These lecture notes adapted from Creative Commons Certificate for Educators and Librarians and are used under a CC BY 4.0 License.   

Purpose of Creative Commons Licenses

The internet has given us the opportunity to access, share, and collaborate on human creations (all governed by copyright) at an unprecedented scale. The sharing capabilities made possible by digital technology are in tension with the sharing restrictions embedded within copyright laws around the world.

Creative Commons was created in 2002 to help address the tension between creator’s ability to share digital works globally and copyright regulation. A nonprofit organization called Creative Commons published the Creative Commons licenses—a set of free, public licenses that would allow creators to keep their copyrights while sharing their works on more flexible terms than the default “all rights reserved.” Copyright is automatic, whether you want it or not. And while some people want to reserve all of their rights, many want to share their work with the public more freely. The idea behind CC licensing was to create an easy way for creators who wanted to share their works in ways that were consistent with copyright law.

Watch this short video, A Shared Culture, to get a sense for the vision behind Creative Commons.

Today Creative Commons licenses are used by more than 1.4 billion works online across 9 million websites.  For a creative take on Creative Commons and copyright, check out this song by Jonathan “Song-A-Day” Mann about his choice to use CC licenses for his music.  The XKCD comics guy also uses Creative Commons licenses on his work.

Types of Creative Commons Licenses

All Creative Commons licenses are structured to give the user permission to make a wide range of uses as long as the user complies with the conditions in the license. The basic condition in all of the licenses is that the user provides credit to the licensor and certain other information, such as where the original work may be found.

Copyright operates by default under an “all rights reserved” approach. Creative Commons licenses function within copyright law, but they utilize a “some rights reserved” approach. While there are several different CC license options, all of them grant the public permission to use the works under certain standardized conditions. The licenses grant those permissions for as long as the underlying copyright lasts or until you violate the license terms. This is what we mean when we say CC licenses work on top of copyright, not instead of copyright.

A CC licensor makes a few simple decisions on the path to choosing a license– first, do I want to allow commercial use, and second, do I want to allow derivative works (also known as adaptations)?  If a licensor decides to allow derivative works, they may also choose to require that anyone who uses the work—we call them licensees—make their new work available under the same license terms. This is what is meant by “ShareAlike” and it is one of the mechanisms that helps the digital commons of CC licensed content grow over time. ShareAlike is inspired by the GNU General Public License, used by many free and open source software projects.

These different license elements are symbolized by visual icons:

This symbol means Attribution or “BY.” All of the licenses include this condition.

This symbol means NonCommercial or “NC,” which means the work is only available to be used for noncommercial purposes. Three of the CC licenses include this restriction.

This symbol means ShareAlike or “SA,” which means that adaptations based on this work must be licensed under the same license. Two of the CC licenses include this condition.

This symbol means NoDerivatives or “ND,” which means reusers cannot share adaptations of the work. Two of the CC licenses include this restriction.

To really understand how the different license options work, let’s dig into the different license elements. Attribution is a part of all CC licenses, and we will dissect exactly what type of attribution is required next week. For now, let’s focus on what makes the licenses different.

 Commercial vs. noncommercial use.

NonCommercial (“NC”) As we know, three of the licenses (BY-NC, BY-NC-SA, and BY-NC-ND) limit reuse of the work to noncommercial purposes only. In the legal code, a noncommercial purpose is defined as one that is “not primarily intended for or directed towards commercial advantage or monetary compensation.” This is intended to provide flexibility depending on the facts surrounding the reuse, without over specifying exact situations that could exclude some prohibited and some permitted reuses.

It’s important to note that CC’s definition of NC depends on the use, not the user. If you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term. For example, a nonprofit entity cannot sell another’s NC licensed work for a profit, and a for-profit may use an NC licensed work for non commercial purposes. Whether a use is commercial depends on the specifics of the situation. See the Creative Commons NonCommercial Interpretation page here for more information and examples.

Adaptations

The other differences between the licenses hinge on whether, and on what terms, reusers can adapt and then share the licensed work. The question of what constitutes an adaptation of a licensed work depends on applicable copyright law (for a reminder, see Unit 2). One of the exclusive rights granted to creators under copyright is the right to create adaptations of their works or, as they are called in some places, derivative works. (For example, creating a movie based on a book, or translating a book from one language to another.)

As a legal matter, at times it is tricky to determine exactly what is and is not an adaptation. Here are some handy rules about the licenses to keep in mind:

• Technical format-shifting (for example, converting a licensed work from a digital format to a physical copy) is not an adaptation regardless of what applicable copyright law may otherwise provide.
• Fixing minor problems with spelling or punctuation is not an adaptation.
• Syncing a musical work with a moving image is an adaptation regardless of what applicable copyright law may otherwise provide.
• Including an image in connection with text, as in a blog post, a powerpoint, or an article, does not create an adaptation unless the photo itself is adapted.

ShareAlike

Two of the licenses (BY-SA and BY-NC-SA) require that if adaptations of the licensed work are shared, they must be made available under the same or a compatible license. For ShareAlike purposes, the list of compatible licenses is short. It includes later versions of the same license (e.g., BY-SA 4.0 is compatible with BY-SA 3.0) and a few non-CC licenses designated as compatible by Creative Commons (e.g., the Free Art License). You can read more about this here, but the most important thing to remember is that ShareAlike requires that if you share your adaptation, you must do so using the same or a compatible license.

The four license elements—BY, SA, NC, and ND—combine to make up six different license options.

All of the licenses include the BY condition. In other words, all of the licenses require that the creator be attributed in connection with their work. Beyond that commonality, the licenses vary whether (1) commercial use of the work is permitted; and (2) whether the work can be adapted, and if so, on what terms.

The six licenses, from least to most restrictive in terms of the freedoms granted reusers, are:

The Attribution license or “CC BY” allows people to use the work for any purpose (even commercially and even in modified form) as long as they give attribution to the creator.

The Attribution-ShareAlike license or “BY-SA” allows people to use the work for any purpose (even commercially and even in modified form), as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license. This is CC’s version of a copyleft license, and is the license required for content uploaded to Wikipedia, for example.

The Attribution-NonCommercial license or “BY-NC” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator.

The Attribution-NonCommercial-ShareAlike license or “BY-NC-SA” allows people to use the work for noncommercial purposes only, and only as long as they give attribution to the creator and make any adaptations they share with others available under the same or a compatible license.

The Attribution-NoDerivatives license or “BY-ND” allows people to use the unadapted work for any purpose (even commercially), as long as they give attribution to the creator.

The Attribution-NonCommercial-NoDerivatives license or “BY-NC-ND” is the most restrictive license offered by CC. It allows people to use the unadapted work for noncommercial purposes only, and only as long as they give attribution to the licensor.

If you need some help deciding which license might be best for you, this flowchart from CC Australia might be useful (please note the information it contains is not legal advice): http://creativecommons.org.au/learn/fact-sheets/licensing-flowchart/

CC License Layers

The licenses were designed to be a free, voluntary solution for creators who want to grant the public up-front permissions to use their works. Although they are legally enforceable tools, they were designed in a way that was intended to make them accessible to non-lawyers.

The licenses are built using a three layer design.

1. The legal code is the base layer. This contains the “lawyer-readable” terms and conditions that are legally enforceable in court. Take a minute and scan through the legal code of CC BY to see how it is structured. Can you find where the attribution requirements are listed?
2. The commons deeds are the most well-known layer of the licenses. These are the web pages that lay out the key license terms in so-called “human-readable” terms. The deeds are not legally enforceable but instead summarize the legal code. Take some time to explore the deeds for CC BY and CC BY-NC-ND and identify how they differ. Can you find the links to the legal code from each deed?
3. In order to make it easy for websites and web services to know when a work is available under a Creative Commons license, there is a “machine readable” version of the license—a summary of the key freedoms granted and obligations imposed written into a format that applications, search engines, and other kinds of technology can understand.  When this metadata is attached to CC licensed works, someone searching for a CC licensed work using a search engine (e.g., Google advanced search) can more easily discover CC licensed works.

What types of content can be CC-licensed?

You can apply a CC license to anything protected by copyright, with one important exception.

The Creative Commons organization urges creators not to apply CC licenses to software. This is because there are many free and open source software licenses that do that job better; they were built specifically as software licenses. For example, most open source software licenses include provisions about distributing the software’s source code—the CC licenses do not address that important aspect of sharing software. The software sharing ecosystem is well-established, and there are many good open source software licenses to choose from. This FAQ from CC’s website has more information about why these licenses are discouraged for software.

Whose rights are covered by the CC license?

A CC license on a given work only covers the copyright held by the person who applied the license—the licensor. That might sound obvious, but it is an important point to understand. For example, many employers own the copyright to works created by employees, so an employee may not apply a CC license to a work they created if the copyright is owned by their employer.

Additionally, a work may incorporate the copyrighted work of another, such as a scholarly article that uses a copyrighted photograph to illustrate an idea (after having received the permission of the owner of the photograph to include it). The CC license applied by the author of the scholarly article does not apply to the photograph, only the remainder of the work. Separate permission may need to be obtained in order to reproduce the photograph (not the remainder of the article).

Also, works often have more than one copyright attached to them. For example, a filmmaker may own the copyright to a film adaptation of a book, but the book author also holds a copyright to the book on which the film is based. In this example, if the film is CC-licensed, the CC license only applies to the film and not the book.

License Considerations

The act of applying a CC license is easy, but there are some important considerations to think through before you do.

The licenses are irrevocable. Irrevocable means a legal agreement that cannot be canceled. That means once you apply a CC license to a work, the CC license applies to the work until the copyright on the work expires. This aspect of CC licensing is highly desirable from the perspective of reusers because they have confidence knowing the creator can’t arbitrarily pull back the rights granted them under the CC license.  Because the licenses are irrevocable, it is very important to carefully consider the options before deciding to use a CC license on a work.

You must own or control copyright in the work. You should control copyright in the work to which you apply the license. For example, you don’t own or control any copyright in a work that is in the public domain.  Further, if you created the material in the scope of your employment, you may not be the holder of the rights and may need to get permission from your employer before applying a CC license. Before licensing, be mindful about whether you have copyright to the work to which you’re applying a CC license.