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 by the founders of Creative Commons. 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

Do you understand why having CC licenses track copyright was an important decision for the founders of CC? 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.

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 freely 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, because reading and watching aren’t activities that copyright generally regulates.

Here are two more important scenarios in which copyright does not apply:

• When fair use, fair dealing, or some other limitation and exception to copyright applies; see relevant FAQ here.
• When the work is in the public domain; see relevant FAQ here.^[1]

➡ Because copyright does not apply in those scenarios, CC licenses don’t either.

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 Creative Commons licenses in a field like 3D printing. Glance through this resource about how to apply a CC license in the 3D printing field, written by Shapeways General Counsel, Michael Weinberg. 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 here.

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, 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 an employee applies a CC license to a work owned by her employer, she is not able to give any permission whatsoever to reuse the work.

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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