3.2 License Scope

3.2 License Scope

Creative Commons licenses are built on copyright law. That simple fact tells you most of what you need to know about when they do and do not apply, and how long they last.

Learning Outcomes

• Understand how CC works with copyright and why this is important
• Explain time length of license

Big Question / Why It Matters

What is the legal foundation upon which Creative Commons licenses operate? Why is it so important?

Creative Commons licenses are copyright licenses. They apply where and when copyright applies. This reflects a fundamental design decision. Given that the goal was to make more creative and educational works available under common-sense terms, CC wanted to ensure its licenses were not used to restrict works or uses of works that copyright does not restrict. This is a core CC value. Having the language of the licenses track copyright law accomplished this goal.

Personal Reflection / Why It Matters to You

Think about what it would mean if a CC license could prevent you from doing something you could otherwise do with a copyrighted work, such as printing a copy of a poem to insert in a birthday card for a friend. Do you understand why having CC licenses track copyright is an important aspect of CC licenses?

Acquiring Essential Knowledge

The statement that “Creative Commons licenses are copyright licenses” tells you the following about the licenses:

1. the licenses “operate” or apply only when the work is within the scope of copyright law (or other related law) and the restrictions of copyright law apply to the intended use of the work (this is discussed in more detail below),
2. certain other rights, such as patents, trademarks, privacy and publicity rights, are not covered by the licenses and must be managed separately.

The first explains a basic limitation of the licenses in controlling what people do with the work, and the second provides a warning that there may be other rights at play with the work that restrict how it is used.

Let’s start by unpacking what it means for the license to apply where copyright applies.

Creative Commons licenses are appropriate for creators who want to provide people with one or more of the permissions governed by copyright law. For example, if you want to give others permissions to freely copy and redistribute your work, you can use a Creative Commons license to grant them that permission. Likewise, if you want to give others permission to transform, alter, or otherwise create derivative works based on your work, you can use a Creative Commons license to grant them that permission. However, you don’t need to use a Creative Commons license to give someone permission to read your article or watch your video.

Here are two more important scenarios in which a user does not need a copyright license and does not need to follow the terms of the CC license:

1. When you are using a work under fair use, fair dealing, or some other applicable limitation and exception to copyright. By design, CC licenses do not reduce, limit, or restrict any rights under exceptions and limitations to copyright, such as fair use, fair dealing, or provisions for people with disabilities as the ones contemplated in the Marrakesh Treaty. If your use of CC-licensed material would otherwise be allowed because of an applicable exception or limitation, you do not need to rely on the CC license or comply with its terms and conditions. This is a fundamental principle of CC licensing. See relevant FAQ page.
2. When the work is in the public domain. CC licenses should not be applied to works in the worldwide public domain.^[1] All CC licenses are clear that they do not have the effect of placing restrictions on material that would otherwise be unrestricted, and you cannot remove a work from the public domain by applying a CC license to it. If you want to dedicate your own work to the public domain before the expiration of applicable copyright or similar rights, use CC’s legally robust public domain dedication. If a work is already in the worldwide public domain, you should mark it with CC’s Public Domain Mark. See more information on the relevant FAQ page.

Can you think of reasons why someone might try to apply a CC license to a work not covered by copyright in their own country? Or reasons why a CC licensor might expect attribution every time their work is used, even for a use that is not prohibited by copyright law?

They might be trying to exert control they do not actually have by law. But more likely than not, they simply do not know that copyright does not apply or that a work is in the public domain. Or, for the savvy licensor, they may realize their work is in the public domain in some countries but not public domain everywhere, and they want to be sure everyone everywhere is able to reuse it.

For a real-life example, let’s look at what happens when you want to use CC licenses in a field like 3D printing. Look through this Public Knowledge resource about when to apply a CC license in the 3D printing field. It is easy to see how complicated the legal issues can become, particularly in newly emerging fields like this one.

One other subtle but important difference about the scope of CC licenses is that they also cover other rights closely related to copyright. Defined as “Similar Rights” in the CC license legal code, these include related and neighboring rights and sui generis database rights, which are rights in some countries restricting the extraction and reuse of the contents of a database. See Section 2.1 for a refresher on what Similar Rights covers. Just as with copyright, the CC license conditions only come into play when Similar Rights otherwise apply to the work and to the particular reuse made by someone using the CC licensed work.

The other critical part of the statement “CC licenses are copyright licenses” is that there may be other rights in the works upon which the license has no effect — for example, privacy rights. Again, CC licenses do not have any effect on rights beyond copyright and Similar Rights as defined in the licenses, so other rights have to be managed separately. Read the FAQ about this issue.

While not required, Creative Commons urges creators to make sure there are no other rights that may prevent reuse of the work as intended. CC licensors do not make any warranties about reuse of the work. That means that unless the licensor is offering a separate warranty, it is incumbent on the reuser to determine whether other rights may impact their intended reuse of the work. Learning more can sometimes be as easy as contacting the licensor to inquire about these possible other rights. Read through this complete list of considerations for reusers of CC-licensed works.

What types of content can be CC-licensed?

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

CC 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 we discourage our licenses 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 if employees apply CC licenses to works owned by their employers, they are not able to give any permission whatsoever to reuse the work. The person who applies the license needs to be the creator or someone who has acquired the rights.

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). See Section 4.1 for more details on how to handle these situations.

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.

Final remarks

A key to understanding how Creative Commons works is understanding that the licenses depend on copyright to function. This seemingly simple concept explains a lot about when the tools apply and how much of a work they cover.

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