In November 2013 was launched the 4.0 version of the Creative Commons licenses. However, we still have many questions about it. Luisa Guzman, from Creative Commons Colombia, points out some of the improvements and benefits for the CC community.

By Luisa Guzman*

The 4.0 are already here.
The Creative Commons (CC) licenses are 4.0 international licenses that, compared to previous versions, are a more comprehensive legal toolkit that are ready for use in any jurisdiction in the world, without having to conform to a specific country’s laws.

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The 3.0 version of the CC licenses and their predecessors has been adapted and translated into domestic laws in a process known as “porting.” With the aid of volunteers and experts in copyright and open licensing, the licenses have been adapted to particularities of local laws in 60 jurisdictions. The new 4.0 licenses will not be ported but will do have official translations for users of CC-licensed works around the world to be able to read and understand their terms in their local languages. It is worth noting that the new licenses employ an improved terminology in order to facilitate global understanding.

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One of Creative Commons’ goals with this new approach is that these tools enable anyone sharing their work anywhere, under standard conditions worldwide, which in turn can make them enforceable. Creative Commons will consider porting for 4.0 licenses only where it is shown that this is absolutely necessary for the licenses to operate.

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Creative Commons recommends to always use the new versions of the licenses because they incorporate changes extensively discussed with the CC community and experts, which makes the licenses better tools. Nevertheless, earlier versions of the licenses that had already been ported, as the 2.5 in Colombia, remain valid and can be used if required.

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What are their validity and how they coexist with prior versions of the licenses?
Firstly, it is important to note that the new 4.0 licenses do not automatically apply to works that had been licensed with an earlier CC version. In order to implement improvements, holders may re-license their works with the 4.0 CC. If not, the existing licenses remain in force under the same terms. This means that the version of a CC license is valid as people use it, because its features apply to contents that have been licensed to it. Therefore, when a new version is released, it is advised to use the new version in the future (when a new content will be licensing) as it is “improved” one. In that sense, the different versions coexist.

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The decision does not respond to an exact process. In fact, it is similar to what happens to the software, whose versions are “repaired” or “improved” as necessary. The use of a version of a particular license uncovers weaknesses or needs, and the community discussion identifies those problems, distinguishing the one that are superficial from which are more substantial. Discussions last for years and allow for debugging and evaluating of needs until changes and language are defined. Creative Commons leads the process, but the dialogue is open through discussion lists (especially http://lists.ibiblio.org/mailman/listinfo/cc-licenses).

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6 points that make the 4.0 version an improved Creative Commons licenses.

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In addition to the international approach of the 4.0 CC licenses and improvement in their terminology, the new licenses mainly differ from the 3.0 version -and in general from the previous one- because:

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• The 4.0 CC licenses make it easier granting credit for a work’s authorship (attribution).
Now it is possible to fulfill the attribution requirement of a work’s authorship by providing the website link where information on the author and the work is located.
This is the case, for example, of a CC licensed photograph taken from Flickr and using it in a blog with its own link to Flickr. Although the blog author do not directly indicate who the author is and what is the work’s title, he/she is pointing to the site where this information is located. It is simply the application of common sense and reflects a common practice on the Internet; simply, the new license removes any doubt.

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It is worth noting that now is not mandatory to mention the work’s title to properly grant attribution. The 4.0 CC licenses recognize that many works do not have title. However, it is recommended to mention it when it is known.

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This provision is especially valuable for collaborative, collective and dynamic works so distinctive of the Internet, such as Wikipedia.

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• The 4.0 CC licenses allow correcting license infringements.
All CC licenses versions prior to the 4.0 stipulated that the authorization for using a CC licensed work finished it when the user of a (“licensed”) work failed to comply with its terms. The 4.0 version permits for the recovery of the right to use a work if the license failure is corrected within thirty days of its discovery.

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• The 4.0 CC licenses have new compatibility mechanisms.
Previously, CC BY-SA licenses (Attribution-Share Alike) allowed that work contributions and adaptations were licensed with the same license or with a license compatible with CC. The new 4.0 CC licenses extend this possibility to CC BY-NC-SA licenses (Attribution-Noncommercial-Share Alike), but, so far, Creative Commons have not established which licenses are to be considered compatible.

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• The 4.0 CC licenses admit modifications in the private sphere to works that do not support derivations.
Licensees within their private sphere have the right to create work adaptations under a license that does not support derivation (such as CC BY-ND or CC BY-NC-ND) but do not grant permission to share these adaptations publicly. This change recognizes the works’ private use and supports uses such as data or text mining (and others that are not necessarily permitted by exceptions and limitations to copyright), which in some cases require work modifications. Thus, the prohibition of derivative works is limited in part (it is allowed in the private sphere), but it is not an absolute limitation of the rights granted.

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Moral rights refer to the author’s relationship with his work. They protect the reputation and value it represents for its creator. In domestic laws that are recognized, they are perpetual and irrevocable. While these rights do not exist in all legislation, the 4.0 CC licenses provide that these rights must be respected in laws that exist and, in any case, establish that the author agrees to not exercising them to the extent necessary to allow for the application of their rights under a CC license, without implying his/her resignation, as long as it is compatible with the law. It is important to recall that the attribution is a moral right and is a required element in all CC licenses.

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Moreover, as an exercise of moral rights of paternity, whoever uses a 4.0 CC license must remove the creators’ name and address (in so far as is possible) whenever he/she requested it. This provision sounds strange if we consider that the moral right is undeniable. However, the meaning is precisely linked with exercise of the right by the author, since once an author loses control over his/her work (by choice), he/she does not necessarily want to be linked to it. Under the Colombian law a similar provision already exists: the author of an architectural project cannot prevent the owner of it to make modifications, but he/she has the power to prohibit his/her name to be associated with the transformed work (Article 43 of Law 23 of 1982).

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• The 4.0 licenses apply to “sui generis” rights on databases (outside the scope of copyright).

In some countries (especially the Europeans) there is a “sui generis” right on databases that do not exist in Colombia, but can apply to content that can be accessed via the Internet (the data sets that are sources for a research undertaken in Spain are a good example). To the extent that we are in front of worldwide licensing, the 4.0 licenses also apply in respect of these rights that go beyond copyright. This ensures that, in respect of such content, people get the permissions offered by the license, for instance, to be reused, unless the licensee expressly excluded it.

*Luisa Fernanda Mejia Guzman is a lawyer and researcher at Karisma Foundation’s Law, Internet and Society Group. Twitter: @ lfdagm

Translated by, Amalia Toledo.