1. Professor Anne Fitzgerald Creative Commons Australia afitzgerald@lawyer.comDecember 2013 See: Explainer: Creative Commons, on The Conversation, at https://theconversation.com/explainer-creative-commons-21341 2013 Anne Fitzgerald. This presentation is licensed under the Creative Commons Attribution 3.0 Australia licence.

2. Copyright licensing traditional practiceall rights reserved All rights reserved (or, at least, most rights reserved) Use requires prior permission from the copyright owner unless within an exception to owners rights (e.g. fair dealing) under the Copyright Act Negotiating terms is cumbersome, time consuming, expensive inefficiency means high transaction costs Has led to multiple non-standard licences Problem of orphan works no identifiable copyright owner from whom permission may be obtained Arose from pre-internet era - not geared to the immediate and global nature of the internet 2013 Anne Fitzgerald. 3. all rights reserved 4. Creative Commons 5. Creative Commons a standardised system for licensing the use ofcopyright materials a suite of 6 standardised licences available in 3 forms: plain english (summary); legal codeand machine-readable code Each licence: grants baseline permissions to users to use copyright material on specified, standardised core conditions 2013 Anne Fitzgerald.. 6. Copyright licensing with CC licences Based on copyright Only some rights reserved Relatively short, simplified, standardised licences which providepermission in advance BUT do not cover all possible kinds of permissions other kinds ofpermissions will have to be negotiated Do not contain detailed provisions covering all relevant aspects of the law Must be read in the context of copyright law (legislation & judgments) and often other relevant bodies of law (e.g. private international law jurisdictional issues and applicable law) Also have to be read in context of other relevant information laws notably privacy (data protection), security, and interception of communications (telecommunications) - See Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009) 2013 Anne Fitzgerald.. 7. In short, Creative Commons is . A set of licences that are free for anyone to use Based on copyright A copyright licence (permission to use) A way of managing copyright, particularly for materialdistributed online 2013 Anne Fitzgerald.. 8. CC licence versions http://creativecommons.org.au/learn-more/licences Version 1.0: 16 December 2002 the generic licences, based on UScopyright law and concepts Version 2.0: May 2004 Version 2.5: May 2005 first Australian CC licences were ported licences, developed from the generic licences porting means adapting the generic licences to the laws andlanguages of CC Affiliates worldwide Within a few years, the generic licences were ported to more than 45 jurisdictions Version 3.0: 2007 Australian ported version 3.0 licences developedfrom the unported licences were launched in 2010 Porting was carried out by more than 60 CC Affiliates, but was notpossible in countries which lacked resources or legal expertise Some countries completed the porting quickly (eg NZ in 2007) but in others it was delayed (eg the Arabic version was launched in late 2013) Ported version 3.0 licences for Intergovernmental Organisations (IGOs) launched in December 2013 9. CC licence versions It was against this background that the development of a new, international version of the CC licences was proposed in 2011 Drafting of the version 4.0 licences began in late 2011 - involved extensive consultations between CC headquarters lawyers and international CC Affiliates, stakeholders and the broader community over a 2-year period Many jurisdiction-specific copyright and licensing issues were identified and addressed The aim was to produce an internationalised, easy-to-use version of the licences suitable for use worldwide, by simplifying both their structure and expression The version 4.0 international licences were launched on 25 November 2013 they are intended to: be more interoperable with other open content and open sourcelicences; better meet the needs of certain categories of users (notably, governments and intergovernmental organisations); and extend the use of CC licences to data and public sector information 10. Version 4.0 The approach taken in developing the version 4.0licences is a significant departure from that which had prevailed from 2005 The version 4.0 licences are intended to be suitable for use as is, without the need for porting The expectation is that the version 4.0 CC licences will be legally effective worldwide and that few, if any, jurisdiction-specific ports will be required They have been translated into the languages of many CC Affiliate countries and the official translations are to be treated as equivalent to the original English language version 11. Structure of the version 4.0 licences For version 4.0 licences, seehttp://creativecommons.org/licenses/ Licence chooser: http://creativecommons.org/choose/ The licence structure has been simplified (8 sections, as compared to 13 in version 3.0) Explanatory information about the operation of the licences before the licence text Considerations for licensors, Considerations for the public Section 1 - Definitions Section 2 - Scope Section 3 - License Conditions Section 4 - Sui Generis Database Rights Section 5 - Disclaimer of Warranties and Limitation of Liability Section 6 - Term and Termination Section 7 - Other Terms and Conditions Section 8 Interpretation 12. Considerations for licensors Considerations for licensors: Our public licenses areintended for use by those authorized to give the public permission to use material in ways otherwise restricted by copyright and certain other rights. Our licenses are irrevocable. Licensors should read and understand the terms and conditions of the license they choose before applying it. Licensors should also secure all rights necessary before applying our licenses so that the public can reuse the material as expected. Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright. More considerations for licensors. 13. Considerations for the public Considerations for the public: By using one of our publiclicenses, a licensor grants the public permission to use the licensed material under specified terms and conditions. If the licensors permission is not necessary for any reason for example, because of any applicable exception or limitation to copyrightthen that use is not regulated by the license. Our licenses grant only permissions under copyright and certain other rights that a licensor has authority to grant. Use of the licensed material may still be restricted for other reasons, including because others have copyright or other rights in the material. A licensor may make special requests, such as asking that all changes be marked or described. Although not required by our licenses, you are encouraged to respect those requests where reasonable. More considerations for the public. 14. Copyright-based licences The version 3.0 CC licences are predicated upon theexistence of copyright in the materials to which they are applied. In granting permission to users to use the material, the effectiveness of the licences is based on the underlying copyright interests. The material encompassed by the term Work in the version 3.0 licences includes literary, dramatic, musical and artistic works, as well as sound recordings, cinematographic films, television and sound broadcasts, and published editions. In other words, the definition makes it clear that the term Work refers to the copyright material to which the licence is applied and that any kind of material to which copyright applies is included within its scope. 15. Copyright-based licences The version 4.0 licences grant permissions that are broaderin scope than those granted under the version 3.0 licences The version 4.0 licences are based on copyright and sui generis database rights in the Licensed Material Copyright is used in a broad sense and includes forms of protection that are styled as neighbouring rights (such as performers rights) The version 4.0 licences are based on Copyright and Similar Rights which are defined as copyright and/or similar rights closely related to copyright,including, without limitation, performance, broadcast, sound recording and Sui Generis Database Rights, without regard to how the rights are labelled or categorized 16. Copyright-based licences Licensed Rights are defined as meaning the rightsgranted to the recipient (addressed as You): subject to the terms and conditions of this PublicLicense, which are limited to all Copyright and Similar Rights that apply to Your use of the Licensed Material and that the Licensor has authority to license. Licensed material means the artistic or literarywork, database, or other material to which the Licensor has applied [the CC licence] CC BY version 4.0, Section 1(g). 17. Baseline permissions Fundamental baseline rights granted by all version 4.0 CClicences: to exercise the Licensed Rights in the Licensed Material to (A) reproduce and Share the Licensed Material, in whole or in part The baseline permissions granted under the version 4.0 licences are more extensive than those granted under the version 3.0 licences - the Licensed Rights in the version 4.0 licences consist of copyright and similar rights (and, specifically, sui generis database rights) In the licences without the NC condition the rights granted may be exercised by the recipient of the CC Licensed Material for commercial purposes 2013 Anne Fitzgerald. 18. Baseline permissions: reproduce and share Unlike the version 3.0 licences, the version 4.0 licencesdo not define reproduce but provide an expansive definition of Share Share means: to provide material to the public by any means orprocess, such as reproduction, public display, public performance, distribution, dissemination, or communication, and to make material available to the public including in ways that members of the public may access the material from a place and at a time individually chosen by them, in all cases only to the extent permission is required under the Licensed Rights. 19. Baseline permissions: databases The provisions relating to sui generis databaserights, in Section 4 of the version 4.0 CC licences, explain that where the Licensed Material includes a database in which sui generis database rights exist, the grant of permission to reproduce and Share is to be read as including the right to extract, reuse, reproduce, and Share all or a substantial portion of the contents of the database. 20. Additional baseline permissions Adapted Materials For those version 4.0 licences which do not carry the ND condition, the licence additionally grants to Licensees permission to produce, reproduce and Share Adapted Material Adapted Material replaces the concept of Derivative Work that appears in the version 3.0 Australia licences. Adapted Material is defined as: material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified by You in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced when the Licensed Material is synched in timed-relation with a moving image. A further point of difference between the version 3.0 and version 4.0 licences is that the latter do not make any reference to the use of the CC-licensed work in a Collection and do not define the term Collection. The definition of Adapted Material makes it clear that it refers only to material that is added by the person who receives the CC Licensed Material. In other words, the provisions relating to Adapted Material apply only to those who use the CC Licensed Material to produce Adapted Material. 21. Core Conditions Attribution (BY) attribute the author, and no false attribution This applies to all CC licencesNon Commercial (NC) no commercial use (as defined)No Derivatives (ND) no changes allowed to original workShare Alike (SA) changes allowed, but new work is to be distributed under the same licence as the original work * ND and SA cannot be used together 2013 Anne Fitzgerald.. 22. Licence combinations 2013 Anne Fitzgerald. 23. Attribution (BY) 24. Attribution (BY) The Attribution condition is fundamental to CC and isfound in all six CC licences. It is the only core condition included in the Attribution licence (CC BY) which is the least restrictive of the CC licences, permitting the broadest reuse and distribution of the licensed material and imposing the least restrictions. The Attribution requirements in the version 4.0 CC licences are similar to those in the version 3.0 licences, but have been simplified and are more flexible, in order to better reflect common practice. In the version 4.0 licences, the Attribution and marking requirements have been consolidated into a single section, in which the requirements are set out in list form. 25. Attribution (BY) The version 4.0 licences do not require reference to the title of the work and make it clear that it is only necessary to make reference to other forms of attribution information (such as the identity of the creator or other designated parties and a copyright notice) if the Licensor has supplied that information with the Licensed Material. The onus is on the Licensor to provide the relevant attribution information with the Licensed Material. The Attribution condition under the version 4.0 CC licences requires the Licensee to comply with the following requirements whenever the Licensed Material or Adapted Material is Shared: where the relevant information is supplied by the Licensor with the Licensed Material: identify the creator(s) of the Licensed Material and others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym or trademark); retain a copyright notice; retain a notice that refers to the CC licence applied to the Licensed Material and the disclaimer of warranties; and retain a URI or hyperlink to the Licensed Material if reasonably practicable; indicate modifications that have been made to the Licensed Material and retain any indication of any previous modifications to the Licensed Material; and indicate that the Licensed Material is licensed under the CC licence and include the text of, or the URI or hyperlink to the CC licence. 26. Attribution (BY) The Attribution obligations must be met whenever the Licensed Material is Shared, that is, wheneverthe Licensed Material is provided to the public by any means or process, whether active (for example, by reproduction, distribution or communication) or passive (for example, making it available so the public can access it at their convenience) 27. Non Commercial (NC) 28. Non Commercial (NC) CC licences with the NC condition permit the licensedmaterial to be used by Licensees, provided such use is not for commercial purposes Commercial is defined in the version 3.0 Australia licences as meaning primarily intended for or directed towards commercial advantage or private monetary compensation In the version 4.0 licences, NonCommercial is defined in similar terms, although the word private no longer appears: NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation 29. No Derivative Works (ND) 30. No Derivatives (ND) The CC Attribution No Derivatives licence (CC BY-ND)prohibits the alteration or transformation of the licensed work to create Derivative Works (in the version 3.0 Australia licences) or Adapted Material (in the version 4.0 licences) The ND condition means the CC-licensed work can only be used in the form in which it has been distributed by the Licensor and cannot be changed or modified It does not prevent modifications that are technically necessary to exercise the licensed rights in other media and formats. The version 4.0 licences make it clear that the Licensed Material may be reproduced and Shared either in whole or in part, provided it is not used to produce Adapted Material. 31. Share Alike (SA) 32. Share Alike (SA) If You Share Adapted Material You produce, the followingconditions also apply. The Adapters License You apply must be a CreativeCommons license with the same License Elements, this version or later, or a BY-SA Compatible License. You must include the text of, or the URI or hyperlink to, the Adapter's License You apply. You may satisfy this condition in any reasonable manner based on the medium, means, and context in which You Share Adapted Material. You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, Adapted Material that restrict exercise of the rights granted under the Adapter's License You apply. 33. Governing law The unported version 3.0 CC licences (the international licences) did not specify the law of any particular jurisdiction as the governing law for the licences but in the Australian versions of the 2.5 and 3.0 CC licences, in the interests of providing greater clarity and certainty for Licensors, the GoverningLaw clause specified the jurisdiction whose laws were to apply to the licence The Governing Law clause in the Australian version 3.0 CC licences states that the construction, validity and performance of the licence shall be governed by the laws in force in the Australian Capital Territory, Australia in the version 2.5 Australian CC licences, the governing law was the laws of the State of New South Wales. The version 4.0 CC licences do not contain a default rule for choosing the jurisdiction whose law is to apply to the licence and do not provide for the law of any particular jurisdiction to be nominated as the governing law - means that Licensors and Licensees are provided with no practical guidance and means that, in the event of a dispute involving the licences, it will be left to domestic courts to determine the governing law in accordance with conflicts of laws rules - This outcome was reached following extensive consultation and consideration of a range of options during the drafting of the version 4.0 licences - it is intended that the version 4.0 CC licences will operate on the same basis worldwide 34. CC Australia See: Explainer: Creative Commons, on The Conversation athttps://theconversation.com/explainer-creative-commons-21341 More information at creativecommons.org.au and creativecommons.org Twitter: @ccAustralia @eduCCau @govCCau Facebook: http://www.facebook.com/ccAustralia Professor Anne Fitzgerald Publications: http://eprints.qut.edu.au/view/person/Fitzgerald,_Anne.html Twitter: @AnneMFitzgeraldCC & Government Guide: Using Creative Commons 3.0 Australia Licences on Government Copyright Materials Anne Fitzgerald, Neale Hooper & Cheryl Foong (2011) http://eprints.qut.edu.au/38364/ http://creativecommons.org.au/sectors/government