user
Under German law, e.g. the prevailing           can be held liable. For example, if a user
opinion among legal experts is that the         failed to attribute the author or did not
statutory liability for public licencing is     provide a notice referring to the licence
equivalent to the liability for gifts. Hence,   text, they would forfeit their right to use
the level of liability is the lowest possible   the material. As previously explained,
under German contract law.                      without a licence they would be liable for
                                                copyright infringement, just as any other
h) Prohibition of the deploy-                   person who uses a protected work without
   ment of technological                        permission. Licences of third parties, how-
   protection measures                          ever, are not affected by the termination.61
                                                    If the licence is terminated, CCPL4
Due to a mandatory provision in the Euro-       offers two possible routes to reinstate it.62
pean Copyright Directive,60 the circumven-      According to section 6.b.1 of the legal code,
tion of effective TPMs is prohibited in all     the licence is rein-
EU member states and under any circum-          stated automatically      As soon as a licence condition
stances. This means, e.g. that nobody is        if the infringing licen-
allowed to reproduce a copy-protected           see remedies the          is breached, the licence termi-
work by circumventing the TPM, not even         violation within 30       nates automatically.
for private copying or quoting.                 days after they dis-
    Section 2.a.4 of the legal code clearly     covered it or after they were informed
states that TPM protection shall not be         about it by the licenser or otherwise. Alter-
effective for CC-licenced works. The effect     natively, the licenser can reinstate the
is that any licencee is allowed to conduct      licence expressly (section 6.1.b of the legal
whatever technical modification of the copy     code). However, according to the CCPL4
of the work is needed to be able to use it      FAQ, the user is liable for any non-compli-
according to the licence terms, even if it      ant uses which were conducted before the
required the circumvention of an effective      licence was reinstated.63
                                                3.5 Additional licence-
i)	Licence term and termination
                                                    specific restrictions
CC licences are concluded perpetually               and obligations
(section 6.a of the legal code), i.e. they
apply until the copyright, or any other         Besides the abovementioned obligations
related rights in relation to the material,     and restrictions which are valid for all six
expire. After all rights expired, the mate-     types of CC licences, the NC, ND and SA
rial becomes part of the public domain and      licence elements – which are part of only
there is no longer a need for a licence.        some of the CC licences – are also subject
    Furthermore, the licence grant is irrevo-   to some specific requirements which a licen-
cable (section 2.a.1 of the legal code).        see should be aware of.
Hence, the licenser cannot actively termi-
nate the licence contract. However, the         a) NC – NonCommercial
licence terminates automatically upon any
breach of the licence conditions (section 6.a   Three of the six CC licences contain the
of the legal code). Uses which are conduct-     NC element. NC means that the licenser
ed after the violation has occurred are         reserves the right to exploit the material

                                                          3. The Creative Commons licencing scheme     43
     commercially. Any user who wishes to           Section 1i of the NC licences’ legal code
     use the work for commercial purposes           defines NonCommercial as follows: “Non-
     needs additional consent (i.e. an additional   Commercial means not primarily intended
     licence) from the right holder.                for or directed towards commercial advan-
         NC licences are widespread and very        tage or monetary compensation. For pur-
     popular among the CC licence suite, at least poses of this Public License, the exchange
     in some areas.64 The reasons for this popu-    of the Licensed Material for other material
     larity are manifold. Indeed, there can be      subject to Copyright and Similar Rights by
     good reasons to choose an NC licence in        digital file-sharing or similar means is
     particular cases. However, in most situa-      NonCommercial provided there is no pay-
     tions, the NC versions lead to significant     ment of monetary compensation in connec-
     and often unintended drawbacks. As the         tion with the exchange.” 69
     NC restriction affects free distribution and       Obviously, this definition leaves a lot of
     inhibits many uses (often unintentionally),    room for interpretation. Particularly, the
     they are generally not considered as “open/    phrase “is directed towards monetary
     free culture” licences.65 Even in the context compensation” signals that the NC clause
     of education and research, the use of NC-      shall be understood in a very broad sense.
     content is characterised by legal uncertain-   How broad is, however, hard to estimate,
     ty.66 For example, NC content cannot be        especially since it is not clear whether the
     integrated into Wiki-                                                 word “primarily”
     pedia, as Wikipedia         The NonCommercial licence applies to the second
     uses a CC BY-SA                                                       alternative as well, in
     licence. For these and
                                 feature leaves a wide margin other words, whether
     other reasons, NC           for interpretation on what                the sentence has to be
     licences are highly                                                   read as: “NonCommer-
     disputed in the Open        commercial usage is.                      cial means not primar-
     Content community.                                                    ily … directed towards
         It is not the task of this guide to resume commercial advantage or monetary com-
     or comment on these discussions and its        pensation.” 70
     various arguments.67 Instead, it is the aim        The clause only mentions one specific
     of this guide to explain the NC restriction    use: Peer-to-peer file-sharing is deemed
     and to hopefully clarify some misunder-        non-commercial. In other contexts, uses
     standings about it. Below, however, some       must be individually examined whether
     of the arguments are taken up to explain       they are “(not) primarily intended for or
     strategic aspects regarding the selection of   directed towards commercial advantage or
     the appropriate licence for different cases.   monetary compensation.” This leaves a
                                                    wide margin for interpretation.
     What is the meaning of NonCommercial?              Thus, it is impossible to give an objective
                                                    and general answer to the question of when
     In the recent versioning process for CCPL4,    a use is commercial or non-commercial.
     it was debated whether, and if so how, the     Being a contract, the licence has to be inter-
     definition of the term NonCommercial           preted from an objective point of view
     should be clarified in the licence text. In    considering the views of both, licenser and
     the end, CC decided against any change of      licensee. Moreover, due regard must be paid
     the definition.68 Hence, the provisions in     to the applicable law in the particular case.
     CCPL3 and CCPL4 do not vary in this                In 2008, CC conducted a survey investi-
     respect.                                       gating the perception of creators and users

44   3. The Creative Commons licencing scheme
regarding the commercial/non-commercial              should be classified as commercial or
dichotomy.71 The findings revealed that              non-commercial.77
creators and users have by and large a
common understanding of the general               • The term commercial has to be under-
meaning of the terms commercial and                 stood in a broad sense. If the use serves
non-commercial. Concerning borderline               even a remote financial interest of the
cases and specific questions, however, the          user, it must be deemed commercial.78
results of the study were not very conclu-          It may be assumed that activities of
sive. Altogether, the survey can serve as an        profit-oriented users (especially compa-
interesting pool of information, as it reflects     nies) generally serve a business interest,
similarities and differences in the views of        at least remotely.
different stakeholders.72 One interesting
overall result was, for example, that users       • Uses that generate direct profits should
tend to interpret the NC clause more                always be considered commercial.
restrictively than the right holders them-
selves. However, due to its limited scope         • Whether the particular use (also) serves
and non-representative character, the study         the public interest or only the self-inter-
cannot be used as a reliable source for legal       est of the user has some relevance for its
interpretation.73                                   classification as commercial or non-com-
    On the whole, there is no unitary inter-        mercial.
pretation of the terms commercial and
non-commercial, and with regard to the            • Among the uses of individuals, there is
different jurisdictions, cannot be expected         a difference between job-related and
to exist. Nonetheless, an attempt will be           private uses. If the use is job-related,
made below to give some concrete answers            the classification depends on whether
for certain typical use-cases, although these       the intention of the employer/client is
must be understood as the author’s personal         “primarily directed towards commercial
opinion only.74                                     advantage.”79 In other words, a use
    The distinction given here between              could be commercial even if the user did
commercial and non-commercial is based              not follow their own commercial inter-
on two general factors: user-related aspects        ests but supported those of a third party.
and use-related aspects.75 Each category            If the use only serves a private purpose
comprises a number of more detailed fac-            and only takes place in the private
tors which indicate commercial or non-com-          sphere, it is always non-commercial.
mercial uses respectively. In addition, the
two general factors, combined with further        • Apart from these differences, it is irrel-
indicators, should give a good overview             evant who the user is. Individuals can
about a number of typical use-cases.76              follow commercial interests much the
    The following chart showing commer-             same as legal entities or institutions.
cial/non-commercial use-cases shows the
most essential indicators. It is based on the     • Uses that are covered by copyright
following assumptions:                              limitations and exceptions do not fall
                                                    into the scope of the licence. If such
• The general attitude of a user towards            regulations permitted certain commer-
  for-profit or not-for-profit activities is        cial uses, the NC restriction would not
  not the only determining factor, but a            be effective.80
  strong indicator whether their uses

                                                            3. The Creative Commons licencing scheme   45
                              Further explanations regarding the follow-             are deemed to be uses of their employ-
                              ing chart:                                             ers. In case a private person acts com-
                                                                                     mercially on their own account, e.g. by
                              • A freelancer is an individual who runs a             selling hardcopies of CC licenced-materi-
                                business and uses the material for their             al, they are considered a freelancer.
                                business interests. The term freelancer
                                shall be understood in a broad sense. It          The following assessment has to be under-
                                shall include inter alia artists who make         stood as a reflection of the author’s person-
                                a living from their creative work.                al opinion only. Some projects which use
                                                                                  NC licences offer explanations of their
                              • A private person is an individual who             own, which might not fully match the
                                uses the material for private purposes            author’s assumptions.81 In these cases, it
                                only. Uses of individuals which are con-          is recommended to follow the guidelines
                                ducted to fulfil their job-related duties         of the respective project.82

                              Chart 1: Who can use NC content in what use case?

Abbreviations:                 User type                                 Company Public      Non-           Free-     Private
Yes = Use of NC content
is permitted                                                                     institution profit         lancer    person
No = Use of NC content                                                                       NGO
is not permitted
n.a. = Not applicable, i.e.    Sell hardcopies                           No        No          No           No        No
such constellation is
                               Licence content against payment           No        No          No           No        No
inconceivable in the
logic of the chart as          Use for advertising                       No        No          No           No        No
explained above
                               Use to make money                         No        No          No           No        No
                               Use for the job                           n.a.      n.a.        n.a.         No        n.a.
                               Use on a website that displays ads No               Yes         Yes          No        Yes
                               to recover hosting costs
                               Use on a platform, where the              No        Yes         Yes          No        Yes
                               platform provider (not the
                               content provider) displays ads
                               Use for inhouse education and             No        Yes         Yes          No        n.a.
                               Use for private entertainment             n.a.      n.a.        n.a.         n.a.      Yes
                               and to entertain friends/family
                               of the user
                               Use to inform/entertain                   No        Yes         Yes          No        Yes
                               Use in tuition-free courses for           No        Yes         Yes          No        Yes
                               educational purposes
                               Use in tuition-based courses for          No        No          No           No        No
                               educational purposes
                               Use for corporate-funded research No                No          No           No        n.a.
                               Use for tax-funded research               No        Yes         Yes          No        n.a.
                               Use for inhouse corporate                 No        n.a.        n.a.         No        n.a.

46                            3. The Creative Commons licencing scheme
Advantages and Disadvantages of NC               selection of an NC licence is only appropri-
licences                                         ate if there are realistic prospects that
                                                 commercial users will pay to use the mate-
As mentioned before, NC licences have            rial. In many cases this is (above all in
several drawbacks. As such, the decision         relation to online content) highly unlikely,
to take such a restrictive licence should be     especially without an elaborate marketing
carefully thought through. The author’s          strategy. Moreover, if the licenser is not
impression is that most creators who decide      willing or not able to enforce potential
to use an NC licence do so because they do       violations of the NC restriction by taking
not wish other people and organisations to       legal action, it hardly makes sense to
make money with their creative work with-        impose it in the first place.
out an obligation to share potential profits.        When choosing a licence, it is of utmost
This motivation might be understandable          importance to be aware of the reasons why
from a psychological point of view. How-         a particular Open Content licence is cho-
ever, in many cases it leads (without any        sen. In the majority of cases, careful consid-
good reason) to a lose-lose situation. The       eration will reveal that non-pecuniary
licenser loses many potential users and uses     motives prevail. There are altruistic rea-
that would in actual fact serve their interest   sons, such as the wish to contribute to a
– broad distribution and widespread atten-       cultural commons or to inform people
tion to the work. Many users cannot, or at       about important subjects. However, the
least dare not (because of legal uncertainty)    majority of considerations will be of a
make use of the work not even for purposes       rather egoistic kind. Widespread distribu-
the licenser would not object to. The NC         tion draws attention to the author’s work.
element might also affect uses for educa-        Attention can result in engagements, popu-
tional and academic purposes, as the ques-       larity or even fame. If, for example, the
tion whether NC content can be used in           creator is not able or willing to establish
tuition-based courses (see the chart) is         and maintain a professional commercial
highly disputed.                                 distribution strategy themselves, why not
    The same is true for scientific uses         enable others to develop a channel and
within public-private-partnerships or even       reach out for an audience which they could
publicly funded research. Even the use on        not reach themselves? 83
entirely “private” websites where publish-           For corporate licensers and creators who
ers try to recover some of their hosting         are already well known and successful, NC
costs through advertising, is arguable.          licences can be a good choice, provided
Would a right holder actually like to pre-       they are employed as a tool to support an
vent these uses? Is it likely that such users    elaborate marketing strategy. Musicians,
would seek individual permission when            for example, can use NC licences to draw
their use might not be permitted by the          attention to their work by publishing some
licence? Would they conduct an in-depth          of their works on websites or platforms.
legal examination to ascertain whether           Should they be able to attract significant
their use is legitimate or not?                  commercial interest, no publisher could
    An objective evaluation of the advan-        exploit their work without negotiating
tages and disadvantages of NC licences           individual terms. However, it is very likely
leads to the conclusion that their disadvan-     that publishers would contact creators and
tages outweigh the benefits for both crea-       musicians before investing into the distribu-
tors and users in the great majority of          tion and marketing of their works anyway,
cases. From an objective standpoint, the         i.e. irrespective of whether their material

                                                           3. The Creative Commons licencing scheme   47
                  was published under a NC licence or not.        (commercial) use. However, commercial
                  Akin to the publishing business (especially     users such as publishers or music companies
                  fiction publication), a successful music        would be reluctant to use SA content with-
                  distribution requires a close liaison be-       out additional permission because they
                  tween creators and commercial exploiters.       could only do so under the same licence
                  If the music distributor wanted to establish    (CC BY-SA). To arrange a commercial (i.e.
                  a successful band, they would have to           traditional) distribution they would need
                  arrange concerts, interviews, media cover-      additional rights or exceptions, i.e. the need
                  age, merchandising and so on. Without           to negotiate with the creators would arise
                  cooperation between artists and publisher,      nonetheless. Furthermore, if a commercial
                  this would be impossible. In other words,       distributor included SA material in their
                  the possibility of using the music without      own works, e.g. by sampling or synching
                  individual consent will in most cases not       CC music with a film, the SA obligation
                  prevent a commercial exploiter from having      would also apply to their own material. In
                  to negotiate individual terms.                  other words, the film would have to be
                      That said, NC licences are generally        distributed under the CC licence due to the
                  only advantageous for professional publish-     copyleft-effect, sometimes also referred to
                  ers who can afford to create and deploy         as the “viral effect.” 86 This makes it all the
                  complex marketing strategies and who are        more unlikely that CC SA material would
                  willing and able to pursue licence violators.   be integrated into commercial productions
                  NC licences enable price differentiation and    without further consultation of the licenser.
                  so-called dual licencing business models.
                  Similar to the shareware and freeware           b) ND – NoDerivatives
                  concepts in the software world, there are
                  possibilities to freely share (under CC NC)     Two CC licences contain the restriction
                  abridged versions of books, movies or to        NoDerivatives: CC BY-ND and CC BY-NC-
                                       convey other “light        ND. As any licence restriction, the ND
The legal uncertainties of the versions” for free in              element does not mean that the material
                                       order to draw attention    cannot be adapted or modified at all. It
NC feature have a discoura-
                                       to the work.84 The “full   rather means that the right to modify the
ging effect on re-users.               versions” can then still   work is reserved, i.e. anyone who would
                                       be marketed commer-        like to publish an adapted version of the
                  cially. Whether such strategies are feasible    material must obtain an additional licence.
                  should be evaluated thoroughly weighing         Intent and purpose of the restriction is to
                  up the pros and cons.                           protect the integrity of the work.
                      On the whole, the number of situations
                  where the use of NC licences is the best        The term adaptation
                  choice is very limited. There might, how-
                  ever, be a better option which could also       Section 1a of the legal code defines adapted
                  serve the intended effect (prevent commer-      material as follows:
                  cial users to use the work without individu-        “Adapted Material means material sub-
                  al negotiation), while avoiding many of the     ject to Copyright and Similar Rights that is
                  negative side effects of the NC licences:       derived from or based upon the Licensed
                  Some commentators argue that CC SA is           Material and in which the Licensed Material
                  “the better NC”.85 In short: The SA licence     is translated, altered, arranged, trans-
                  grant is not restricted to non-commercial       formed, or otherwise modified in a manner
                  uses and does therefore not impede the free     requiring permission under the Copyright

48                    3. The Creative Commons licencing scheme
and Similar Rights held by the Licensor. For     of work, e.g. making a film out of a novel,
purposes of this Public License, where the       are considered adaptations. Also, the act of
Licensed Material is a musical work, perfor-     synching music with other works, e.g. to
mance, or sound recording, Adapted Mate-         use music as a background for a video, is
rial is always produced where the Licensed       indisputably deemed an adaptation.
Material is synched in timed relation with a         Apart from these explicitly mentioned
moving image.” 87                                acts of modifications, no further explanation
    Section 2.a.1.B of the ND licences’ legal    is given. The licence directs the user to the
code points out that adapted material can        applicable law.90 This makes it impossible to
be produced but not shared. Hence, the ND        give unitary answers. To which extent
restriction only applies when the adapted        licensees can republish adapted material,
material is shared; its production and pri-      will vary from jurisdiction to jurisdiction.
vate use is still allowed.88 The clauses in      This is even true for
CCPL4 are the same as the respective rules       different jurisdiction       CC SA makes sure that the
in CCPL3. As such, there is no difference        within the European
between the licence versions.                    Union, as the European content can only be used
                                                 copyright acquis com-        if the ShareAlike licence is
What exactly is an adaptation?                   munautaire has not yet
                                                 harmonised the modifi- kept intact.
There are some examples in the legal code        cation right, i.e. there is
of uses, which are to be considered adapta-      no unitary EU-wide concept of adaptations.
tions and uses, which are explicitly exclud-     Whether users of ND content need an addi-
ed from this definition. According to            tional licence for certain kinds of use de-
section 1a of the legal code, an adaptation      pends on several aspects. The question is:
takes place when the material is “trans-         Does the applicable law consider the par-
lated, altered, arranged, transformed, or        ticular use as a use of an adapted/modified
otherwise modified in a manner requiring         version of the work?
permission under the Copyright and Simi-
lar Rights.” 89 According to section 2.a.4 of    Adaptations of the work itself
the legal code, mere technical modifications
are, however, not deemed adaptations. The        Modifications of the work itself, e.g.
latter means that format shifting is not         abridgements, extensions, or re-arrange-
considered an adaptation nor is the digitisa-    ments of its content are generally consid-
tion of a non-digital work. In these cases,      ered adaptation under copyright law. This
the work itself remains unchanged. The           applies irrespective of whether the adaptor
digitisation of a printed novel, for instance,   owns the copyright in the modified version,
does not change the novel (the work), but        because the modification itself is subject to
only the media in which it is embodied.          copyright protection.
Therefore, it is not considered an adapta-
tion or modification under copyright law         Adaptation by changing the context and
but simply a reproduction of the work.           combining the work with other content –
    To determine which uses are adaptations      remixes, mash ups, collections and work
is much more difficult. The licence gives        combinations
examples of some acts which are usually
considered modifications/adaptations under       More complex questions arise when verba-
copyright law: Translations and the trans-       tim copies of the work are used in a new
formation of a work into another category        context. Can, for example, an ND photo be

                                                           3. The Creative Commons licencing scheme          49
     used in a book where it is framed by an         “adapted material” and the ND licence will
     article? Can someone publish a collection       not permit its publication unless allowed
     of 100 photos of different origin, including    under the applicable copyright law.91
     ND images, on a website? Can someone                One determining differentiator between
     include an ND text in an anthology com-         collections and combinations is whether the
     bining articles written by a number of          individual works remain separate and
     authors? Can someone exhibit an ND video        distinguishable in the given context. If the
     in an artistic video collection? Can some-      work itself was modified, e.g. a text was
     one combine several media, including ND         curtailed or a song remixed, the ND restric-
     sound recordings, in a multimedia installa-     tion would apply in any case, since mashing
     tion and sell them?                             up and remixing will usually involve such
         All these questions can only be             modifications. If a verbatim copy of the
     answered on a case-by-case basis under          work was, however, simply grouped with
     consideration of the applicable law. The        others, the result would in many cases be a
     legal situation for Italian users can thus be   collection rather than a combination, i.e.
     different from the legal situation for Ger-     there would be no adaptation.
     man users. As the legal terms adaptation            If verbatim copies of works were com-
     or modification need to be interpreted, it      bined to create a new comprehensive work
     is very important to know the applicable        with its own aesthetic expression, the new
     (national) case law to assess the issue in      work would also have to be considered
     question.                                                              “adapted material.”
         The distinction         The definition of „adaptati-               Here, the combined
     between collections                                                    material would not be
     and combinations of         on“  varies   from  jurisdiction           “grouped” but rather
     works will most likely to jurisdiction. In general it                  “merged” resulting in
     be an important factor                                                 the emergence of a
     under every jurisdic-       means     the  transformation        of    new and larger work
     tion. In a collection,      a work into another category which contains both,
     e.g. an anthology or                                                   own and reused mate-
     a catalogue, a number of work.                                         rial. Examples for this
     of works are simply                                                    would include the use
     put together for publishing. The different      of a copyright-protected image in a movie,
     contents stand alone as separate and distin-    the use of a copyright-protected cartoon
     guishable works, so their identification and    character in a video or the above-mentioned
     the identification of each author are un-       use of music tracks in moving images.
     problematic. Hence, to include a work into          In light of the above, it would seem
     a collection will usually not be considered     appropriate to adopt the following principle
     an adaptation.                                  as a general rule of thumb: Every time
         On the other hand, combining works will existing material is merged into a larger
     in many cases have the effect of “entwin-       work which has a character of its own, the
     ing” the individual works causing them to       works are adapted in the terms of copyright
     lose their individual expression. Depending     and the CC ND restriction. The more the
     on the technique, work combinations tend        individual works are used “as-is” and
     to display their own aesthetic expression       “stand-alone,” i.e. they are only grouped,
     which differs from the individual works         the less likely their combination/collection
     which were used. If this is the case, the       will be considered as adapted material.
     result will usually have to be considered as

50   3. The Creative Commons licencing scheme
Chart 2: What uses are allowed under ND licences?

 Use Case                                                  Permitted under ND?
 Mashup video                                              No
 Image or text in newspaper or journal                     Yes
 Music remix                                               No
Sampling                                                   No
Image or text on website, blog or social media posting     Yes
Translation                                                No
Music synching                                             No
Screen adaptation (e.g. of a novel, music)                 No
Images in catalogue                                        Yes
Article in text collection                                 Yes
Image Collage                                              Depends (generally No) 92
 Parody                                                    Depends on the jurisdiction 93
 “Kitchen-Video” with background music                     No
 Documentary film integrating sound footage                No

Following this distinction, it is possible to   • If the reused work was merged with
make a relatively clear cut between adapta-       other material into a new and larger
tions which are not permitted under ND,           work, the answer would be “No.” This
and mere reproductions, which are. Some           is the case when all the material is
typical constellations are explained in the       mashed/mixed as to create a new and
chart above.                                      larger work with an aesthetic expression
                                                  which replaces the independent expres-
Explanations:                                     sion of the reused work(s).

• Most relevant for the answer is whether       • If verbatim copies of ND material are
  the reused work(s) remain separate and          only grouped with other material (i.e. a
  distinguishable in the given context, i.e.      photo is framed by a text on a website)
  whether they were modified or verbatim          without being merged into a new work,
  copies were used.                               the answer will generally be “Yes.”

• If the reused work itself was modified,       • The creation of adaptations as such is
  e.g. a text was shortened or a song re-         not restricted by the ND clause, if the
  mixed, the ND restriction would apply           material is not published.
  in any case. Therefore, the answer is
  “No” (cannot be used under ND). By            The classifications above only express the
  contrast, in all cases marked “Yes” it is     author’s personal understanding of the
  presumed that the reused material itself      distinction between adaptations and repro-
  is used “as-is”.                              ductions. Some projects using ND licences

                                                          3. The Creative Commons licencing scheme   51
                        might offer their own explanations. If this is    purposes, ND licences are more appropriate
                        the case, it is always recommended to follow      than for others; the same applies for differ-
                        the guidelines of each particular project.        ent types of publications.
                                                                              Material with an informative purpose,
                        Advantages and Disadvantages of ND                for example, can benefit greatly from the
                        licences                                          possibility of modification. Modifications
                                                                          can improve or update the information
                         Whether ND licences are the best licence         contained therein or even iron-out mistakes.
                         choice depends very much on the particular       A project such as Wikipedia, for instance,
                         situation. Reluctance to allow other people      could not function under an ND-licence
                         to “tamper” with one’s creation is an            regime. Educational resources need to be
                         understandable but rather subjective rea-        modified and translated in order to make
                         son.94 Instead, it might be preferable to        them useful in other parts of the world or
Open Educational         base decisions on more objective aspects or      for different target groups. Therefore, Open
Resources are teach-
                         at least to balance subjective and objective     Educational Resources (OER) should not
ing and learning materi-
als released under free  arguments. From an objective viewpoint,          be published under ND licences. These
licences which allow for one might have to concede that if the            considerations will also apply to many other
dissemination, modifica-
tion and re-use.         licence does not permit modifications, the       informative and/or educational works.
                         positive effect for the cultural commons             Works, on the other hand, which serve
                         cannot be achieved. In fact, the ND licences     only an aesthetic purpose (such as music or
                         share several drawbacks with the NC and          movies) cannot be “improved” in the prop-
                         other restricted licences. First of all, as      er sense. Whether they are good or not is in
                         already mentioned in the NC section, it is       the eye of the beholder. However, if some-
                         pointless to opt for an ND licence if it is      one would like to advocate or contribute to
                         impossible to enforce any potential viola-       a cultural commons, an ND licence is not
                         tions of the restriction. Furthermore, one       an appropriate option. CC itself refuses to
                         should consider the detrimental effect of        grant the ND licences the status “Approved
                         the legal uncertainties which come with          for Free Culture!” ND material can neither
                         licence restrictions. Users who might have       be remixed nor mashed nor otherwise
                         wanted to use the content might be discour-      changed. Anytime ND-licenced contents
                                              aged by the vague ND        are combined with others in whichever
If content cannot be modified restriction. Finally,                       way, the use will be characterised by legal
                                              many of the generally       uncertainty.
or adapted, the positive effect
                                              beneficial effects of           In some cases, although much less often
for the cultural commons is                   Open Content could not      than most people would expect, it can be
                                              be achieved with ND-        reasonable or even necessary to protect the
limited.                                      licenced content, as an     integrity of the work with an ND licence.
                         individual agreement (a licence deal) would      This is, for example, true for “certified
                         be needed in order to be able to merge the       information” required for regulation which
                         material with other content. Otherwise it        can or should not be modified by anybody
                         could not be improved, updated or trans-         other than the certifying institution. This
                         lated; music could not be remixed or sam-        includes, e.g. technical standards and other
                         pled, video sequences could not be mashed.       norms, including legal norms.
                         Whether it is in their interest to prevent       ND licences can also be used to support
                         creative uses or uses which might improve        certain business models. It might, for exam-
                         their work, is for the licenser to decide. For   ple, be possible for somebody to publish a
                         some types of works and some publishing          generic version of textual information

52                      3. The Creative Commons licencing scheme
which needs customising to be useful or         In short, this means that the adaptor (who
applicable in particular cases. By using an     publishes a modified version of the mate-
ND licence, the publisher reserves some         rial) is bound to use the licence conditions
kind of exclusivity on customisation,           chosen by the original licencer. The adaptor
whereas under a licence automatically           is not allowed to further restrict the users’
permitting the publication of adaptations       freedoms, may they result from more
others could be encouraged (and would           restrictive licence conditions, from techni-
be allowed) to spread such customised           cal restrictions or anything else. The sense
versions free of charge.                        of this “contagious freedom” is easily ex-
    These examples show that objective          plained: All manifestations and shapes of
factors suggesting the use of ND licences are   a work should share the same freedoms.
rather rare. Of course, anyone is free to           Within this reasoning, the rule does
decide that their work should not be modi-      indeed make sense: Licences without SA
fied without individual permission. Such a      enable others to “monopolise” the content.
decision should, however, be weighed against    A record company could, e.g. take a music
the mentioned drawbacks of these licences.      song which was published under CC BY,
                                                remix it and market the result “unfree”
c)	SA - ShareAlike                              (i.e. commercially or against royalties).
                                                SA clauses prevent such “monopolisations”
Two CC licences contain the ShareAlike          through their viral effect on modifications.
element. SA means that adapted material
can only be published under the original or     When does the SA condition apply?
under a compatible licence. In CCPL4, the
SA clause (section 3b) states:                  SA applies to the publication of adapted
   “In addition to the conditions in section    material. Hence, the rule applies only
3(a), if You Share Adapted Material You         when a) the material is adapted and b) it
produce, the following conditions also apply.   is shared. SA does not oblige anybody to
                                                share adapted material. On the contrary,
1. The Adapter’s License You apply must         adapting the work and keeping it to oneself
   be a Creative Commons license with the       is perfectly legitimate.95
   same License Elements, this version or
   later, or a BY-SA Compatible License.        What does SA mean? Which licence must I
                                                use for the publication of adapted material?
2. You must include the text of, or the URI
   or hyperlink to, the Adapter’s License       There are three options to licence adapted
   You apply. You may satisfy this condi-       SA material, i.e. three options for the adap-
   tion in any reasonable manner based on       tor’s licence:96
   the medium, means, and context in
   which You Share Adapted Material.            1. The adapted material is shared under
                                                   the same CC SA licence as the original
3. You may not offer or impose any addi-           (e.g. CC BY-SA 4.0 International) or any
   tional or different terms or conditions         later version of this licence (e.g. CC
   on, or apply any Effective Technological        BY-SA 5.0 International).
   Measures to, Adapted Material that
   restrict exercise of the rights granted      2. The adapted material is licenced under a
   under the Adapter’s License You apply.”         CC licence with the same elements as
                                                   the original licence. This applies espe-

                                                          3. The Creative Commons licencing scheme   53
        cially to ported versions. A modified      single licence (e.g. BY-SA). In this case,
        picture which was initially licenced       both the BY-SA licence and the BY-NC-SA
        under CC BY-SA 3.0 Unported could          licence stipulate: “You can share the
        thus be shared under CC BY-SA 3.0          mashup (the adaptation) only under my
        Germany. Again, later versions of such     license terms.” Obviously, this is impossi-
        ported version could be used as well.      ble. The adaptor can only licence the
        Under CCPL4, this second option might,     mashup under either BY-SA or BY-NC-SA,
        however, become obsolete, as no ported     as both licences contain different and in the
        versions of the licences are planned as    end contradicting conditions. The BY-NC-
        of today.                                  SA licence prohibits commercial uses,
                                                   whereas the BY-SA licence permits them.
     3. The adapted material is licenced under     Hence, both licences are incompatible.
         a CC BY-SA “compatible licence.” At           The result is referred to as the “licence
         present, this third option is obsolete.   incompatibility problem.” A licence incom-
         Compatible licences are referred to as    patibility is a situation where the user can
         licences which have been approved by      comply with only one of two or more con-
         CC (see section 1c of the legal code and  flicting licence obligations. In other words:
         the referring link in the clause). The    The adaptor either violates one licence or
         clause was already contained in the       the other.
         CCPL3 licences. However, as of today          Licence incompatibilities are a big prob-
         not a single licence has been approved.   lem for free culture. Its central idea is to
                                                   create a pool of freely reusable content that
     According to section 3.b.3 of the legal code, can be mixed, mashed up and otherwise
     the adapter may not impose additional         combined easily. Licence incompatibilities,
     rules or further re-                                                  on the other hand, not
     strictions on down-        Licence incompatibilities                  only increase the legal
     stream users. In other                                                uncertainties of remix-
     words, if an adaptor
                                are a problem for the usability ing, they also prohibit
     used the initial licence of Open Content and free                     many potential uses.
     (e.g. CC BY-SA 4.0)                                                       The dimension of
     for their version, but     culture.                                   the licence compliance
     restricted the rights                                                 problem is illustrated
     in their general terms and conditions or      by the fact that most of the CC licences
     addenda to the CC licence, they would         are incompatible with each other; resulting
     violate the SA clause.98                      in the undesirable effect that content with
                                                   differing licences cannot be combined.
     Mixing SA material with Open Content              The following chart99 shows that 32 out
     under different licences – the licence        of 64 possible ways to combine differently-
     compatibility problem                         licenced CC works in a remix, mashup or
                                                   other larger work are not permitted.100
     As explained above, SA requires adaptors          The chart illustrates that the more re-
     to re-licence their modified material under   strictive the licence is, the less likely the
     the same licence. Let us imagine an adaptor   content can be mixed with others in a
     mixes BY-SA, BY-NC and BY-NC-SA video         larger work. The explanation is quite sim-
     snippets to create a mashup: As the compo-    ple: NC material can, for instance, not be
     nents of the mashup are indistinguishable,    mixed in a remix that will be published
     the new work has to be licenced under one     under a licence that allows for commercial

54   3. The Creative Commons licencing scheme
Chart 3: Possible combinations of CC content 101

                                                                                  
                                                                                  
                                                                                  
                                                                                  
                                                                                  
                                                                                  
                                                                                  
                                                                                  
use. Doing so would make the NC work            obstacle to this core objective. Moreover,
commercially usable since it will form part     they contradict the wish to make it legally
of the remix. SA material, on the other         possible to use the outstanding technical
hand, can only be re-licenced under the         possibilities to remix/mash up works.
same licence. SA works can therefore only           As SA licences (like all restrictive
be combined with other content that is          licences) amplify the problem of licence
published under a licence which allows for      incompatibility, their use should be consid-
the re-licencing under any other licence.       ered thoroughly. In general, the ShareAlike
The combination of CC BY-SA and CC BY           principle is convincing: Open content
content could, for instance, be licenced        should stay open in all its forms and itera-
under CC BY-SA because the BY licence           tions.102 Overly permissive licences enable
allows that.                                    the appropriation of Open Content by
                                                pulling it out of the cultural commons.
Commentary on the licence compatibility         On the other hand, permissive licences
problem in general and the SA licences in       are much easier to handle. It might even be
particular                                      argued that they provide more incentive
                                                to use the content. In the end, the licenser
Despite the increasing efforts to solve the     has to balance the different motivations: Is
compatibility problem one way or another,       it more important to ensure the openness of
it is undeniable that little success has been   the material (then CC BY-SA would be the
achieved so far. However, solving the com-      appropriate licence) or to encourage as
patibility problem may be regarded as a key     much interest in the use as possible (then
condition for the success of the whole sys-     CC BY should be used)?
tem. A “creative commons” in the proper
meaning can only serve its own purpose
when the content contained can be (re-)used
creatively. Incompatible licences are an

                                                          3. The Creative Commons licencing scheme   55

     1 The CC licencing model is explained here:                   article (footnote 14, p. 6): “The goal of this international                 porting project is to create a multilingual model of the
                                                                   licencing suite that is legally enforceable in jurisdictions
     2 Unless otherwise stated all references to CC licences       around the world.”
     refer to Version 4 (CCPL4). Regarding the different
     licence versions, see: chapter 3.1.                           16 The unported CC licences are not focused on a
                                                                   particular jurisdiction, neither in linguistic nor in regula-
     3 Usually the user will be asked to credit the author’s       tive terms, i.e. they should not be confused with the
     real name. If the licenced material refers, however, to a     (national) USCC licences. According to section 8f
     pseudonym or was published anonymously the user is            CCPL3, the terminology of the unported licences is
     requested to credit accordingly.                              based on international copyright treaties, like the Berne
                                                                   Convention for the Protection of Literary and Artistic
     4 See as to the details of the SA clause, see chapter 3.5     Works, the Rome Convention or the WIPO Copyright
     section c.                                                    Treaty. See:
     5 The “adapter’s licence” is defined in section 1b of the
     legal code. The term refers to the licence that a contribu-   17 Another problem with the application of US licences
     tor uses to share their adapted version of the work.          in Europe can be caused by moral rights regulations. In
                                                                   some nations, like the US, they can be waived by contrac-
     6 See also chapter 3.1, section b.                            tual agreement (e.g. by a licence). In other territories, for
                                                                   instance in some continental European authors’ rights
     7 See:                          jurisdictions such as France or Germany, they cannot be
                                                                   waived nor assigned to a third party and there are
     8 For the text, see:              restrictions on licencing.
                                                                   18 Even when ported licence versions are used for
     9 See for example: Kreutzer. 2011. Validity of the            transnational licencing, a number of problems may arise,
     Creative Commons Zero 1.0 Universal Public Domain             especially in the field of private international law which
     Dedication and its usability for bibliographic metadata       designates the applicable law in such cases. These issues
     from the perspective of German Copyright Law;                 cannot be elaborated upon in this guide. For further               information see: Maracke. 2010. Creative Commons
     file?uuid=29552022-0c9f-4b19-b6f3-                            International. The International License Project. JIPITEC,
     84aef2c3d1de&groupId=10602.                                   vol. 1, issue 1, recitals 33-38;
                                                                   issues/jipitec-1-1-2010/2417 and Jaeger/Metzger.
     10 See CC0 section 3 according to which the “affirmer”        2011. Open Source Software. 3rd edition. Beck, Munich.
     (the person who uses CC0 for her work) “grants to each        Recitals. 381-382 (in German).
     affected person a royalty-free, non- transferable, non-
     sublicensable, non-exclusive, irrevocable and uncondi-        19 See:
     tional license….” In short: The fall back licence permits     Asked_Questions#What_if_CC_licenses_have_not_
     any use whatsoever without conditions.                        been_ported_to_my_jurisdiction_.28country.29.3F.
                                                                   However, as it is also stated, official translations of the
     11 Regarding these questions, see: Kreutzer. 2011.            international version will be provided.
     Validity of the Creative Commons Zero 1.0 Universal
     Public Domain Dedication and its usability for biblio-        20 Such a clause has the effect of allowing the licensee to
     graphic metadata from the perspective of German               decide whether they want to use the material under the
     Copyright Law. p. 11 et seq.;             previous or the new licence version - after a new licence
     document_library/get_file?uuid=29552022-                      version was published. As such, newly introduced licence
     0c9f-4b19-b6f3-84aef2c3d1de&groupId=10602.                    versions can spread faster. Section 14 of the GNU
                                                                   General Public Licence version 3 is an example for such
     12 For more information on the Europeana Public               a clause.
     Domain Calculator, see:
                                                                   21 It should also be noted that the international versions
     13 See an overview at:          are available in many languages.
     A more detailed comparison including references to the
     different drafts of CCPL4 and the drafting process can        22 The international/unported licences do not contain a
     be found here:           choice of law rule. The clause that addressed this topic in
                                                                   CCPL3 (section 8f of the legal code) was not included
     14 For more information about the history of this process     into CCPL4.
     and the CC International approach, see: Maracke. 2010.
     Creative Commons International. The International             23 The determination of the applicable law depends on
     License Project. JIPITEC, vol. 1 , issue 1, p. 4-18;          the rules of “private international law.“ These rules can          vary from country to country. Hence, without a choice of
                                                                   law rule in the licence, it can occur that Canadian law
     15 Catharina Maracke, former project lead of the CC           determines a different applicable law than Spanish law
     International Project, writes in the aforementioned           for a licence that was concluded between a Canadian

56   3. The Creative Commons licencing scheme
rights owner and a Spanish user. The possible result is       sortile Fonografici (SCF) vs. Marco Del Corso, para-
that the applicable law differs from one licenser-licensee    graph 85;
relationship to the other.                                    document.jsf?text=&docid=120443&pageIndex=
24 Obviously, only users who read French can under-           1&cid=298306.
stand a French licence text. Furthermore, the national
licences generally use specific terms of the respective       33 According to the judgment of the ECJ, the patients of
jurisdiction. Their interpretation can be challenging even    a dentist are not a large group that qualifies for that
for foreign lawyers who are native speakers (e.g. Franco-     criterion. See: ECJ Case C-135/10 - Società Consortile
Canadian lawyers who have to apply French law).               Fonografici (SCF) vs. Marco Del Corso, paragraph 84;
25 E.g. in a case where a Russian user (licensee) uses the    document.jsf?text=&docid=120443&pageIndex=
article of a Brazilian author in their blog.                  0&doclang=EN &mode=lst&dir=&occ=first&part=
26 The rule is not easy to detect. It can be found in
section 2.a.5.B of the legal code, which reads: “Addi-        34 However, in the dentist’s case the ECJ did not assume
tional offer from the Licensor – Adapted Material. Every      that the succession of patients ultimately form a public
recipient of Adapted Material from You automatically          group. See:
receives an offer from the Licensor to exercise the           document.jsf?text=&docid=120443&pageIndex=
Licensed Rights in the Adapted Material under the             0&doclang=EN &mode=lst&dir=&occ=first&part=
conditions of the Adapter’s License You apply.”               1&cid=298306.
legalcode.                                                    35 In an ECJ case, the court held that a dentist practice
                                                              would not increase its income by playing radio programs
27 This is true at least as long as the adapter complies      in the office. See: ECJ Case C-135/10 - Società Con-
with the ShareAlike rule and chooses a legitimate adapt-      sortile Fonografici (SCF) vs. Marco Del Corso, para-
er’s licence. However if that were not the case, because,     graph 88;
e.g. the adapter used a BY-SA-NC for a modification of a      document.jsf?text=&docid=120443&pageIndex=
work that was initially licenced under BY-SA, they would      0&doclang=EN&mode=lst&dir=&occ=first&part=
violate the licence obligations. The effect would be that     1&cid=298306.
the licence for their version of the work was null and void   In another case it maintained, however, that for a hotel
because of the automatic termination clause until the         owner the reception of TV programs by guests had an
infringement was cured. See: chapter 3.4, section i.          economical impact on the business. See: ECJ case
                                                              C-306/05, Sociedad General de Autores y Editores de
28 Of course, adapters can and have to licence their          España (SGAE) vs. Rafael Hoteles SA, paragraph 44;
versions of the work themselves.                    
29 However, the NC restriction is also relevant for           &occ=first&part=1&cid=300896.
in-house uses. According to section 2.a.1.A of the CC NC
licences’ legal code, “reproduction” is permitted by these    36 E.g., if somebody listens to a radio sitting in a park,
licences only for non-commercial uses, i.e. the NC licence    they do not intend to entertain the passers-by – ergo
feature restricts not only uses that are directed to the      there is no public use.
public but also internal uses.
                                                              37 See: ECJ, Case C-466/12, Nils Svensson et al vs.
30 See the following section for the interpretation of the    Retriever Sverige AB, paragraph 24;
term “public.”                                      
31 E.g. sharing via password-protected servers that are
available only to certain users is perfectly compliant with   38 The ECJ also held in this decision that it was irrelevant
the SA provision. See the FAQ:                                if “the work appears in such a way as to give the impres-             sion that it is appearing on the site on which that link is
Questions#Can_I_share_CC-licensed_material_on_                found, whereas in fact that work comes from another
password-protected_sites.3F.                                  site.” This could mean that embedding content e.g. in
                                                              YouTube videos, is not making available under copyright
32 See: ECJ Case C-135/10 - Società Consortile                law and requires therefore no authorisation of the rights
Fonografici (SCF) vs. Marco Del Corso, paragraph 85;          owner.
document.jsf?text=&docid=120443&pageIndex=                    39 The distinction between commercial and non-com-
0&doclang=EN&mode=lst&dir=&occ=first&part=1&c                 mercial uses only becomes relevant with regard to CC
id=298306) Here, the ECJ maintained interalia that the        NC licences, see chapter 3.5 section a. It is a common
patients of a dentist practice were not “persons in           misunderstanding that copyright distinguishes between
general” but formed a rather private, non-open group.         commercial and non-commercial uses. The most essen-
Hence, “private groups” are not only friends and family       tial borderline is rather drawn between public and
but can also consist of persons without a personal            non-public uses.
relationship. See: ECJ Case C-135/10 - Società Con-

                                                                            3. The Creative Commons licencing scheme         57
     40 This is true at least from the copyright perspective.      sui_generis_database_rights.2C_how_do_I_comply_
     See: Jaeger/Metzger. 2011. Open Source Software.              with_the_license.3F.
     3rd edition. Beck, Munich. Paragraph 46 (in German);
     Meeker. 2012. The Gift that Keeps on Giving – Distribu-       51 In general, section 2.a.6 of the legal code explicitly
     tion and Copyleft in Open Source Software Licenses.           prohibits the insinuation of a relationship to the licenser
     International Free and Open Source Software Law               (“no endorsement”). The clause reads: “Nothing in this
     Review Vol. 4, Issue 1, p. 32.                                Public License constitutes or may be construed as
                                                                   permission to assert or imply that You are, or that Your
     41 Section 3.a.2 of the legal code states: “You may           use of the Licensed Material is, connected with, or
     satisfy the conditions in section 3(a)(1) in any reasonable   sponsored, endorsed, or granted official status by, the
     manner based on the medium, means, and context in             Licensor or others designated to receive attribution as
     which You Share the Licensed Material. For example, it        provided in section 3(a)(1)(A)(i).”
     may be reasonable to satisfy the conditions by providing a
     URI or hyperlink to a resource that includes the required     52 See section 4d CCPL3 Germany: https://
     information.” For details see the CC FAQ:           
     Questions#Can_I_insist_on_the_exact_placement_of_             53 The licence text, section 2.b.1 of the legal code,
     the_attribution_credit.3F and                                 states: “Moral rights, such as the right of integrity, are not            licensed under this Public Licence, nor are publicity,
     Questions#How_do_I_properly_attribute_material_               privacy, and/or other similar personality rights; however,
     offered_under_a_Creative_Commons_license.3F.                  to the extent possible, the Licensor waives and/or agrees
                                                                   not to assert any such rights held by the Licensor to the
     42 See:          limited extent necessary to allow You to exercise the
     Asked_Questions#How_do_I_properly_attribute_                  Licensed Rights, but not otherwise.”
                                                                   54 This rule, however, does not apply to trademark or
     43 See:              patent rights. They are addressed in a different clause,
     Users. Another informative source is a guide on how to        which was explained in chapter 3.4 section e.
     attribute CC licenced material, provided by CC Australia:                        55 For regimes that do not allow waivers of moral rights
     attributingccmaterials.pdf.                                   the clause provides a fallback option in the form of a
                                                                   non-assertion pledge, i.e. the licenser does not waive the
     44 See:          rights but agrees not to assert them.
     material_offered_under_a_Creative_Commons_license.3F.         56 Such questions are especially relevant for content
                                                                   published under licences that allow modifications.
     45 See:                     However, they can also be fundamental for uses of
     images/6/6f/Making_BY-NC_ (comparison).pdf.                   verbatim copies. The integrity right not only protects
                                                                   against modifications that distort the work, it can also
     46 See:                  (depending on the applicable law) prohibit uses of the                   original version in contexts that could harm the author’s
                                                                   reputation, including political campaigns.
     47 According to the German CCPL3 licences the
     licenser waives all database rights (see section 3 of the     57 See “Deliberately giving up control” in chapter 2.3,
     legal code, last sentence). The effect of such a waiver is    section c.
     that the licenser gives up the ownership in the database.
     Thus, all involved database rights cease to exist and no      58 To what extent the user is liable and what claims they
     licence can be granted anymore (no rights, no licencing).     might face depends on the applicable law.

     48 In the CC wiki, one can find further information about     59 For that reason, many CCPL3 ports for EU Member
     marking works with CC licences in different use- cases.       States contained adapted liability disclaimers to conform
     See for details:             to the national regulation.
                                                                   60 See: Directive 2001/29/EC, Art. 6.
     49 That means, on the other hand, if somebody used a
     CC licenced database in a jurisdiction where the applica-     61 The respective clause in CCPL3 that contained this
     ble law did not provide for database rights, the user would   provision was deleted in CCPL4. Section 7.a CCPL3
     not be bound by the licence obligations since CC does         states: “Individuals or entities who have received Adapta-
     not create rights that are not granted by the applicable      tions or Collections from You under this License, how-
     law. If no IPRs were granted, the CC licence would not be     ever, will not have their licenses terminated provided such
     applicable. See: section 2.a.2 of the legal code.             individuals or entities remain in full compliance with
                                                                   those licenses.” From a legal perspective this is self-
     50 Further details are explained at:                          evident, so the deletion of this clause should make no            difference from a legal perspective. See: http://

58   3. The Creative Commons licencing scheme
62 See the explanation in the FAQ:                             interpretation of the dichotomy between commercial             and non-commercial, their significance is very limited.
Creative_Commons_license.3F_If_that_happens.2C_                74 A German lawsuit recently revealed how unpredict-
how_do_I_get_them_back.3F.                                     able the outcome of legal disputes about these questions
                                                               can be. A German district court decided that a (non-
63 For reference, see footnote 62.                             commercial) public broadcaster, who had used a photo
                                                               on its website that was published on Flickr under NC
64 A recent study about the dissemination of different         acted commercially. That the broadcaster’s website was
CC licences in certain contexts showed e.g. that nearly        provided free-of-charge and displayed no ads, that the
70% of all images published under a public licence on          broadcaster was financed through an obligatory public
Flickr were published under an NC licence (see:                licence fee (German: “Rundfunkbeitrag”) and other facts                 that would oppose the notion of a commercial use, were
CC_in_zahlen_infografik2.pdf). An analysis of the              deemed irrelevant. See for more details: http://
Directory of Open Access Journals (also contained in this
study) revealed that 45% of the articles were licenced as      landgericht-koeln-sieht-deutschlandradio-als-
non-commercial, although 52,5 % were licenced under            kommerziellen-nutzer/22162 and the verdict:
CC BY.                                               
                                                               geschwärztes-Urteil-LG-Köln-2.pdf (both in German).
65 That is highlighted by the fact that the NC licences,       A short commentary in English can be found at: https://
as well as the ND variants, do not exhibit the “Approved
for Free Culture Works” logo on their licence deeds.           german-court-says-creative-commons-non-
66 See “Advantages and Disadvantages of NC licences”
in chapter 3.5, section a.                                     75 The licence text suggests that the NC clause relates
                                                               first and foremost to the particular use case, whereas the
67 For advantages, and especially disadvantages of NC          general classification of the user (as for-profit or not-for-
licences see: Klimpel. 2013. Free knowledge thanks to          profit) is a minor or even irrelevant factor. However, to
Creative Commons Licenses – Why a non-commercial               ignore the user-related factor would, in my opinion,
clause often won’t serve your needs,                           negate the view of licensers and licensees. For most               people’s notion of commercial/non-commercial uses it
CC-NC_Leitfaden_2013_engl.pdf.                                 will make a significant difference whether the user is e.g.
                                                               a company or a public institution. The results of the
68 See:              aforementioned CC NC study support this assumption
version-4-0-ist-da/ (in German).                               (see: “Advantages and Disadvantages of NC licences”
                                                               in chapter 3.4, section i).
69 See section 1.d. of the legal code: https://           76 The combination of both factors shows that, accord-
                                                               ing to CC, the NC restriction shall at least not only be
70 Obviously, it makes a huge difference if any use that is    interpreted from a user-related perspective. The CC FAQ
“directed towards commercial advantage” is considered          state: “Please note that CC’s definition does not turn on
commercial or only those, which are “primarily directed        the type of user: if you are a non-profit or charitable
towards…” If the former were true, even very remote            organization, your use of an NC-licensed work could still
commercial advantages would suffice to suggest a               run afoul of the NC restriction, and if you are a for-profit
commercial use. In the latter case, however, the commer-       entity, your use of an NC-licensed work does not neces-
cial purpose had to be a main objective.                       sarily mean you have violated the term. Whether a use is
                                                               commercial will depend on the specifics of the situation
71 See the blogpost on the CC website (including links         and the intentions of the user.” See:
to all material):   
Defining_Noncommercial.                                        Questions#Does_my_use_violate_the_NonCommercial_
72 From a legal perspective, the findings of the study can
be, very cautiously, used for a basic risk assessment. If it   77 Counter examples would be, e.g. a public museum
turned out in a broad survey that many creators did not        printing a CC BY-NC photo on a postcard that is sold.
consider a certain use commercial, there is some prob-         In that case the use would be commercial although the
ability that other licensers will share that opinion. Obvi-    institution itself is a non-profit organisation. Whereas, if
ously there is no guarantee that this applies to the           a company funded a foundation that conducted a project
particular case or that the argument stands up in court.       to foster the public health system and used an CC BY-NC
                                                               photo for the invitation to a conference (which was open
73 The survey reflects only the perception of certain          to the public and free-of-charge) the use would be
groups of licensers and licensees. Only US creators and        non-commercial.
users were interviewed. In addition, the questions related
solely to online content. Unfortunately it does not            78 If the company mentioned in footnote 77 would itself
consider the applicable law either. Hence, the findings        organise the conference, there would be a strong indica-
might reveal interesting facts. However, for the legal         tor that it served at least remotely its business interests,

                                                                             3. The Creative Commons licencing scheme          59
     i.e. that the use was at least “directed towards commer-        85 See in detail: Klimpel. 2013. Free knowledge thanks
     cial advantage.”                                                to Creative Commons Licenses – Why a non-commercial
                                                                     clause often won’t serve your needs, p.12; https://www.
     79 For example, if an employee of a company copies    
     articles that are licenced under CC NC for her col-             faden_2013_engl.pdf.
     leagues or customers of the company, the use is commer-
     cial, since she only uses the material to fulfil her            86 See, for instance, the explanation at: http://en.
     job-related duties.                                   

     80 See chapter 3.4, section b: The CC licences do not           87 See section 1.a. of the legal code: https://
     apply for uses that are permitted by law. Hence, the  
     licence would not restrict any uses that are legitimate
     according to limitations or exceptions under the applica-       88 The meaning of the term “sharing” is explained in
     ble law.                                                        chapter 3.4, section b.

     81 See e.g. the FAQ of the MIT OCP under:                       89 See: The MIT notion               nd/4.0/legalcode.
     of the NC clause is partly more restrictive and partly
     more liberal than my general interpretation.                    90 See also the FAQ: “What constitutes an adaptation
                                                                     depends on applicable law, however translating a work
     82 Since the interpretation, if any, of the licenser is a       from one language to another or creating a film version of
     relevant indicator for the interpretation of the licence,       a novel are generally considered adaptations. In order for
     from the mere legal standpoint it is recommended to             an adaptation to be protected by copyright, most national
     follow it. Apart from that, I think that also a moral per-      laws require the creator of the adaptation to add original
     spective suggests that the view of anybody, who voluntar-       expression to the pre-existing work. However, there is no
     ily dedicates their creative efforts to the commons,            international standard for originality, and the definition
     should be respected.                                            differs depending on the jurisdiction. Civil law jurisdic-
                                                                     tions (such as Germany and France) tend to require that
     83 An example: A printed book is directed at a different        the work contain an imprint of the adapter’s personality.
     audience than an online publication. It is marketed             Common law jurisdictions (such as the U.S. or Canada),
     through very peculiar distribution channels that are            on the other hand, tend to have a lower threshold for
     hardly accessible for “outsiders.” If a publisher adopted       originality, requiring only a minimal level of creativity and
     an eBook that was published online free of charge, the          'independent conception.' Some countries approach
     author would in most cases benefit from that. Even if the       originality completely differently. For example, Brazil’s
     publisher decided not to share any profits, the author          copyright code protects all works of the mind that do not
     would still benefit from the increased attention and            fall within the list of works that are expressly defined in
     potential rise in popularity.                                   the statue as 'unprotected works.' Consult your jurisdic-
                                                                     tion’s copyright law for more information.” See: https://
     84 It is worth mentioning, however, that a dual licencing
     strategy will not help to differentiate between copies of       Questions#What_is_an_adaptation.3F.
     the work in different qualities. The approach is compara-
     tively widespread as a business model: Image files in           91 Again: The CC licence restrictions, such as ND, do no
     low-resolution or low-quality music files are freely shared     prohibit what is legitimate under the applicable law. In
     under NC or other Open Content licences with the                some jurisdictions, remixes and mashups can be pub-
     intention and belief that the rights in high quality versions   lished without consent of the copyright owners. This is
     of the material are effectively reserved and can therefore      especially true for the US, where these acts can be legal
     be exploited commercially. This strategy is based on a          under the fair use doctrine. However, in present Euro-
     wrong legal assumption. The Open Content licence                pean copyright law no such rule exists. It is therefore
     applies to the work and not to the copy of the work. The        unlikely that mashups or remixes are subject to copyright
     work is the photo as the author’s individual creative           limitations in one of the member states. However, every
     achievement. That means that if low-quality copies are          copyright jurisdiction limits the protection of pre-existing
     shared under an Open Content licence, the licence               material against its use for the creation of new material to
     applies also to high-quality copies of the same work. If a      some extent. Under German law, e.g. a creator of a new
     user gets hold of a high-resolution copy, they can share it     work can be inspired by existing works. Defining the
     under the terms of the Open Content licence. Some               borderline between modifications that are subject to
     protection of the business model can be reached by              copyright and “free uses” which are not is therefore
     making high-resolution copies accessible on sites with          considerably difficult.
     limited access and pay walls only. However, this cannot
     prevent that possessors of high-resolution copies to share      92 Whether the collage is allowed under ND depends on
     them under the Open Content Licence. CC acknowledges            the technique applied. If the images are merely grouped
     this fact, see:           together, it is most likely not considered as an adaptation.
     quently_Asked_Questions#Can_I_apply_a_CC_                       If they are, however, merged into a new work with an
     license_to_low-resolution_copies_of_a_licensed_work_            aesthetic expression of its own, it will most probably be
     and_reserve_more_rights_in_high-resolution_copies.3F.           regarded as an adaptation.

60   3. The Creative Commons licencing scheme
93 Parodies of works will often require adaptation.           102 In fact, SA licences can efficiently protect certain
However, many jurisdictions provide a statutory excep-        kinds of projects, e.g. Wikipedia, from appropriation or
tion for parodies. In that case the ND restriction would      misuse. Wikipedia articles are licenced under CC BY-SA.
not be effective.                                             The licence ensures that the articles stay open, even after
                                                              they were extended, updated or improved. The use of
94 It should be noted again that the widespread appre-        BY-SA in Wikipedia is an aspect to be generally consid-
hension that the original creator is associated with          ered in one’s own licencing decision. Content under
modified versions of her work made by third parties is        incompatible licences cannot be combined with articles
unfounded. As already mentioned, the licence requires         from Wikipedia, which is currently the largest resource
anybody who shares adapted versions of the work to            for open knowledge in the world.
indicate that fact.

95 In relation to this argument, see section E.1.b.

96 The adaptor’s licence is defined in section 1b of the
legal code as “the license You apply to Your Copyright
and Similar Rights in Your contributions to Adapted
Material in accordance with the terms and conditions of
this Public License.”

97 See:

98 For example, an adapted version could be made
available on a website that obliges every user in its
general terms and conditions to report every use or to
resist from certain ways of redistribution. For further
information, see:

99 See:
CC_License_Compatibility_Chart.png. For more
information on CC0, see:

100 Combinations in terms of the chart are such that
qualify for adaptations according to the CC licences, see:
Creative_Commons_licenses_in_my_work.3F. Under this
assumption, ND material is always x-ed because it cannot
be modified (i.e. not even combined with public domain
material). However, also ND works can be combined with
otherwise licenced material if the combination is not
considered an adaptation (see for the details, chapter 3.5,
section b). In general, licence compliance issues arise
only in larger works (remixes, mashups, etc.). Mere
aggregations (collections) of material are not considered
an adaptation. Hence all works can be licenced under
their own terms without conflicts unless the works were
aggregated on a platform (such as Wikipedia) where
according to the platform policy all content has to be
published under the same licence.

101 CC explains the chart as follows: “The chart below
shows which CC-licenced material can be remixed. To
use the chart, find a licence on the left column and on the
top right row. If there is a check mark in the box where
that row and column intersect, then the works can be
remixed. If there is an “X” in the box, then the works may
not be remixed unless an exception or limitation applies.”

                                                                           3. The Creative Commons licencing scheme         61
62   4. Practical Guidelines: Using Creative Commons licences
                              4.	Practical Guidelines:
                                 Using Creative
                                 Commons licences

This picture of Pilea involucrata, the friendship
plant, was one of the finalists in the competition
“Picture of the Year 2012” which takes place
annually on Wikimedia Commons, the biggest
online media archive for Open Content.

                                                     4. Practical Guidelines: Using Creative Commons licences   63
     4.1 Choosing the                                           are actually in the licenser’s interest and/or
         “right” licence                                        even actually permitted by the licence (e.g.
                                                                in cases where interested users are put off
     The selection of the licence is an essential               by legal uncertainty).1
     step in an Open Content strategy. Advan-                       This does not mean that one should
     tages and disadvantages of the respective                  decide for CC BY, the most permissive
     licence should be thoroughly balanced be-                  licence, in all cases. As already mentioned,
     fore the material is licenced. The prevailing              there can be good reasons to opt for a more
     factor for the choice should be the individu-              restrictive licence type. However, as these
     al intention pursued with the licencing. One               will generally also have disadvantages for
     should ask oneself: Why do I licence my                    the licenser, it is recommended to carefully
     work under the CC scheme? Which rights                     weigh up the advantages and disadvantag-
     do I want to reserve and why?                              es. This is all the more relevant for broad
         The potential motivations behind such                  Open Content publication strategies of, for
     a decision are manifold. However, in many                  instance, companies or public institutions.
     cases the licence selection is based on
     intuition: “I do not want anybody to make                  4.2 Generating
     money with my work, so I use an NC
     license.” – “It should not be possible for a                   the licence
     publisher to adopt the publications of our
     foundation and generate profit with it.” –                 Attaching a CC licence to a work is very
     “I will not have anybody tampering with                    simple. The first step consists in going to
     my creative work, so I use an ND license.”                 the CC website which contains a “licence
     All of these arguments can often be heard                  chooser.”2 To choose a CCPL4 licence, two
     in numerous variations. They are, although                 questions need to be answered in order to
     perfectly understandable from a psycholog-                 determine the licence elements (ND, SA,
     ical standpoint, not a good basis for select-              NC). After that, the licence chooser dis-
     ing restrictive licences.                                  plays the respective licence and the respec-
         In the sections about the NC, ND and                   tive links to the licence text and the short
     SA clauses, I emphasised that the licence                  explanation of the licence features (the CC
     restrictions are always accompanied by the                 “Deed”). Moreover, an HTML snippet is
     risk of legal uncertainty. They lead to com-               automatically generated that can be inte-
     plex legal questions and prevent uses that                 grated into the code of websites.3

64   4. Practical Guidelines: Using Creative Commons licences
Licence chooser 4

                                                                               Choosing a licence
                                                                               On the website of Crea-
                                                                               tive Commons it is easy
                                                                               to choose an open
                                                                               licence according to
                                                                               one’s needs.

                    4. Practical Guidelines: Using Creative Commons licences                      65
                            The CC licences consist of three layers                    The ground layer is the “Legal Code,” i.e.
                            visualised in a graph on the CC website.5                  the full text of the licence contract, written
                                                                                       in “legalese.” This layer is the main element
                            The three layers 6                                         from a legal perspective, although most
                                                                                       non-lawyers will never read it in detail.
                                                                                       The middle layer is the CC Deed, also
The three Layers                                                                       known as the “Human Readable Version.”
of Creative Commons
licences as visualised on
                                                                                       The Deed is a short summary of the most
their website.                                                                         relevant terms and conditions of the licence.
                                                                                       The Deed is not itself a licence in the legal
                                                                                       sense. It serves only as a handy tool which
                                                                                       makes the rules of the licence easily un-
                                                                                       derstandable. As CC puts it: “Think of the
                                                                                       Commons Deed as a user-friendly interface
                                                                                       to the Legal Code beneath, although the
                                                                                       Deed itself is not a licence, and its contents
                                                                                       are not part of the Legal Code itself.“
                                                                                       The upper layer is the “Machine Readable
                                                                                       Version of the Licence.” It is a code snippet

                            The legal code 7

The Legal Text of
the Creative Commons
licences is the main
element from a legal

66                          4. Practical Guidelines: Using Creative Commons licences
The deed 8

                                                                                                          The Deed serves to
                                                                                                          help users understand
                                                                                                          the main criteria of the
                                                                                                          respective licence.

which will be implemented into websites         doms and obligations are summarised in a
enabling especially search engines to locate    machine-readable language, the CC Rights
Open Content. In the code, the key free-        Expression Language (CC REL).9

                                                                                                          HTML-Snippets enable
                                                                                                          search engines to find
                                                                                                          freely licenced content
   <a rel=”license” href=”                                            on the Internet.

   by/4.0/”><img alt=”Creative Commons License” style=”border-
   width:0” src=””
   /></a><br />This work is licensed under a <a rel=”license”
   Commons Attribution 4.0 International License</a>.

                                               4. Practical Guidelines: Using Creative Commons licences                         67
     4.3 Attaching Creative                                     be made. More in-depth information about
                                                                marking works with CC licences in different
         Commons licences
                                                                contexts can be found in the CC Wiki. 11
         to different works
                                                                Attaching the licence to web
     How to best practically attach a CC licence                content
     to a particular work depends on the media
     the material is published in. The basic                    Website providers use Open Content in
     principle is simple: The licence should be                 different ways. In some cases, all of the
     attached in a way which allows any poten-                  content on a website is licenced under the
     tial user to recognise the work, or even an                same licence. In this case, it might be sug-
     entire publication (e.g. a website or a book)              gested to implement a general licence
     as being licenced under a particular CC                    notice, e.g. in the footer of each webpage.
     licence. The licence notice is essential for               The wording of this general notice is irrel-
     the granting of usage rights: If the user is not           evant. CC itself uses this notice: “Except
     aware that a particular work can be used                   where otherwise noted, content on this site
     under a CC licence, and, more importantly,                 is licensed under a Creative Commons
     does not know the terms of the licence,                    Attribution 4.0 License.”
     no rights would be granted and no licence                       The hyperlink leads the user to the
     contract would be concluded.                               CC Deed of the CCPL4 BY licence. In the
         CC does not specify how the licenser                   Deed, anyone can find another hyperlink to
     should implement a licence in certain situ-                the full licence text. In addition, it is recom-
     ations. Please note that this question is not              mended to provide the particular licence
     the same as the question of how third party                logo as a banner in order to attract the at-
     content must be attributed.10 Where the                    tention to the licence notice. The full notice
     licence notice should be located, depends                  on the CC webpages, for instance, looks
     on the use-case. One rule of thumb applies                 like this:
     in general: The licence notice should be as
     evident as possible. The closer it is attached             The licence notice 12
     to the licenced work, the more likely it will
     be found by the user.
         The perfect way to apply a licence notice
     for example to a photo used on a website is
                                                                 Except where otherwise noted, content on
     to include it in the caption. The least feasi-
                                                                 this site is licensed under a Creative
     ble solution would be to include the licence
                                                                 Commons Attribution 4.0 International
     notice in a central place, e.g. a subdomain
     such as the “About” or “Terms of use”                       license.

     pages. Most users would not find such hid-
     den information and the licence would thus
     not be effective.
         In the following paragraphs some rec-                  It should be noted that it may be necessary
     ommendations for typical use-cases will                    to apply different notices to some particular

68   4. Practical Guidelines: Using Creative Commons licences
material. If someone published a photo on          tively, the full licence text could be included
their CC-licenced website which was CC-            in the document or book as well.18 If the
licenced by a third party under a different        entire publication was licenced under the
licence, this difference would have to be          same licence, a central licence notice
highlighted. In that case, the other licence       would be the best solution. In a book, e.g.
notice should be as closely attached to the        the licence notice could be printed in the
material as possible in order to prevent the       imprint or another prominent location.
assumption that the general licence notice         Please note that the more hidden the notice,
also applied to the particular photo. In fact,     the less likely it will be found and recog-
it would be appropriate to include the li-         nised by a potential user, contrary to the
cence notice in the photo’s caption, together      interest of the licenser.
with the attribution notices.13
    This would also be an appropriate ap-          Licence notices in videos, music, radio or
proach in cases where the website provider         TV shows
published Open Content only occasionally
(rather than licencing all content on the site     Giving adequate licence notices in non-
under the same public licence).                    textual publications can be tricky. Where
                                                   should the licence and attribution notices
Licence notices in digital documents or            be included in a radio broadcast? Where to
books                                              put such licences and notices in a video?
                                                   If such media was published online as well,
If a book or a PDF document contained              a simple solution would be to implement
occasional copies of Open Content works            the notices into their online source. If not,
(e.g. an occasional photo, text or graph),         the notices would have to be implemented
the aforementioned approach would also be          into the work itself. Due to the different
suitable. Ideally the notices (i.e. licence or,    nature of e.g. video and radio broadcasts,
if third party material, attribution) would        no general answer on how to do it can be
have to be attached directly to the respec-        given. However, since the original author
tive copy, e.g. in a footnote or a caption.        does not have to comply with licencing
In addition, the licence could be embedded         obligations,19 there are a variety of possible
into a PDF file by applying the Extensible         solutions.20 Again, the more prominent and
Metadata Platform (XMP).14                         descriptive these solutions are, the more
    Alternatively, it might be possible to         likely they will be noticed by users.
centralise the notices in an annex, which
should be as descriptive as possible.15 If,
however, someone chose such a solution,
there would have to be an evident recipro-
cal connection between the centralised
reference register and the particular work.16
Moreover, the licence notices should include
at least a reference to the licence text,17
e.g. a hyperlink to the CC website. Alterna-

                                                  4. Practical Guidelines: Using Creative Commons licences   69
     4.4 Finding Open                                           e.g. “content that can be freely used and
         Content online                                         shared,” “content that can be freely used
                                                                and shared also for commercial purposes,”
     Search engines are essential to finding                    etc. The Google Image Search features the
     Open Content on the web. Google pro-                       same function.
     vides a specific Open Content search func-                     Usually, users search for certain kinds
     tion which can be found in the “advanced                   of content. In this case, the use of content
     search” options.                                           platforms might be more convenient than
         The advanced search option allows us-                  the use of general search engines. There
     ers to filter the search results according to              are several platforms for images, videos or
     usage rights. Several options can be chosen                even music which allow searching specifi-
     to limit the search results, these include,                cally for Open Content.

     Google: Advanced Search 21

70   4. Practical Guidelines: Using Creative Commons licences
A)	Searching for Open Content

Flickr is the world’s largest photo communi-
ty. Millions of images are uploaded onto the
platform, many of which are licenced under
CC licences. To find them, the advanced
search offers a respective setting:

Flickr: Advanced Search 22

                                               4. Practical Guidelines: Using Creative Commons licences   71
     Another large image archive is the Wikimedia Commons Database. Most of the photos
     contained therein are published under a public licence or even dedicated to the public

     Wikimedia Commons 23

72   4. Practical Guidelines: Using Creative Commons licences
B)	Searching for Open Content videos

The video platform Vimeo is particularly progressive in the field of Open Content. It ena-
bles the user of self-created content to choose a CC licence before uploading the video
content to the site. Moreover, if someone searches for certain content, there is a link called
“advanced filters” which contains an option to search for CC licenced content.

Vimeo Search 24

C)	Searching for Open Content with the meta-search-function
	of Creative Commons

The CC website features a special search function for Open Content of different types.
It allows a user to search on a number of platforms including YouTube, Jamendo (music),
SoundCloud (music) or Europeana (multiple kinds of works).

Creative Commons Search 25

                                               4. Practical Guidelines: Using Creative Commons licences   73
     1 See the remarks in chapter 3.5, section a, b, and c.         16 One should provide at least the page number, or, if
                                                                    more than one third party work is used on the same page,
     2 To open the licence chooser click the link “choose a         further identifiers.
     licence” on the homepage http://www.creativecommons.
     org. The direct link can be found at:                          17 Apart from the licence text location, the notice should                           name the licence and its version. See the example from
                                                                    the CC website in “Attaching the licence to web content”
     3 For online publications it is highly recommended to          in chapter 4.3.
     copy and paste metatags into the site’s source code.
     Proper meta-information is essential especially for search     18 Such a solution will, however, hardly be suitable if the
     engines in order to interpret the licence information          publication contains content from third parties that was
     properly and thus create correct search results.               released under a number of different licences

     4 Source: Creative Commons, https://creativecommons.           19 For the argument see footnote 13.
                                                                    20 For the issue of proper attribution in such media,
     5 See:           see the CC publications about proper crediting at:
     6 Source: Creative Commons, https://creativecommons. 
     org/licenses/?lang=en.                                         attributingccmaterials.pdf.

     7 Source: Creative Commons, https://creativecommons.           21 Source: Google,
     org/licenses/by/4.0/legalcode.                                 advanced_search.

     8 Source: Creative Commons, https://creativecommons.           22 Source: Flickr,
     org/licenses/by/4.0/.                                          advanced/.

     9 Find more information about the embedding of licence         23 Source: Wikimedia Commons, http://commons.
     concerning metadata of licences at: http://wiki.     
                                                                    24 Source: Vimeo,
     10 The initial implementation of the licence is the
     licenser’s task. The licenser is not the licensee, i.e. they   25 Source: Creative Commons,
     themselves are not bound to the terms of the licence 
     they use for their content. The attribution issue, however,
     addresses the licensees of other people’s work.

     11 See:
     Marking_your_work_with_a_CC _license.

     12 Source: Creative Commons,

     13 For the attribution requirements for the use of third
     party material see chapter 3.1, section a.

     14 See:

     15 The chapter could, for instance, be titled:
     „License notices for third party material.“

74   4. Practical Guidelines: Using Creative Commons licences
5. Final Remarks

Open Content licences have the great potential of making it possible to share copyright-
protected content with others in a legally feasible and transparent way. However, one
needs to be aware of potential pitfalls. This is true for both, the right holder and the user.
   Not only to be legally compliant, but also in order to respect the rights of those who
share their creative efforts freely with others, every user should be aware of their duties
and obligations. On the other hand, those who would like to publish their content under a
public licence should take an informed decision about the licence they choose. The tenden-
cy to use restrictive licences, e.g. NonCommercial licences, is problematic for the free cul-
ture movement in general and can jeopardize the sharing of content, thereby most likely
undermining the right holder’s original objectives. It is therefore of utmost importance to
think carefully about which licence will best meet one’s own particular intentions.

                                                                                 5. Final Remarks   75
76   4. Practical Guidelines: Using Creative Commons licences
                             Subject index

The first cultural hackathon “Coding da Vinci”
took place in 2014. It brought together coders,
designers and cultural enthusiasts in order to
gain new insights into cultural heritage data.
This image of a scarab beetle is part of one of
these datasets, donated by the Museum for
Natural History Berlin.

                                                  4. Practical Guidelines: Using Creative Commons licences   77
     A                                                              M
     Adaptation: 23, 30 ff., 34 ff., 48 f., 52 ff.                  Mashup: 23, 49 ff., 52, 54 f.
     All rights reserved: 9,12, 14 f.                               Modification: 8, 13 f., 16, 23, 30 f., 34 f., 40 f., 48 ff., 52 ff.
     Attaching a licence: 68 f.                                     Moral rights: 41 f.
     Attribution: 28, 38 ff.
     Authors’ rights: 12 ff., 16 ff., 19 ff., 22, 31 f., 41 f.
                                                                    No Rights Reserved: cf. CC0
     B                                                              NoDerivatives: 28, 48 ff., 51 ff.
     Benefits of Open Content: 9, 13 ff., 22 f.
                                                                    NonCommercial: 28, 43 ff., 46 ff.
     Broad distribution: 8, 13 f., 22, 30, 35 f., 38, 47 f.
                                                                    Non-commercial vs. commercial: 19 ff., 34 f., 43 ff., 46 ff.

     C                                                              O
     CC0: 31 f.
                                                                    Obligations of users: 34 ff., 37 ff., 40, 43 ff.
     CC BY: 29 f.
                                                                    Open Educational Resources: 52
     CC BY-NC: 30 f.
                                                                    Open source software: 12 ff.
     CC BY-NC-ND: 31
                                                                    Ownership of rights: 18 f., 22, 31, 35
     CC BY-NC-SA: 31
     CC BY-ND: 30
     CC BY-SA: 30                                                   P
     Centralised licensing scheme19 ff.                             Patents: 41
     Choosing a licence: 64                                         Personal rights: 41 f.
     Collection: 49 ff.                                             Ported licenses: 32 ff.
     Combination : 22 f., 30 f., 49 f., 54 f.                       Practical effects: 16 ff., 22 f.
     Commercial vs. non-commercial: 19 ff., 34 f., 43 ff., 46 ff.   Preconditions: 18 f.
     Commons (digital, cultural): 8, 12 ff., 52, 55                 Privacy: 41
     Copyleft principle: 13, 23, 48                                 Public: 36 ff., 46
     Copyright infringement: 18, 22 f., 42 f.                       Public domain: 9, 12, 22, 31 f.
     Creative Commons: 12 f., 28 ff.                                Public domain mark: 32
     Crediting (requirement): 38 f.                                 Public domain tools: 31 f.
                                                                    Private use: 36, 46
     Database rights: 40 f.
     Decentralised licensing scheme: 19 ff., 33                     R
     Deed: 64, 66 ff.                                               Remix: 8, 13 f., 23, 49 ff., 54 f.
     Disclaimer of warranties: 39, 42 f.                            Republication: 21 ff.
                                                                    Royalties: 14, 17

     Enforcement: 22, 47, 52                                        S
     European Copyright Directives: 37 f., 43, 49                   Search engines: 70
                                                                    ShareAlike: 28, 53 ff.
                                                                    Sharing: 36
     F                                                              Some rights reserved: 9, 14 ff
     Finding Open Content online: 70
     Free software; 12 ff.
                                                                    Technological Protection Measures: 43
     G                                                              Termination of a license: 22, 43
     Generating a license: 64 ff.                                   Trademark rights: 41
                                                                    Traditional copyright regulations : 8 f., 12 ff., 15 ff.
                                                                    Translation: 13, 34, 49
     Intellectual Property Rights: 9
                                                                    Unported (generic) licenses: 32 ff.
     Legal code: 66
     Liability: 42 f.                                               W
     Licence chain: 18 ff, 35                                       Wikipedia: 19 ff., 30
     Licence chooser: 64 ff.
     Licence contract: 18 ff., 21 f.
     Licence incompatibility: 22 f., 54 f.
     Licence notice: 18, 29 f., 39, 68 f.
     Licence violation: 22, 42 f., 47, 52

78   Subject Index