4.2 Things to Consider after CC Licensing

Applying a CC license alone is not enough to ensure your work is freely available for easy reuse and remix.

Learning Outcomes

• Explain why CC discourages changing the license terms
• Explain how a paywall affects CC-licensed content
• Describe why the technical format of content is significant
• Describe what happens when someone changes their mind about CC licensing

Big Question / Why It Matters

One of the most important aspects of Creative Commons licenses is that they are standardized. This makes it much easier for the public to understand how the licenses work and what reusers have to do to meet their obligations.

But CC licenses do not apply to works in a vacuum. CC licensed works usually live on websites that have their own terms of service. Sometimes, they are not in formats that make it easy to reuse or adapt them. And the works are often available in hard copy form for a price.

Personal Reflection / Why It Matters to You

Have you ever found a CC-licensed work that you weren’t easily able to copy and share? What made it hard to reuse as intended? Was it an issue of format, or were there access restrictions on the work, or something else?

Acquiring Essential Knowledge

Creative Commons licenses are standardized licenses, which means the terms and conditions are the same for all works subject to the same type of CC license. This is an essential feature of their design, enabling the public to remix CC licensed works. It also makes the licenses easy to understand.

But people and institutions who use the licenses have diverse needs and wants. Sometimes creators want slightly different terms rather than the standard terms CC licenses offer.

We strongly discourage people from customizing open copyright licenses because this creates confusion, requires users to take the time to learn about how the custom license differs, and eliminates the benefits of standardization. If you change any of the terms and conditions of a CC license, you cannot call it a Creative Commons license or otherwise use the CC trademarks. This rule also applies if you try to add restrictions on what people can do with CC licensed work through your separate agreements, such as website terms of service. For example, your website’s terms of service can’t tell people they can’t copy a CC licensed work (if they are complying with the license terms). You can, however, make your CC licensed work available on more permissive terms and still call it a CC license. For example, you may waive your right to receive attribution.

Creative Commons has a detailed legal policy outlining these rules, but the best way to apply them is to ask yourself: is what you want to do going to make it easier or harder for people to use your CC licensed work? If the latter, then generally it’s a restriction and you can’t do it unless you remove the Creative Commons name from the work.

Note that all of the above applies to creators of CC licensed work. You can never change the legal terms that apply to someone else’s CC licensed work.

Charging for a CC licensed work

The first part of this lesson dealt with the requirements connected to changing the legal terms on a CC licensed work, whether by actually changing the license terms or using separate contracts to try to do so.

But what if you simply want to sell a CC licensed work?

If you are the creator, then selling your work is always okay. In fact, selling physical copies (e.g., a textbook) and providing the digital copies for free is a very common method for making money while using CC licenses.

Here is a prominent example from CC’s Team Open feature: Max Temkin, founder of Cards Against Humanity:

Charging for access to digital copies of a CC licensed work is more difficult. It is permissible, but once someone pays for a copy of your work, she can legally distribute it to others for free under the terms of the applicable CC license.

If you are charging for access to someone else’s CC licensed work—whether a physical copy or digital version—you have to pay attention to the particular CC license applied to the work. If the CC license includes the NonCommercial (NC) restriction, then you cannot charge the public to access the work.

Making your work accessible

Formats: Simply applying a CC license to a creative work does not necessarily make it easy for others to reuse and remix it. Think about what technical format you are using for your content (e.g., PDF? MP3?). Can people download your work? Can they easily edit or remix it if the license allows? In addition to the final polished version, many creators distribute editable source files of their content to make it easier for those who want to use the work for their own purposes. For example, in addition to the physical book or ebook, you might want to distribute files of a CC licensed book that enable people to easily cut and paste the content into their own works.

DRM: Using a distribution platform that applies digital rights management (DRM) (such as copy protection technology) to your work is another way you can inadvertently make it very hard for reusers to make use of the permissions in the CC license. If you have to upload your CC licensed works to a platform that uses DRM, consider also distributing the same content on sites that do not use DRM.

Note that the CC licenses prohibit you from applying DRM to someone else’s CC licensed work without their permission.

What if you change your mind about the CC license?

Inevitably, there are creators who apply a CC license to a work and then later decide they want to offer it on different terms. Even though the original license cannot be revoked, the creator is free to also offer the work under a different license. Similarly, the creator is free to remove the copy of the work they placed online.

In those cases, anyone who finds the work under the original license is legally permitted to use it under those terms until the copyright expires. As a practical matter, reusers may want to comply with the creator’s new wishes as a matter of respect.

What if someone does something with my CC licensed work I don’t like?

As long as users abide by license terms and conditions, authors / licensors cannot control how their material is used. That said, all CC licenses provide several mechanisms that allow licensors to choose not to be associated with their material, or to uses of their material with which they disagree.

• First, all CC licenses prohibit using the attribution requirement to suggest that the licensor endorses or supports a particular use.
• Second, licensors may waive the attribution requirement, choosing not to be identified as the licensor, if they wish.
• Third, if the licensor does not like how the material has been modified or used, CC licenses require that the licensee remove the attribution information upon request. (In 3.0 and earlier, this is only a requirement for adaptations and collections; in 4.0, this also applies to the unmodified work.)
• Finally, anyone modifying licensed material must indicate that the original has been modified. This ensures that changes made to the original material–whether or not the licensor approves of them–are not attributed back to the licensor.
• Further, it is important to remember:
  • The Commons is full of good people who want to do the right thing, so we don’t often see much “abuse” of openly licensed works. Using CC licenses gives good, responsible people the freedom to use and build on your work.
  • Copyright and/or open copyright licenses doesn’t keep “bad” people from doing “bad” things with your work if they don’t care about copyright.

Legal Cases: Open Education

In the 16 years since our licenses were first published, the number of lawsuits turning on the interpretation of a CC license has been extremely low, especially considering that more than 1.4 billion CC-licensed works are available on the Internet. CC licenses in court have fared incredibly well in court and disputes are rare when compared to the number of lawsuits between parties to privately negotiated, custom licenses.^[1]

In 2017-2018 there were three legal cases: Great Minds vs. FedEx Office, Great Minds vs. Office Depot, and  Philpot v Media Research Center. The outcomes of the court decisions for these three cases favored the enforceability of CC licenses and their role enabling sharing of content with the public.

Great Minds vs. FedEx Office, Great Minds vs. Office Depot^[2]

Two of the three cases were raised by Great Minds, a curriculum developer. In these two cases, Great Minds received public funding from New York State to develop OER for school districts, which the organization licensed under CC BY-NC-SA 4.0. Great Minds brought the court cases against commercial copy shops that were hired by school districts to reproduce NC-licensed open educational resources (OER). The OER was for school use, qualified as non commercial purposes.

Great Minds makes a common assertion in both cases: school districts are not allowed to outsource the reproduction of educational materials licensed under CC BY-NC-SA 4.0 to contractors (the contractors are the commercial print shops in these cases) who make a profit on those reproductions. Great Minds’ theory was that it was lawful for a school district employee to go to a copy shop and pay to use their copiers; however, if the same school employee pays the copy shop to hit “PRINT” instead, the copy shop is no longer working on behalf of, or under the direction of the school district– but instead acting independently;  thereby the copy shop has to directly rely on its own NC license to make and charge a fee for the very same copies.

Because they applied a non commercial license, Great Minds claimed that the school districts working with the OER were not allowed to engage FedEx or Office Depot to reproduce the materials, and that because the copy shops made a profit, they violated the license. Importantly, Great Minds never alleged that the school districts’ use of the reproduced materials violated the non commercial restriction of the license.

The central question in both cases is whether a licensee (a school district that is properly using the work for non commercial purposes) may outsource the reproduction of the works to another entity who makes a profit on those reproductions, without the entity it pays becoming a copyright infringer under the NC license.

In both cases, the district courts agreed with the copy shop and found no copyright infringement or violation of the CC license. For additional details on the court cases, see the additional resources section.

Philpot v Media Research Center Inc.^[3]

The third case, Philpot v Media Research Center, involved Larry Philpot, who voluntarily shared  two photographs on Wikimedia under a Creative Commons license. Philpot complained that Media Research Center (MRC) infringed his copyrights when it published his photographs in articles without attribution.

Following discovery (the phase of litigation during which factual evidence is gathered), MRC filed a motion for summary judgment asking the court to find that it did not infringe Philpot’s copyrights because it used the photos for purposes of news and commentary and those uses constitute fair use under U.S. copyright law.

In its decision granting the motion for summary judgment, the U.S. District Court for the Eastern District of Virginia rejected Philpot’s argument that a “meeting of the minds” had to occur before the CC license used by Philpot applied.

The district court ultimately found that MRC’s uses of the two photographs constituted fair use under U.S. copyright law, and as a result MRC did not violate Philpot’s copyrights. The court concluded that because fair use applied, MRC did not infringe Philpot’s copyrights, and therefore attribution under the CC license was not required. Compliance with the license was not violated because copyright license does not apply where fair use applies.

Fair use eliminates the need to rely on or comply with the CC license. This is the core design of all CC licenses – CC licenses grant permission when permission is required under copyright law. They communicate the licensor’s intention to grant permission where permission is needed. And, CC licenses are designed to be effective and enforceable without necessarily meeting the requirements of a contract. The law of contracts or obligations varies around the world, and there are some legal systems that may treat CC licenses as enforceable under the law of obligations. This court correctly determined that under U.S. law the licenses effectively grant permission without needing to meet the formal requirements of a contract because the intention to grant permission is all that is needed.

Final remarks

Sharing your content using Creative Commons licenses is generous, but that alone isn’t enough to make it easy for others to reuse and remix your work. Spend some time thinking from the perspective of someone who finds your shared content. How easy is it for them to download, reuse, and/or revise it? Are there legal or technical obstacles that make it difficult for them to do the things the CC license is designed to allow?

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