A call for editorial input in developing new Creative Commons licensing

Community-elected Wikimedia board member Kat Walsh is a copyright lawyer and free-culture advocate. This month she joined the San Francisco–based non-profit Creative Commons (CC) as an attorney. CC is devoted to expanding the range of creative works available for others to build on legally and to share, and has released several copyright-licenses free of charge to the public.

Creative Commons (CC) is currently working on version 4.0 of its suite of copyright licenses, which include the CC-BY-SA and CC-BY licenses used by the Wikimedia projects. Wikimedia adopted BY-SA-3.0 in 2009, and we hope that the 4.0 version will be superior for all license users, including Wikimedia. But to meet its goals, CC needs your input into the revision process.

Background and goals of the 4.0 process

The CC wiki lists five ambitious goals for the revision:

• Internationalization, by further adapting the core suite of international licenses to operate globally, ensuring they are robust, enforceable and easily adopted worldwide;
• Interoperability, by maximizing interoperability between CC licenses and other licenses to reduce friction within the commons, promote standards, and stem license proliferation;
• Longevity, by anticipating new and changing adoption opportunities and legal challenges, which will allow the new suite of licenses to endure for the foreseeable future;
• Focus on data, public-sector information (PSI), science, and education, by identifying and addressing impediments to the adoption of CC by governments and other institutions in these and other critical arenas; and
• Support for existing adoption models and frameworks, by accommodating the needs of our existing community of adopters leveraging pre-4.0 licenses, including governments and other important constituencies.

CC published the 3.0 license suite in early 2007. Over the past five years, those licenses have been widely used for works that are free to share without all of the restrictions of standard copyright. They've been adopted by cultural institutions, national and local governments, media-hosting websites, educational projects, and popular artists. Wikimedia is one of the largest and most prominent users, with a community whose goals to make available the free and open sharing of knowledge are closely aligned with those of CC, so the needs of the Wikimedia communities are an important consideration for CC.

In the past several years, use by the Wikimedia communities and others has revealed opportunities for improvement. For example, the specific requirements for attribution have proved difficult to follow, even for the most diligent, good-faith reusers. Many users have been concerned that the licenses don't adequately address database rights, moral rights, and copyright-like rights, to ensure they create the right expectations for both licensors and reusers. And while CC licenses have been officially "ported" to many jurisdictions to make them more closely aligned with local laws, the international (formerly "unported") license is in wide use globally; to make it as good a legal tool as possible for a worldwide community of users, it needs revision to better address the legal requirements of all national jurisdictions.

All of this is done keeping in mind the need to be responsible stewards of the license, and that the new version needs to continue to uphold the expectations of those using them to extend the commons. CC has been actively consulting with organizations such as Wikimedia, the Free Software Foundation, and the Open Knowledge Foundation to ensure that changes to the licenses don't inadvertently harm the freedoms those licenses are intended to help in the first place.

CC general counsel Diane Peters explained the goals in more detail in her blog post following last year's CC Global Summit.

Your help is needed

To achieve these ends, the CC community is currently discussing several open questions on its mailing lists (community and licenses) and wiki. Many members of the Wikimedia communities have already contributed to those discussions, including individual volunteers and Wikimedians who are part of CC's international affiliate teams. The first public draft is now open for comment and discussion. Throughout the drafting process, CC will make more focused calls for input, asking specific questions. (The most recent call was five open questions on attribution here.)

Wikimedia has already been involved in the drafting process. I attended the CC Global Summit last September on behalf of Wikimedia and began talking to the CC legal team about the variety of issues Wikimedia faces with licenses. Wikimedia's Legal and Community Advocacy team (especially legal counsel Michelle Paulson) has been giving input on the process since the announcement in September.

But for the licenses to be suitable for diverse uses, it takes more than just a few heads coming together. Copyright mavens outside the US are especially needed to look at jurisdiction-specific issues to ensure the licenses are valid worldwide. Many of the open questions depend on knowledge of a wide range of community practices. Do you work with print reusers, GLAMs or other national institutions, or mirrors and forks of Wikimedia content? Do you handle photo submission requests, or use freely-licensed photos in MediaWiki skins? Every volunteer has a particular area of expertise that is difficult for others to know about without your help. Where do you see the greatest opportunities for improvement in the licenses, to best encourage sharing and reuse?

Even if you're not a licensing expert, you can help by sharing the calls for comment with parts of the community who would be interested and haven't seen it yet, and by translating the calls for information and posting them on your language's community forums.

4.0 process timeline

According to the draft timeline, the second draft will be published next month, with another comment period before the third draft in September; by that stage, the process should be nearly complete. Final comments will be taken after the third draft, and if all goes as scheduled, the final draft of the licenses will be published sometime around December 2012. (The earlier that proposed changes are discussed, the more likely it is that they can be addressed and potentially included!).

After the final revision is published, Wikimedia will begin a process of deciding whether to adopt the later version of the CC-BY-SA license as the primary license for its projects. With board, staff, and community input from the earliest stages, we hope this will be a smooth process, and that potential problems will be raised and discussed well before the final draft is published.

New connections

By taking a legal counsel job with CC, joining its small legal team, I'm thrilled to have the chance to work on these issues full-time. The most frequent question put to me about the job is "will you have to leave Wikimedia?" I'm happy to say that the answer is no. Instead, I'm looking forward to using my knowledge of Wikimedia and its legal and strategic challenges to help CC achieve its goals of creating infrastructure for sharing knowledge and culture.

One challenge I'll have is being clear who I'm speaking for when talking about licensing. (Here, I have my Wikimedia hat on!) I'll also recuse myself from board decisions involving CC and CC licensing. But in practical terms, I'm hoping to face very few actual conflicts: one of the most rewarding things about being part of Wikimedia is that I think that Wikimedia's goals really do serve the public interest, and I think the same of CC. This licensing process is intended to be the last revision for a long while; what is at stake is powerful long-term effects on the ability to share and reuse material in the commons all over the world.

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• My experience is that there should be some middle ground between SA and NC. There are major institutions that cling to NC, because SA is a step too far for them. Charles Matthews (talk) 20:18, 26 June 2012 (UTC)[reply]
  • Those are really two different things; I'm not clear on what sort of provision would be considered "middle ground" between them. Powers ^T 11:34, 28 June 2012 (UTC)[reply]
    • I didn't say it is obvious: it is one for lawyers to wrestle with. I said there is a clear need. My hope is that a new generation of licenses would recognise that the stark commerce allowed/commerce not allowed binary choice is missing the actual concerns of big players. Charles Matthews (talk) 19:48, 28 June 2012 (UTC)[reply]
      • What are these concerns? Would you recommend allowing some commercial use, but not all? And what does commercial use have to do with the ShareAlike provision? Powers ^T 21:13, 28 June 2012 (UTC)[reply]
    • Three questions there, then. First point: for example Wellcome Trust Sanger Institute and British Museum start from NC as default, and their concerns may be different in the two cases, but real. Second point: I just ask if there is a manner in which "accounting standard" rather than "business model" could be used. Third point: Wikimedia recommends CC-by-SA (in effect); if CC-by-NC is in use or the "natural" license for (say) a non-profit, or potential donor to Commons, the case has to be made that SA is an improvement or win-win. Charles Matthews (talk) 09:54, 29 June 2012 (UTC)[reply]
      • CC-by is more free than CC-by-SA, so we as a movement would have no problem with anyone wants to drop the ShareAlike, if they don't like that provision for some reason. As to your first point, you didn't actually explain what these organizations' concerns are; just knowing that they have concerns is not helpful. As to your second point, I don't understand the distinction between "accounting standard" and "business model"; I don't think either term appears in the CC-by license terms. Powers ^T 18:10, 29 June 2012 (UTC)[reply]
        • • I think it is "not helpful" to speculate in public about the concerns of major institutions who are in a sense already Wikimedia partners. In fact it is plain bad taste. There are several prominent Wikimedians who works at the Sanger; GLAM relationships with the British Museum mean we can ask them directly any time we want about their licensing policy. You can also research these things if you need to. This is after all just a comments place.
          • I didn't claim anything about the current CC licenses. I'm simply pursuing a line of thought, since you didn't seem to be following at all a discussion I thought was current. When we say "non-commercial" what do we mean? We tend to mean "not for profit": but banning reuse of material from the BM (say) simply because there is a charge made is not we do (for good reason). Given the size of Web content, a "finding service" for images might be acceptable if it really met the cost of finding, without a high premium. Reuse in printed form where there is a charge for printing costs only is sort of "non-profit" activity. I just have a vague feeling that accountancy and the idea that "profit centres" can be tracked might be an idea that has some legs.
          • I know that academics tend to think that NC is OK, because there is no money in academic use of anything (to speak of, in most cases). We take a different line, and are right to IMO, but we have to make a clearer argument. Charles Matthews (talk) 14:50, 30 June 2012 (UTC)[reply]
            • I'm not sure what discussion I haven't been following... maybe you could provide a link? I'm afraid the bulk of your response has gone over my head. Either I'm being dense, or you're being confusing, and I'm not sure which. Powers ^T 14:25, 3 July 2012 (UTC)[reply]
        • Actually no, not necessarily. CC-by can be worse because we don't want people taking free content and selling it for their own personal gain. Ed ^{[talk] [majestic titan]} 18:35, 29 June 2012 (UTC)[reply]
          • Why not? Kaldari (talk) 21:17, 30 June 2012 (UTC)[reply]
            • One of our goals is to "Imagine a world in which every single human being can freely share in the sum of all knowledge" i.e. not stuck behind paywalls... Ed ^{[talk] [majestic titan]} 00:18, 1 July 2012 (UTC)[reply]
              • CC-by doesn't allow anyone to sell free content; it allows them to use free content to sell other things. The free content remains free. Powers ^T 14:25, 3 July 2012 (UTC)[reply]
• Hopefully this will end the World Health Organizations refusal to move to CC by dealing with their concern that CC holds them to national legal jurisdiction. --Doc James (talk · contribs · email) (please reply on my talk page) 01:59, 28 June 2012 (UTC)[reply]
• For me the most important goal is improved compatibility with other licenses, namely cc-by-sa with GPL (as discussed on the Mailing list). That would reunite the two biggest pools of copyleft culture and remove the currently existing arbitrary legal barriers between free software and free artwork. Draketo (talk) 19:18, 28 June 2012 (UTC)[reply]
  • The main impediments to these licenses being compatible are on the GPL end, not the CC end. That said, copyleft licenses are inherently difficult to make compatible as this is the nature of copyleft (since the licenses must be maintained). Kaldari (talk) 21:23, 30 June 2012 (UTC)[reply]