More on CC0
Published by elliott bledsoe on Thursday, 17 January 2008 at 11:15 AM
CC0 is being pitched to promote and protect the public domain through two different methods. Either through the assertion that content is in the public domain or though the waiving of rights in the content to essentially place it in the public domain. Both these things were part of the now obsolete CC Public Domain Dedication. Before I look at how it is different from the CC PD Dedication, some context:
Where is this coming from?
This whole CC0 thing is coming out of the Science Commons Protocol for Implementing Open Access Data which preferences the waiving of rights rather than the licensing of "some rights" which CC's standard suite is founded on. Mission drift? Maybe. But Science Commons is separate to CC. Science Commons rationale is that a licensing process becomes complicated and unwieldy for managers of databases. Things such as:
- attribution stacking;
- the ability to not tell what content is copyrighted and what is not ("user tends to assume that all is under copyright or none is under copyright"); and
- the "licensing" of facts (which are of course not copyrightable: Feist v Rural Telecommunications 506 US 984, but the compilation of which might be).
This "lack of simplicity restricts usage and as such restricts the open access flow of data," thus undermining the entire mission of Science Commons. The Protocol proposes a twofold resolution:
- a reconstruction of the public domain; and
- the use of scientific norms to express the wishes of the data provider.
Section 4 of the Dedication focuses on the legal tools to create this environment. It proposes a waiver of all rights (including database rights, statutory rights and intellectual property rights) to reduce legalities and create interoperability.
More than Science Commons
CC0 takes this idea that Science Commons has depicted and greatly expands its scope. Rather than being limited to data/databases, CC0 allows for the waiving of rights or the assertion that no rights exist in any copyrighted material. The licensing process declares:
"CC0 enables you to indicate that a work is free of copyright and any related or neighboring rights such as moral rights, publicity or privacy rights, rights protecting against unfair competition and any rights protecting the extraction, dissemination and reuse of data."
That's a fairly broad extension of the ideas laid out by Science Commons.
How does it work?
Like the standard CC licences and the CC Sampling licences, CC0 begins with a online tool (see screenshot).
Currently the tool for CC0 is being housed in the CC Labs section.
The user chooses to waiver rights in the content to be placed under CC0, or they assert that no rights exist in the content. These are two different options with very different legal effects.
CC0 Waiver
CC0 Waiver requires the owner of the work which will have all rights waived to state their name, their website, the title of the work and the URL of the work. They also click a check box which states:
"I hereby waive all rights to this work. To the extent possible under law, I waive all copyright, moral rights, database rights, and any other rights that might be asserted over the work."
(I have some issues with this wording, but I will address those in 'Waiving rights' below.)
Once you have filled in the details and pressed 'Continue' you are asked to confirm that you are willing to waiver the rights in that work. If you press 'No, I don't waive' the process is aborted. If you press 'Yes, I do waive' you are taken to a page where you can elect a notification badge and you are provided with the metadata for your declaration. CC0 has both the large notification button and the thin notification badge:
The standard written notice in the metadata reads:
"To the extent possible under law, [NAME] has waived all copyright, moral rights, database rights, and any other rights that might be asserted over [TITLE OF WORK]
Where:
- [NAME] is that of the person asserting that no rights attach to the work;
- [NAME] links to their website provided;
- [TITLE OF WORK] is the title of the work about which the assertion is being made; and
- [TITLE OF WORK] links to the work's URL;
CC0 Assert
The process to assert that no rights are attached to a work is similar. Again you state your name, your website, the title of the work that (allegedly) has no rights attached and the URL of the work. Additionally, you have to identify the grounds on which you assert that right. Under the US system, your options are:
- The work was created by the US government;
- The work was created in the US before 1923; and
- Other.
The first two make sense. Works by the Federal government in America does not attract domestic copyright. The second is because all works published before 1923 are in the public domain (§303, US Copyright Act).
The third category produces a text field which (presumably) you type your reason for believing the work is in the public domain (although it does not explain this very clearly). This might, for example, be because it is more than 70 years from the end of the calendar year in which the creator of the work passed away.
Once you have filled these details in and clicked 'Continue' you are asked to confirm your assertion. If you click 'No, I do not assert' the transaction is cancelled. If you click 'I so assert' you are taken to a page where you can elect a notification badge and you are provided with the metadata for your assertion. Again, CC0 provides both the large and thin style of CC notification badges (see above).
The standard written notice in the metadata reads:
"[NAME] asserts that [TITLE OF WORK] is free of any copyrights; [REASON]."Where:
- [NAME] is that of the person asserting that no rights attach to the work;
- [NAME] links to their website provided;
- [TITLE OF WORK] is the title of the work about which the assertion is being made;
- [TITLE OF WORK] links to the work's URL;
- 'free of any copyrights' links to the Commons Deed of the CC0 Assertion; and
- [REASON] reflects either of the three options outlined above.
Where the option chosen from the three was 'Other' the metadata quotes the reason for the assertion from the text field.
The notification badge links to the CC0 Assertion Commons Deed which has a link to the full assertion (Legal Code).
The notification badge links to the CC0 Assertion Commons Deed which has a link to the full assertion (Legal Code).
The key difference between the two is that CC0 Waiver is designed for works that are still in copyright whereas CCo Assert is a mechanism through which any individual with sufficient grounds to believe that a work is in the public domain may assert to others (ie the world using the CC0 Assert tool) that the work is such and therefore has no rights attached to it.
At current CC0 is available for the United States only and BETA Commons Deeds for both CC0 Waiver (US) and CC0 Assert (US) exist. The idea is that the model will be ported into other CC jurisdictions (see 'Making it global' below).
Waiving rights
I have some questions about CC0 Waiver.
This approach may work in America, but what about other countries? I don't want to talk too much here about this because I want to address it in a separate post, but for example, in the Australian legal system, you can't waiver moral rights. You can consent to specific instances of infringement of your moral rights, but you cannot waiver them. s195AW(1) of the Copyright Act 1968 states that it is not an infringement of moral rights if the infringement is within the scope of written consent given by the author. But more on issues and implementation in Australia in 'Making it global' below.
Jordan Hatcher (writing on Opencontentlawyer.com) also argues that the wording in the check box declaration could be too broad. He is concerned with other IP laws. I agree, but what I am really concerned about is the existence of third party rights in the work to be waived.
What about instances where the copyright (and some related rights) is yours, but additional rights, such as rights to personality, are not? This of course what the case in the Virgin Mobile case. You can't waiver anyone else's competing interests in a work. Perhaps the check box declaration should state that the owner waives the rights that they hold over the work? But again, this comes back to the kinds of uncertainty problems that were common in the discussion around the Virgin Mobile case and around use of the CC PD Declaration.
Asserting no rights exist
I also have some questions about CC0 Assertion?
What happens where the work is knowingly falsely asserted to be "no rights reserved"? And what if someone uses that work on the mistaken belief that they did not need permission to do so?
Making it global
CC made it clear from the release yesterday that CC0 is designed to be global. But already there are issues. As Hatcher notes in his dissection of CC0, the CC0 wording is based on American law. There is no Unported versions of each because, unlike was the case for the development of the Unported standard CC licensing suite, international treaties do not concern themselves with waiving rights. The idea is that the international CC offices will take the US version as a model and port it into their own law.
In a new post I will discuss what this might mean for Australia.
You'll pass this on, won't you:
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2 thoughts:
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Great post and thanks for the reference!
Some thoughts. You mention that:
"The idea is that the international CC offices will take the US version as a model and port it into their own law."
I'm guessing that the model will be this version (CZ Zero US) and the Science Commons protocol as it has to be compatible with both. This means waiving more than copyright in the CCZero waiver version (which is clearer in the protocol than the legal code). The CC Zero assertion (on the other hand) only covers copyright, so I wonder if this is compliant with the protocol.
You also quite rightly bring up third party rights:
"You can't waiver anyone else's competing interests in a work. Perhaps the check box declaration should state that the owner waives the rights that they hold over the work? But again, this comes back to the kinds of uncertainty problems that were common in the discussion around the Virgin Mobile case and around use of the CC PD Declaration."
Just as you state, you can't give up rights that aren't yours. I don't think that CCZero can on its own ever clearly cover all rights (or can any of the other CC licences), only the rights the rightsholder is licensing or waiving.It has to be up to the user of the work to make the final decision on what the risks are in using a work.
As I've said over and over at talks, Creative Commons licences don't obviate the need for IP management or rights clearance, they just can make the process less painless and risky. Businesses (especially big ones like Virgin) should be savvy enough about IP to go through this process with all works, including CC licensed works.
You're right jordan. The whole idea of CC0 is to build a legal framework to implement the recommendations set out in the Science Commons protocol. Of course, as you pointed out on your blog, the breadth of CC0 is far wider than the protocol, which was looking to reduce legal and practical complexity around copyrightable and non-copyrightable material for use in databases. CC0 is for any copyrighted work.
I hadn't noticed that the CC0 Assertion declaration only references the rights in copyright. I guess because Assertion that a work is in the public domain can be made by anyone, not just the person who would, but for the expiration of copyright, hold copyright in the works. What's the situation with the other rights identified by Science Commons?