NZGOAL Guidance Note 5: Comparison of Creative Commons 3.0 New Zealand and 4.0 International licences

Introduction

1          When NZGOAL was first released in August 2010, it supported use of the Creative Commons 3.0 New Zealand licences. At that time, this made obvious sense. The 3.0 New Zealand licences had adopted a plainer English drafting style than their overseas predecessors and had been drafted to accommodate New Zealand law. The process of drafting a set of Creative Commons licences to accommodate a particular jurisdiction's law is known as "porting".

2          Since that time Creative Commons has developed a non-ported but internationally compatible version of its licences, the Creative Commons 4.0 International licences. These licences were developed after wide-ranging international consultation, including with New Zealand through Creative Commons Aotearoa New Zealand and the Government, and were released in November 2013. One of the goals of the wide-ranging consultation was to ensure that the International licences would be compatible with the laws of a wide range of jurisdictions.

3          In addition to the input that was given to Creative Commons Headquarters by New Zealand and Australian lawyers during the consultation process, the finalised 4.0 International licences have been further reviewed against New Zealand law. They are considered to be compatible with New Zealand law and suitable for adoption by State services agencies and others. Version 2 of NZGOAL adopts them in preference to the 3.0 New Zealand licences.

4          This Guidance Note provides a comparison of the Creative Commons 3.0 New Zealand licences and the 4.0 International licences, to explain why version 2 of NZGOAL adopts the 4.0 International licences in preference to the 3.0 New Zealand licences.

Key differences

5          The key differences between the 3.0 New Zealand licences and the 4.0 International licences are set out below, with a comment as to which set of licences is considered preferable on each of the subjects discussed.

Preliminary notes

3.0 New Zealand licences             

Contain no preliminary notes equivalent to those in the 4.0 International licences.

Do not state the licences are irrevocable. That is generally considered to be the case but the 4.0 International licences state expressly that they are irrevocable.

4.0 International licences

Contain helpful preliminary notes in the form of 'considerations for licensors' and 'considerations for the public', with 'more information' links for further information.

The 'considerations for licensors' are helpful in explaining that the licences are irrevocable and that licensors should secure all rights necessary before applying the licences so that the public can re-use the material as expected. They also note that licensors should clearly mark any material not subject to the licence. This is all consistent with guidance in NZGOAL but it is helpful to see it within the licences themselves

Comment

The 4.0 International licences are preferable in this regard.

Adaptations and Adapter's licence

3.0 New Zealand licences

The ShareAlike versions state that each time a licensee distributes an Adaptation:

  • the licensor agrees to offer to users a licence to use the licensed work on the terms of the CC licence; and
  • the licensee of the original licensed work agrees to offer to the user a licence to use the Adaptation on the same or equivalent terms.

4.0 International licences

The ShareAlike versions are clearer on the topic of Adapted Material. They:

  • include the new defined term "Adapter's Licence" which means the licence "You apply to Your Copyright and Similar Rights in Your contributions to Adapted Material in accordance with the terms and conditions of this Public License"; and
  • draw a clearer distinction between the content that the original licensor is licensing versus the new content in the adaptation that the licensee is licensing. Section 2(a)(5)(B) states that "[e]very recipient of Adapted Material from You automatically receives an offer from the Licensor to exercise the Licensed Rights in the Adapted Material under the conditions of the Adapter's Licence You apply"; and section 3(b) (ShareAlike) states that "if You [the licensee] Share Adapted Material You produce... [t]he Adapter's Licence You apply must be a Creative Commons license with the same Licence Elements ... and You must include the text of, or the URI or hyperlink to, the Adapter's License".

Comment

The clarification in the 4.0 International ShareAlike licences is helpful. The 3.0 NZ licences are still legally robust on this point of property law, but the 4.0 International licences are clearer.


Copyright and Similar Rights

3.0 New Zealand licences

Do not need to (and therefore do not) have a broad definition of the licensed rights that, in addition to copyright, includes (for example) sui generis database rights. This is because there is no statutory "database right" in NZ distinct from copyright. In NZ, databases are protected (if the statutory conditions are met) by copyright. By contrast, in Europe, there is a distinct sui generis database right that can provide additional protection.

4.0 International licences

Include the new defined term "Copyright and Similar Rights" which means "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 labeled or categorized". They needed to do this to accommodate the separate database right (potentially among others) in Europe (and possibly elsewhere).

They also contain a new provision (section 4) on sui generis database rights that is not relevant to State services agencies' licensing of their copyright works (as it has no application).

Comment

Whilst the 4.0 International licences do not have the effect of importing a European database right through the back door, this definitional difference and the new section 4 could be confusing to those in New Zealand who are unfamiliar with the European sui generis database right. This should not, however, be seen as a reason not to adopt the 4.0 International licences as the rationale for these provisions can be explained and users are unlikely to be concerned by it (or in some cases even notice it).

Moral rights

3.0 New Zealand licences

They state that the licensee must not:

  • "falsely Attribute the Work to someone other than the Original Author"; or
  • "subject the Work to any derogatory treatment as defined in the Copyright Act 1994 provided that if the Licensor is the Original Author the Licensor will not enforce this sub-clause to the extent necessary to enable You to reasonably exercise Your right under clause 2.1 to make Adaptations but not otherwise".

They also state that:

"If the Licensor is the Original Author the Licensor waives its moral right to object to derogatory treatments of the Work to the extent necessary to enable You to reasonably exercise Your right under this Licence to make Adaptations but not otherwise. If the Licensor is not the Original Author the Work will still be subject to the moral rights of the Original Author."

These statements properly reflect the language of the moral rights provisions found in the Copyright Act 1994.

4.0 International licences

Take a more generic approach to moral rights that reflect differences across jurisdictions, stating that:

"Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise."

Comment

The 3.0 NZ licences are clearer, for NZ audiences, in their coverage of moral rights. This is not considered, however, to pose any real impediment to uptake of the 4.0 International licences as the legal position expressed under the 3.0 NZ licences still substantially applies when a 4.0 International licence is used. False attribution and subjection of works to derogatory treatment remains regulated by statute (with the latter only being waived where possible and to the limited extent necessary to allow one to exercise the licensed rights) and the 4.0 International licences do not and cannot affect an original author's moral rights under the Copyright Act where the licensor is not the original author. Note also that moral rights issues hardly ever arise in the context of the licensing of State Services agencies' copyright works.

No endorsement

3.0 New Zealand licences

They state that a licensee must "not assert or imply any connection with sponsorship or endorsement by the Original Author or Licensor of You or Your use of the Work, without the separate, express prior written permission of the Original Author or Licensor".

4.0 International licences

They are clearer on this topic, stating:

"No endorsement. Nothing in this Public License constitutes or may be construed as permission to assert or imply that You are, or that Your use of the Licensed Material is, connected with, or sponsored, endorsed, or granted official status by, the Licensor or others designated to receive attribution... ."

Comment

The 4.0 International licences are preferable in this regard.

Attribution

3.0 New Zealand licences

They all require licensees to:

  • refer to the relevant CC licence (by URI, spoken word or as appropriate to the media used) on all copies, adaptations and collections distributed by licensees; and
  • recognise the licensor / original author's right of attribution in any work, adaptation and collection that is distributed and ensure that the licensor / original author is credited as appropriate to the media used (but a licensee must remove such a credit if requested by the licensor / original author).

In addition, licensees must "to the extent reasonably practicable, keep intact all notices that refer to this Licence, in particular the URI, if any, that the Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work".

4.0 International licences

They set out the attribution and related requirements in a clearer manner and provide greater flexibility to licensors as to the forms of attribution they can require. For example, in addition to linking to or providing the text of the CC licence, if a licensee/user shares the licensed material (e.g., publishes or distributes it), he or she must retain, if supplied by the licensor with the licensed material:

  • identification of the creators and others designated to receive attribution, in any reasonable manner requested by the licensor;
  • a copyright notice;
  • a notice that refers to the licence;
  • a notice that refers to the disclaimers and warranties in the notice; and
  • a URI or hyperlink to the licensed material to the extent reasonably practicable.

Helpfully for licensees, the 4.0 International licences also state expressly that one may satisfy these requirements "in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material". "For example", they go on to say, "it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information". Whilst this was common practice and permissible under the previous licences, it is helpful to see the point made expressly.

Comment

The 4.0 International licences are preferable on the topic of attribution.

Modification

3.0 New Zealand licences

Those 3.0 NZ licences that permit licensees to make adaptations require licensees to "take reasonable steps to ensure any Adaptation clearly identifies that changes were made to the Original Work".

4.0 International licences

Those 4.0 International licences that permit licensees to make adaptations require licensees to "indicate if [they] have modified the Licensed Material and retain an indication of any previous modifications".

Creative Commons added the requirement to retain an indication of prior modifications "so that important information about the source of a work (e.g., that a film is based on a novel) is retained."[1]

Comment

Whilst the wording in the 4.0 International licences may provide slightly more comfort to agencies that are concerned about preserving the authenticity of their original licensed works, the differences between the wording in the two sets of licences will usually be immaterial.

Enabling more anonymity when required

3.0 New Zealand licences

They require licensees to credit the licensor/original author in, for example, any copy or adaptation of the licensed work that is distributed or published, but also to "remove such credit if requested".

The separate obligation to "keep intact all notices that refer to this Licence, in particular the URI, if any, that the Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work", does not contain a corresponding removal obligation if requested by the licensor/original author.

4.0 International licences

They state that, if requested by the licensor, a licensee must remove any attribution, copyright notice, notice that refers to the licence, notice that refers to the disclaimers and warranties and/or the URI or hyperlink to the licensed material, to the extent reasonably practicable.

Comment

The wording in the 4.0 International licences provides greater flexibility for licensing agencies in situations where they "wish to disassociate themselves from uses of their works they object to, even if their work hasn’t been modified or published in a collection with other works".[2]

Termination and reinstatement of licences

3.0 New Zealand licences

Under the 3.0 NZ licences, the rights granted under them terminate automatically upon any breach by a licensee/user. There is no provision dealing with reinstatement in specified circumstances.

4.0 International licences

They contain a similar termination provision and also a new reinstatement provision, stating that, if a person's licence has terminated due to violation of its terms, it reinstates "automatically as of the date the violation is cured, provided it is cured within 30 days of Your discovery of the violation; or upon express reinstatement by the Licensor". 

Reinstatement does not affect a licensor's remedial rights arising from the violation.

Comment

The reinstatement provision in the 4.0 International licences may be desirable in a government licensing context as it enables, for example, citizens who innocently breach the licence terms to have their licences reinstated if the conditions for reinstatement are met.

Additional terms

3.0 New Zealand licences

Each licence states:

"This Licence constitutes the entire Licence Agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. The Licensor shall not be bound by any additional provisions that may appear in any communication in any form."

4.0 International licences

Each licence states:

"The Licensor shall not be bound by any additional or different terms or conditions communicated by You unless expressly agreed.

Any arrangements, understandings, or agreements regarding the Licensed Material not stated herein are separate from and independent of the terms and conditions of this Public License."

Comment

The 4.0 International licences are preferable on this point as they expressly contemplate additional terms / agreements between the licensor and licensees, thereby removing the potential for argument (no matter how weak) that additional or subsequent agreements are not enforceable. There may be cases where this would be helpful (e.g., where copyright material is accessed through an API), as long as the additional terms do not conflict with the freedoms in the licences.



Conclusions

6          The comparison above reveals that, across a number of subjects, the 4.0 International licences are clearer or otherwise preferable to the 3.0 New Zealand licences (e.g., preliminary notes, Adaptations and Adapter's licence, no endorsement, attribution, enabling more anonymity when required, termination and reinstatement of licences, and additional terms).

7          There are a couple of subjects on which the 3.0 New Zealand licences are preferable (i.e., Copyright and Similar Rights and moral rights).

8          The advantages of the 4.0 International licences are considered to outweigh the smaller number of potential disadvantages. The disadvantages are unlikely, in any event, to be material and the Copyright and Similar Rights point (regarding the European database right) can be explained if and when required.

For these reasons NZGOAL supports agency use of the Creative Commons 4.0 International licences and recommends that agencies adopt them in preference to the 3.0 New Zealand licences. In addition to the advantages noted above, it is considered desirable for agencies to use a set of licences that will become increasingly known and adopted around the world.



[2]           "What's new in 4.0?" at http://creativecommons.org/version4

Page last updated: 21/12/2016