Creative Commons

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OVERVIEW

Creative Commons licences (also referred to as CC licences), permit the copying, the reuse, the distribution, and in some cases, the modification of the original owner’s creative work without having to get permission every single time from the rights holder. The Creative Commons licence is associated with a broad movement looking for a re-balancing of intellectual property rights legislation.

This article is the Creative Commons Licences Briefing Paper which forms one component of the Strategic Content Alliance IPR Toolkit. It is licenced for use under the Creative Commons Attribution-Noncommercial Works 2.0 UK: England & Wales Licence.

Introduction

The purpose of this briefing paper is to provide content creators and other Strategic Content Alliance stakeholders with information that can be used to make judgements as to when the use of open content licences, particularly Creative Commons licences may be appropriate. Examples of such usage might be:

The creation of e-learning materials by staff,
The display of holdings of museums and galleries;
The dissemination of popular material for the public;
The dissemination of broadcasts, and
The output from research work (both data and text).

In addition organisations need to know when external Creative Commons licensed materials can be used as part of their own materials and what the limitations on the use of such materials are. This document focuses on Creative Commons licences although there are other open content licence models including Creative Archives and AEShareNet, which have comparable characteristics.

Please note: this guidance has been prepared for information purposes only and is not, nor is intended to be, legal advice. This information is not intended to constitute, and receipt of it does not constitute, a contract for legal advice or the establishment of a solicitor-client relationship.

Open Content Licences Generally

Open content licensing is a way for the author or rights holder of a copyright work to grant a wide range of permission for use and re-use of their work via a non-transactional copyright licence, while retaining a relatively small set of rights. In other words, permission is pre-granted to the user, without requiring the user to request permission every time they wish to use the work. This style of licensing, like any other, can usually only be used on works by someone who owns the copyright in the work or otherwise has permission to do so. Those who create works can use the licences to protect their works while encouraging certain uses of them.

Creative Commons

Creative Commons is a licensing system under which authors or producers of a work offer some of their rights to others to re-use their work under certain specified conditions. The licence is attached to the content and is available in various forms (see Nuts and Bolts below), allowing the rights holder to retain a level of control over how their work is treated. Creative Commons licences have various advantages, including ease of use, widespread adoption and familiarity, choice and flexibility, human-readable, machine-readable and symbolic representations of the licences, and a direct link between the resource and its licence.

Nuts and Bolts

Works created under Creative Commons (CC) licences can be copied at no charge. Furthermore, there is no fee payable for employing CC licences. They allow creators to easily grant permission for use of their works, by using user-friendly symbols. A simple set of terms and conditions enables users to recognise the types of usage the rights owner is offering. Creative Commons licences allow rights holders to maintain a basic level of control by offering something between an ‘all rights reserved’ copyright licence and waiving all of their rights.

The main Creative Commons licences offer a series of ‘baseline rights’ together with four ‘licence elements’ that can be mixed and matched to produce a customised licence through a point-and-click web interface:

Attribution (BY) – you must credit the licensor of the work;
Non-Commercial (NC) – you can only use the work for non-commercial purposes;
No-Derivatives (ND) – you may not create adaptations of the work; and
Share Alike (SA) – you may create adaptations of the work, but these must be under the same licence as this work.

Attribution forms a part of all CC licences. These four elements lead to the six basic CC licences, with their common abbreviations in brackets:

Jurisdiction-specific licences are available for Scotland, and England and Wales. There is not a variant for Northern Ireland at present.

Creative Commons licences are normally attached to the digital content and authorise anyone who copies the work to use it in accordance with the terms of the licence. This means that if one user has a copy of a Creative Commons-licensed work, that user can give a copy to a second user and the second user will be authorised to use the work consistent with the original Creative Commons licence. As a consequence of this, the original rights owner has a licence agreement separately with both the first and second user. Further users are similarly able to use the work consistent with the terms of the licence.

EXAMPLE: Creator A authors material which she marks as licensed as Attribution - Non-Commercial (BY-NC). Author B can use all or parts of A’s material to compile their own work so long as the use is non-commercial and is attributed. B must mark his own work as (BY-NC) (or at least the parts which came from Creator A). If Author C plans to use some of B’s material which consists of Creator A’s work then C’s use is also restricted to Attribution - Non-Commercial.

Recent developments in Creative Commons licensing have included the Creative Commons Plus licence and the Creative Commons Zero licence. The Creative Commons Plus Licence facilitates the add on of an additional licence on to the Creative Commons licence in order to facilitate the granting of more permissions by the content creator to the user, thus introducing greater flexibility to the type and range of permissions that are granted. Using the Creative Commons Zero Licence creators are able to waive all copyrights and related or neighbouring interests that they may have over a work such as moral rights, publicity or privacy rights, rights protecting against unfair competition and any rights protecting the extraction, dissemination and reuse of data. Like all uses of Creative Commons licences, these permissions can only be granted if the creator holds the necessary rights for the work.

The Licence Agreement

The contractual status of Creative Commons licences differs by jurisdiction. In Scotland, Creative Commons licences are regarded as a contract. In England and Wales, for a licence to have contractual force, some form of consideration is normally necessary. Consideration “…may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other” (Currie v. Misa (1875) L. R. 10 Ex. 153, 162). The English and Welsh licence itself specifies that:

‘’“…the licensor grants you the rights contained here in consideration of your acceptance of such terms and conditions.”’’ (http://creativecommons.org/licenses/by-nc/2.0/uk/legalcode)

The text of the licence itself does not refer to contract law. A valid contract in English law requires an agreement (consisting of an offer and acceptance). Acceptance is usually established by the signing of an agreement. However, even without a signature, acceptance can be inferred by the conduct of the person who has been made the offer. So, if that person carries out their side of the agreement, then a valid acceptance can be implied and a contract is formed. Whether the acceptance and consideration criteria are met in any particular case will depend upon the actions of the parties involved. If it is tested in court and it is determined that the conditions are not sufficient to have formed a valid contract, it is likely that the Creative Commons licence will be unenforceable.

A Policy Decision

Organisations need to be able to both license in materials from outside as well as to control how their own materials are used. Sharing resources amongst similar organisations makes sense financially, and there are many policy reasons to do so. Digital resources produced by publicly funded organisations are a valuable asset to the community. Many people in the sector believe that access to and use of these digital resources could be better and that the wider use of open content licences would help to improve the situation. Creative Commons licences enable organisations to release electronic materials to the wider community. This attitude of creating and sharing knowledge resonates with the culture of the sector.

What Your Organisation Should Know

Below is a non-exhaustive list of factors to be considered before deciding to implement the use of Creative Commons licences for materials produced by staff, volunteers or other third parties.

The Benefits/ Advantages of Using Creative Commons Licences

Simple Legally

They provide a quick solution to the complexities of content licensing by content creators and rights holders. For example Content creator Z can attach symbols to the electronic version of his work and those who access the content will know what rights they have to copy and then use the material.

For example: Content creator Z can attach symbols to the electronic version of his work and those who access the content will know what rights they have to copy and then use the material.

Easy Sharing and Re-use of Information and Resources

Institutions may need to adapt and develop resources to meet different requirements from that intended by their original creators. The Creative Commons derivative work licence allows materials to be re-used in this way.

Flexibility

Creative Commons licences are available in three formats, including machine readable code which can be processed by search engines. This is also useful for tracking licence usage.

Improved Access

Digital resources produced by publicly funded organisations are a valuable asset to many communities. . Access to, and easy use of, these digital resources could be better; the wider use of open content licences would help to improve the situation.

Administrative Simplicity

One of the benefits of Creative Commons licences lies in their ability to be clearly and simply administered. Creative Commons licences allow some level of control, but without introducing a need to manage complex variants. The flexibility of the Creative Commons icons system enables individual works within a large collection to carry different licence terms. This avoids having to grant a licence for all items in a collection and means some components can be more freely used than those governed by more restrictive licences. This removes the need for lengthy negotiations. Creative Commons licences are also non-transactional and so using content issued under a Creative Commons Licence removes the requirement for requesting permission from the rights holders every time a work is used.

The case against …

Uses and Reuses

Creative Commons licences may be unsuitable for certain types of outputs. Organisations may wish to permit certain types of re-use of the licensed material but not necessarily all. Unfortunately, the Creative Commons licences do not make such subtle distinctions. The non-derivative licences do permit incorporation of material into larger works but once a licence grants derivative use, there is no control over subsequent re-use.

Third-party Content

Creative Commons licences cannot be used to make material available for which third parties own the rights, unless they have explicitly granted permission for this use. Where there is unauthorised use of third-party content, this will invalidate the licences. Because of the viral nature of Creative Commons licence distribution, an organisation who has made outputs available under a Creative Commons licence, may find it difficult or even impossible to withdraw this material if an infringement of this type has occurred, and possibly face penalties. These additional risks will need to be assessed and managed.

Uncertain Legal Status

There is some lack of clarity with regard to the enforceability of CC licences. A licence must satisfy local law and its validity will vary according to the legal jurisdiction by which it is tested. There is also some uncertainty about the legality of using Creative Commons licences in the context of authenticated or restricted access services.

Modification

The consequence of permitting others to use materials within the terms of the Creative Commons licence is that they will be able to copy, use and adapt the work. Risks arise that the work might be substantially modified in ways that the creator or licensor feels would undermine the work’s integrity. CC licences offer a stark choice - permit no re-use or agree to unlimited re-use.

‘Commercial’ or ‘Non-commercial’

One of the main issues with Creative Commons licences is whether a resource can be used for ‘commercial’ or ‘non-commercial’ purposes. Unfortunately, the licence itself does not clearly distinguish the difference. Organisations providing purely commercial services need to clarify whether material licensed in this way will be available to them. If an organisation plans to sell materials at some date in the future, it should not offer them with a CC licence at any stage.

Irrevocability

The irrevocability of the Creative Commons licences represents another lack of flexibility for institutions which might otherwise adopt these licences. There are a number of scenarios where rights owners initially made available a resource on the basis of a Creative Commons licence and subsequently wished that all copies had been licensed in accordance with a different licensing regime. If this scenario is a real possibility, then CC licences should not be used.

Databases

The Database Right is not explicitly covered in the Creative Commons licence, which might cut off a range of resources to this form of licensing. The Creative Commons licences are not entirely clear about whether extraction from databases is permitted or not. A great deal of the re-use of material is for this purpose, and this may operate as a constraint on the adoption of Creative Commons licences in some circumstances.

Issues for staff and employers

Staff are often in favour of people re-using their material. However, often it is not clear whether or not their employer, owns the copyright in the work. Some staff see themselves as the owners of the rights because of the way content is created. If the organisation has a policy of using Creative Commons licences for work produced by staff, this might go some way to resolving these issues. Uncertainty can largely be avoided by the organisation having an intellectual property policy which provides clarification with regard to the ownership of rights in staff-produced work.
Where staff produced work involves collaboration with commercial partners, it is likely that agreements will have been reached in advance with the commercial partner with regard to the ownership of the intellectual property rights created as a result of this work. This may restrict what sharing can subsequently be done by means of Creative Commons licences. Materials that are expected to generate commercial gain are unlikely to be suitable for Creative Commons licensing. Equally, because some Creative Commons licensed material may already be restricted to non-commercial use, it is necessary to ensure that third party materials obtained through a CC licence to be used for commercial activities are indeed available for such commercial use.
Funding bodies may insist that outputs from funded work is made freely available, and the Creative Commons licences offer a way of complying with such a requirement.

The licences reflect a different spirit to many other forms of licences. They allow minimal levels of control over freedoms to use copyright works, rather than allowing limited permissions. This fits well with the general ethical and philosophical stance of the Strategic Content Alliance community, and is a significant reason why Creative Commons has penetrated the sector both in terms of finding support and of the usage of CC licences by rights holders.

One of the main attractions of Creative Commons licences is their simplicity. The ease with which they can be placed on digital materials will help people who create such materials.

When someone who is developing content wants to incorporate material which has been licensed under Creative Commons into their own materials, it is essential that the re-use which is anticipated complies with the terms of the licence. If it is expected that these materials will be put to non Creative Commons licensed use, it may be appropriate to use another form of licence arrangement for the materials or to use home-made materials.

A Creative Commons licence cannot make infringing material lawful. If a section of material is included in Creative Commons licensed work for which there was no licence or other permission to use it in the first place, then this may be copyright infringement. The Creative Commons licence is invalid with respect to the infringing elements of the licensed work and any additional use of the infringing elements is likely to be a further breach of copyright.

Conclusion

Creative Commons and similar licensing frameworks are a significant development and have valuable potential application in fulfilling the need for wide and unobstructed access to electronic materials as well as a flexible and enabling approach to use and re-use of outputs and materials. Although Creative Commons may be suitable for many applications, this may not be the case where commercial considerations and third party rights issues are present.

It is recommended that organisations should evaluate the use of Creative Commons licences carefully case-by-case, and should not assume that it is automatically the right or wrong solution. At the operational level, those who are using the licences need to understand copyright issues and rights management. Getting the right version of the licence for the particular material is important and the way ahead, it is suggested, is to experiment through practical usage, while closely monitoring the outcomes and the risks that arise along the way.

At a strategic level, committing to the irrevocable terms of Creative Commons licences raises issues of broader access and commercial goals for organisations. The use of Creative Commons licences should be a policy decision and should form part of the overall intellectual property policy of organisations, where the full implications can be examined and understood.

Links to IPR Toolkit Resources as PDFs

IPR Toolkit

Background papers

Creative Commons Licences

Web 2.0 and IPR

Web 2.0 and Legal Issues

Reports

IPR Toolkit Overview

IPR Case Studies Full Report

Practical tools

3.1 Getting Permissions

3.2 IPR Risk Assessments

3.3 Terminology Toolkit Paper

3.4 Top Tips for Issuing Licences

3.5 Top Tips for Requesting Licences

3.6 Model Consent

3.7 IPR Model Licence

3.8 Template Email Permissions Form

3.9 IPR Template Permission Letter

3.10 Rights Management Template

3.11 IPR FAQs

3.12 Model Contractual Clauses for Requesting Permission from Staff

3.13 Example Consortium Agreement

3.14 Model Contractual Clauses for Requesting Permission from Students/Volunteers

3.15 Model contractual clauses for requesting permission from freelancers/subcontractors

3.16 Template Terms and Conditions of Service

Template policy statements

2.1 Draft Institutional IPR Policy Statements

2.2 IPR and Licensing Blue Print for Funding Bodies and Recipients of Funding

Further information

General resources

Intellectual Property Office: Overview of the legislative framework and policy issues/developments regarding Intellectual Property Rights

Office for Public Sector Information: Information about Crown Copyright material, click use licence for reusing Crown Copyright material and access to the consolidated copyright legislation.

British Library Business and IP Centre: Provision of resources, support and advice relating to the creation and exploitation of IP within a business context

Licensing schemes and open content licensing initiatives

Copyright Licensing Agency (CLA)

Design and Artists Copyright Society (DACS)

Creative Commons

Resources for health professionals

National Library for Health

Resources for schools, colleges and universities

JISC Digital Media Online Image Finding Tutorial: Interactive tool providing information about how to find images online which can be used with the least amount of restrictions

Web2Rights Project: JISC funded project providing interactive copyright and other legal issues tools, resources and charts for use by JISC funded projects

JISC Casper: Interactive tools and associated resources for dealing with copyright issues in schools and projects who are reusing content

JISC IPR and Web2.0 Animation: IPR and Web2.0 animation commissioned by JISC and built around the Web2Rights project deliverables

Becta: Information about IPR for schools

JISC IPR Consultancy: Briefing documents about IPR and monthly IPR Newsletter

JISC Open Content Licences Overview Paper: Overview paper providing guidance about the use of open content licences for JISC funded projects

JISC Model Licence Interactive: Interactive tool which provides an overview of the benefits of the JISC Model Licence

TrustDR Project: JISC funded project providing supporting documentation relating to the establishment of a digital rights management system for repositories

JISC Legal: Support for HEIs and FEIs on legal issues

OSS Watch: Support for HEIs and FEIs on open source licences

Resources for the cultural heritage sector

Collections Link: Comprehensive resources relating to IP and licensing for cultural heritage bodies

UKOLN

Harvested links

Copyright Essentials: A Collections Trust factsheet providing an introduction to copyright law for the non-specialist collections manager. [?]
Training Course: Copyright Essentials: This training course provided by Museums Galleries Scotland offers an introduction to the principles of copyright within the context of caring for collections. It offers basic and practical training, [?]
New guide to copyright for cultural heritage organisations: The Collections Trust is delighted to announce the publication of a new guide to copyright for cultural heritage organisations. [?]

Collections Management Network website: Collections Management Network (CMNetwork) is a consortium of consultants, advisers and trainers with expertise in collections management. We work together to provide practical, authoritative, cost ef [?] <span id="fck_dom_range_temp_1287584946184_396" />

[[Role::newcomer]] [[Role::strategy manager]] [[Role::policy maker]] [[Role::project manager]] 
[[Role::content manager]] [[Role::acquisitions manager]] [[Goal::managing]] [[Goal::copyright]] 
[[Goal::IPR]] [[Goal::legal]] [[Level::basic]] [[Level::medium]] [[Level::deep]]

Views

Creative Commons

From Digipedia

Contents

OVERVIEW

Introduction

Open Content Licences Generally

Creative Commons

Nuts and Bolts

The Licence Agreement

A Policy Decision

What Your Organisation Should Know

The Benefits/ Advantages of Using Creative Commons Licences

Simple Legally

Easy Sharing and Re-use of Information and Resources

Flexibility

Improved Access

Administrative Simplicity

The case against …

Uses and Reuses

Third-party Content

Uncertain Legal Status

Modification

‘Commercial’ or ‘Non-commercial’

Irrevocability

Databases

Issues for staff and employers

Conclusion

Further Reading

Links to IPR Toolkit Resources as PDFs

Related Digipedia links

Further information

Harvested links