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University of Michigan Law School University of Michigan Law School Scholarship Repository

Law Librarian Scholarship Other Publication Series

2018

Creative : An Explainer

Kincaid C. Brown University of Michigan Law School, [email protected]

Available at: https://repository.law.umich.edu/librarian/26

Follow this and additional works at: https://repository.law.umich.edu/librarian

Part of the Contracts Commons, Intellectual Law Commons, Internet Law Commons, and the Scholarly Publishing Commons

Recommended Citation Brown, Kincaid C. ": An Explainer." Computer & Internet Law. 35, no. 12 (2018): 1-3.

This Article is brought to you for free and open access by the Other Publication Series at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Law Librarian Scholarship by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. December

2018

35

12

Volume 35 ▲ Number 12 ▲ DECEMBER 2018 Ronald L. Johnston, Arnold & Porter, LLP, Editor-in-Chief

Creative Commons: An Explainer

By Kincaid C. Brown

opyright protection attaches automatically to the are designed to be used for any copyrightable material, Coriginal work that you create, whether it is a poem, with the exception of computer software, and can be photograph, painting, song, video, or . used to a database’s content and structure, to the limits what others can do with your creative work and extent they can be copyrighted. Creative Commons protects your original work from, for example, being has also created two tools. The first, compiled or reused and sold for profit. If you are the CC0,3 allows copyright owners to opt out of copy- copyright holder (and not, e.g., creating the original right protection, essentially akin to letting a work go work in an employment context where it may be sub- into the public domain, so that others can build on or ject to being a “work for hire”), you may want to allow adapt the original. The second is the Public Domain users the ability to use your work for particular pur- Mark4 that can be used to identify works that are no poses.1 You could individually negotiate a license grant- longer protected by copyright as Creative Commons ing rights to each person, which would undoubtedly cannot be attached to works that are already in take more and more time as licensing requests mount, the public domain. or you could use a Creative Commons2 license to man- The four conditions that the Creative Commons age your in a more blanket manner. licenses utilize are: Attribution (abbreviated as “BY”), ShareAlike (“SA”), NonCommercial (“NC”), and Creative Commons and Its Licenses NoDerivatives (“ND”). For a user of a BY licensed Creative Commons is a nonprofit organization that work, attribution requires the user to give credit to the has created a suite of six licenses, using four condi- creator. ShareAlike requires that the user of a SA licensed tions, to allow for broader use of copyrighted material work distribute their new work under the same terms. on the Internet in furtherance of the creation of new NonCommercial requires a subsequent work utilizing a works and learning. The Creative Commons licenses NC protected work to not be for commercial purposes, such as for compensation. NoDerivatives means that modifications cannot be made to a ND protected work. Kincaid C. Brown is the assistant director of the University of In all cases, a user would have to get permission from Michigan Law Library where he teaches Advanced Legal Research. the copyright owner to disregard any of the conditions.5 He is a member of the SBM Michigan Bar Journal Committee and The six Creative Commons licenses6 are: a former member of the Committee on Libraries, Legal Research, and Legal Publications. This article was originally published in the • Attribution (CC BY), which allows licensees to reuse September 2018 edition of Michigan Bar Journal; reprinted with permission. a work as long as they credit the originator;

Volume 35 • Number 12 • December 2018 The Computer & Internet Lawyer • 1 Copyright

• Attribution ShareAlike (CC BY-SA), permitting users Creative Commons licenses can be used as a model to reuse a work as long as they credit the originator license, but once a is revised and then license their work under the CC BY-SA the licensor can no longer indicate that it is a Creative license; Commons license or use a Creative Commons but- ton or mark.11 Creative Commons licenses naturally • Attribution-NoDerivs (CC BY-ND), allowing users to expire with the copyright for a work since the work redistribute a work as long as it is unchanged and then would be part of the public domain.12 However, they credit the originator; for some works there may be multiple copyrightable parts so the rights may expire at different times.13 For • Attribution-NonCommercial (CC BY-NC), permitting example, a movie may also have that has a differ- users to reuse a work as long as they credit the copy- ent from the visual images so that the right holder and the new work is not created for music may still be in copyright and protected by the commercial purposes; Creative Commons license after copyright expires for the visual portion. • Attribution-NonCommercial-ShareAlike (CC BY-NC-SA), If a user of material protected by a Creative Commons allowing uses in line with the CC BY-NC licenses as license wants to use the content in a way that does not long as the new work is also licensed under the CC adhere to the license, such as adding digital rights man- BY-NC-SA license; agement to ShareAlike-licensed content, they must first receive express permission from the licensor.14 • Attribution-NonCommercial-NoDerivs (CC BY-NC-ND), User rights terminate when they violate the Creative permitting non-commercial uses as long as they do Commons license although with version 4.0 licenses, a not adapt the original work and credit the copyright user can automatically reinstate their rights if they cor- holder. rect the violation, e.g., not attributing a use to the original copyright holder, within 30 days of discovering the vio- About the Licenses lation.15 For violations of version 3.0 and earlier licensed works or where the violation is not corrected within 30 Each of the six Creative Commons licenses, as well days, the licensor has to expressly grant permission for as the CC0 “no rights reserved” option, has three the use; i.e., a user cannot just download a new copy as “layers:” The actual legal code of the license itself; a a fresh restart.16 Creative Commons licenses cannot be license deed, which is a summary for non-lawyers; revoked retroactively.17 This means that once a user has and, machine-readable metadata.7 The metadata can be downloaded a work she can continue to use that work embedded in the work itself or is embedded in the under the original license terms even though a user who code for the “buttons” (standardized icons created by downloads the item after the licensor ceased distributing Creative Commons summarizing the license terms for under the Creative Commons license cannot.18 the work) that Creative Commons recommends licen- sors display with their work.8 The most recent version Using a Creative Commons License of the licenses is version 4.0 and these were drafted A copyright holder who wants to apply a Creative to be enforceable internationally without the need for Commons license to his work can do so at any time. To revision to adhere to specific provisions of any country’s do so, a licensor would normally take two steps to release copyright law. The previous iterations of the licenses a work under a Creative Commons license, although (3.0 and prior), did have versions that corresponded performing only the second step would also be enough to the law in particular countries. The improved inter- to adhere a Creative Commons license.19 The first is to national enforceability of the 4.0 licenses furthers embed the license information in the metadata for the Creative Commons’ aim to allow copyright holders to work; many file formats, such as .jpg, .mp4, and .pdf, easily share their works globally, almost always via the allow for embedded metadata. The second action is to Internet, using standardized terms. Creative Commons display the license terms along with the work. Using the licenses have been enforced by courts in a number of appropriate Creative Commons button/icon is recom- jurisdictions including the United States, Germany, and mended, but a text statement is also acceptable. In either Israel.9 Creative Commons licenses do not apply to case, the button or text should link back to the Creative although there is a possibility for confusion Commons license deed. There is no requirement for a by users; Creative Commons recommends that licen- work to be registered with Creative Commons for a sors disclaim the application of the license to trade- Creative Commons license to apply. marks with the work.10

2 • The Computer & Internet Lawyer Volume 35 • Number 12 • December 2018 Copyright

Notes mark-on-it-without-also-licensing-or-affecting-rights-in-the-trade- 1. US Copyright Office, Frequently Asked Questions About mark/. Copyright, see https://www.copyright.gov/help/faq/index.html. 11. Creative Commons, Policies, see https://creativecommons.org/ All Web sites cited in this article were accessed September 18, policies. 2018. 12. Creative Commons, FAQ: When do Creative Commons licenses 2. Creative Commons, see https://creativecommons.org/. expire? See https://creativecommons.org/faq/#when-do-creative- 3. Creative Commons, CC0, see https://creativecommons.org/ commons-licenses-expire. share-your-work/public-domain/cc0/. 13. Id. 4. Creative Commons, 1.0, see https://creative- 14. Creative Commons, FAQ: What happens if I want to use the commons.org/publicdomain/mark/1.0/. material in a way that is not permitted by the license? See 5. Creative Commons, Licensing Types, see https://creativecommons. https://creativecommons.org/faq/#what-happens-if-i-want-to-use- org/share-your-work/licensing-types-examples/. the-material-in-a-way-that-is-not-permitted-by-the-license. 6. Creative Commons, Licenses and Examples, see https://cre- 15. Creative Commons, FAQ: How can I lose my rights under a ativecommons.org/share-your-work/licensing-types-examples/ Creative Commons license? If that happens, how do I get them licensing-examples/. back? See https://creativecommons.org/faq/#how-can-i-lose-my-rights- 7. Creative Commons, Licensing Considerations, see https://cre- under-a-creative-commons-license-if-that-happens-how-do-i-get-them-back. ativecommons.org/share-your-work/licensing-considerations/. 16. Id. 8. Available at Creative Commons, Downloads, see https://creative- 17. Creative Commons, FAQ: What happens if the author decides commons.org/about/downloads. to revoke the CC license to material I am using? See https:// 9. Creative Commons, Case Law, see https://wiki.creativecommons. creativecommons.org/faq/#what-happens-if-the-author-decides-to-re- org/wiki/Case_Law. voke-the-cc-license-to-material-i-am-using. 18. Id. 10. Creative Commons, FAQ: Can I offer material under a CC license that has my on it without also licensing or 19. Creative Commons, FAQ: How do I apply a Creative affecting rights in the trademark? See https://creativecommons. Commons license to my material? See https://creativecommons. org/faq/#can-i-offer-material-under-a-cc-license-that-has-my-trade- org/faq/#how-do-i-apply-a-creative-commons-license-to-my-material.

Copyright © 2018 CCH Incorporated. . Reprinted from The Computer & Internet Lawyer, December 2018, Volume 35, Number 12, pages 1–3, with permission from Wolters Kluwer, New York, NY, 1-800-638-8437, www.WoltersKluwerLR.com