CC HOWTO #3: How to use a work with a Share Alike license

Creative Commons offers two licenses with the Share Alike requirement: Attribution-Share Alike (BY-SA), and Attribution-NonCommercial-Share Alike (BY-NC-SA).

The purpose of a Share Alike license is to ensure that all future adaptations and derivatives of a work carry the same permissions as the original. This way, no matter what new forms the work takes on, it will always be free, open and licensed for re-use.

Here’s the description of Share Alike in the human readable Commons Deed:

Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible license.

Here’s the pertinent language in the legal code:

You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible License.

In other words, if you make a derivative work based on the Share Alike-licensed work, you must release it under the same terms under which the original was released, either using the appropriate CC license or an approved compatible license. As of this writing, CC has not approved any licenses for compatibility, so for all intents and purposes, the Share Alike license requires you to license derivative works under a CC license. If you cannot apply the appropriate license to your derivative work, or do not wish to, then you usually shouldn’t adapt Share Alike-licensed works.

The important thing to remember about Share Alike licenses is that, with one exception [see below], the Share Alike provision only applies to derivative works, which the license calls “adaptations”. Verbatim or unaltered copies are not derivative works. They’re simply copies, and as long you comply with the other terms of the license you can make exact copies of an SA-licensed work without applying a license to the work in which it’s used.

What is a derivative work?

It’s a bit complicated.

According to Title 17 Section 101 of the Copyright Act:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The key words here are “recast, transformed, or adapted.” A derivative work involves enough creativity and originality that it constitutes a new copyrightable work. Simply converting a work from one medium to another — from print to digital, or CD to MP3 — does not produce a derivative work.

One Big Exception

There is an exception to the “Share Alike only applies to derivative works” rule: Songs used in video. Share Alike licenses use the word “adaptation” instead of the legal term “derivative work,” and include this language in the definition of “Adaptation”:

For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.

Using an unaltered song in the soundtrack to a video does not make the video a derivative work, because the song itself has not been recast, transformed, or adapted in any way. However, the language above extends the definition of adaptation to include “synchronization of [music] with a moving image,” which means that as far as Share Alike licenses are concerned, videos that use an SA-licensed song are adaptations and must be released under the same SA license as the song.

The summary: In general, the Share Alike requirement of SA licenses only applies to derivative works, except when that work involves combining SA-licensed music with film or video, in which case, the film or video must carry the appropriate SA license.

Examples

Examples of adaptations as defined by the SA license

  • Translating a short story from one language to another
  • Photoshopping a picture to add to or alter its original elements
  • Using a sample from one song to make new song

Examples of things that are not adaptations as defined by the SA license

  • Including a short story in a collection of short stories
  • Reproducing an unedited image on a website
  • Using an unedited video in the background of a live concert

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. If you have a use in mind that is also probably a fair use, the application of a Share Alike license does not require you to release the resulting work under an SA license.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they wish. Share Alike licenses don’t rule out the possibility of making an adaptation that doesn’t carry a Share Alike license, you just have to ask for permission to do so.

Previous CC-HOWTO’s:
How to attribute a Creative Commons licensed work
How to use a work with a NonCommercial license

OCLC’s new Copyright Evidence Registry

OCLC has launched the WorldCat Copyright Evidence Registry.

From the press release:

The WorldCat Copyright Evidence Registry is a community working together to build a union catalog of copyright evidence based on WorldCat, which contains more than 100 million bibliographic records describing items held in thousands of libraries worldwide. In addition to the WorldCat metadata, the Copyright Evidence Registry uses other data contributed by libraries and other organizations…

“Having a practical registry of copyright evidence is vital to our objective of providing our scholars and students with more digital content, one goal of Stanford’s mass digitization projects,” said Catherine Tierney, Associate University Librarian for Technical Services, Stanford University. “By leveraging the value of its massive database, OCLC is in a unique position to champion cooperative efforts to collect evidence crucial to determining copyright status.”

It’s good that OCLC is creating a copyright status registry. A well-populated registry, by and for librarians, with good and useful metadata, could eventually save users real time and money. Currently, we have a handful of institutions doing major digitization projects that are separately investigating copyright status on a large scale. It’s inefficient, with lots duplicated effort. Copyright evidence is exactly the kind of thing on which libraries can and should be collaborating, and OCLC seems like a logical organization to take the lead.

I do have a couple of questions/concerns.

  1. OCLC claims and enforces copyrights in its bibliographic records. While it grants member libraries permission to make broad use of those records, my understanding is that the same is not true for non-members. If OCLC extends that policy to the Copyright Evidence Registry, it risks becoming just another walled garden that is useful only to a select (and paying) group of members, and less useful even to that group than it would be if it were truly open.
  2. Right now the registry is sparsely populated. It will take a critical mass of records and contributors to become a trustworthy source of copyright evidence. Where will that critical mass come from? What is OCLC doing to build it quickly? How will users know when the registry has reached it?

Via Digital Koans.

CC HOWTO #2: How to use a work with a NonCommercial license

In addition to Attribution, some Creative Commons licenses limit the permissions they grant to non-commercial uses only.

The Human Readable summary of the NC license says,

Noncommercial. You may not use this work for commercial purposes.

The relevant language in the Legal Deed says,

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

This means that as long as you’re not making or trying to make money from your use of the licensed work, you’re okay. Common categories of non-commercial uses include educational uses, personal uses, fan uses, and just-for-fun posted-to-YouTube uses. Meanwhile, any use of a work for which the goal is to make money is not permitted under the NC license, even if the context itself is not commercial.

What seems to trip people up about the NonCommercial licenses is the difference between “non-commercial” and “not-for-profit.” It’s possible to operate in a non-profit setting and make a commercial use of a work, and it’s also possible to work in a for-profit setting and make a non-commercial use.

A pair of examples

A commercial use in a non-profit setting
Members of the not-for-profit Historical Widget Society would like to sell calendars as a fundraiser for their widget preservation efforts. They find a group of historical widget enthusiasts on Flickr, and notice that many of the photographs were released under Creative Commons licenses. Can the Widget Society use photos released under NonCommercial licenses in its fundraising calendars? No, because the calendars are “primarily intended for or directed toward commercial advantage or private monetary compensation.” Even though the “private monetary compensation” will be collected by a not-for-profit, the purpose of selling the calendars is to make money, which makes the use commercial.

A noncommercial use in a for-profit setting
The CEO of a profitable widget manufacturing company is retiring. For her retirement party, some of the staff get together one weekend to make a humorous video chronicling A Day in the Life of the CEO. The video will only be shown at the retirement celebration, and the CEO will get a copy on DVD as a gift. The staffers decide they’d like to set the video to music, and find a nice little BY-NC-licensed song on ccMixter. Can they use it? Yes, because the video for the CEO is not “primarily intended for or directed toward commercial advantage or private monetary compensation”. No one is selling the video, using it to sell something, or being paid to create it, so it’s a non-commercial use.

Threee pairs of mini examples

  1. Using an illustration on a birthday party invitation = Non-commercial
    Using an illustration on a charity auction invitation = Commercial
  2. Using a song as the soundtrack to a collection of home videos for the family reunion = Non-commercial
    Using a song as the soundtrack to an advertisement for a Family Reunion Travel deal = Commercial
  3. Using a photo on a personal website that has no ads = Non-commercial
    Using a photo on an ad-supported website = Commercial

Every situation is different, and these examples are intentionally simplistic. Before using an NC-licensed work, always take a moment to consider whether your use has anything to do with making money or selling something.

Two things to keep in mind

  1. Creative Commons licenses do not affect your fair use rights. If you have a commercial use in mind that is also probably a fair use, the application of an NC license will not stop you from making that fair use.
  2. If you would like to use a CC-licensed work in a way that is not permitted by the license, you can ask for permission. Copyright holders are free to offer as many different non-exclusive licenses as they like. NonCommercial licenses don’t rule out the possibility of commercial use, they just mean the copyright holder wants you to ask first, and possibly pay for the privilege.

[This project was inspired by some conversations on the cc-community listserv lamenting the lack of understanding among many users of Creative Commons-licensed work. I’m taking the material I use in my workshops, mixing it up with CC’s extensive documentation, and posting the results here. If you have ideas for topics you’d like me to cover, let me know. If you think I got something wrong, please let me know so I can fix it. I am not a lawyer, and these posts should not be construed as legal advice.]

CC HowTo #1: How to Attribute a Creative Commons licensed work

All Creative Commons licenses require future users to attribute the works they use:

You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)

The Creative Commons FAQ has this to say about attributing CC-licensed works:

If you are using a work licensed under one of our core licenses, then the proper way of accrediting your use of a work when you’re making a verbatim use is: (1) to keep intact any copyright notices for the Work; (2) credit the author, licensor and/or other parties (such as a wiki or journal) in the manner they specify; (3) the title of the Work; and (4) the URL for the work if applicable.

You also need to provide the URL for the Creative Commons license selected with each copy of the work that you make available.

If you are making a derivative use of a work licensed under one of our core licenses, in addition to the above, you need to identify that your work is a derivative work, ie. “This is a Finnish translation of the [original work] by [author]” or “Screenplay based on [original work] by [author].”

These instructions are clear in theory, but many people who apply CC licenses to their work do not specify how they would like to be attributed. On sites like Flickr or ccMixter, you might not be able to determine the creator’s real name, and sometimes the work doesn’t have a title. If part of the goal of Creative Commons is to reduce transaction costs, then there must be some way to use those works without having to contact the creator to ask about proper attribution.

In practice, here’s how you can handle the attribution requirements listed above:

  1. “Keep intact any copyright notices for the Work”: If a work you’re using has a notice that says “© 2008 Molly Kleinman”, reproduce that notice when you credit the work. If such a notice does not appear, don’t worry about it.
  2. “Credit the author, licensor and/or other parties (such as a wiki or journal) in the manner they specify”: If a creator has a note attached to her work that says, “Please attribute Molly Kleinman as the creator of this work,” then attribute Molly Kleinman. If there is no note, but there is a copyright notice (see above), attribute the copyright holder named in the copyright notice. If there is no note or copyright notice but there is a username, check the creator’s profile to see if it specifies how to attribute the creator’s work. If it doesn’t, attribute the username. If there is no creator or author name of any kind, but there is a website (like Wikipedia Wikinews), attribute the website by name.
  3. “The title of the Work”: If the work has a title, call it by name. If it doesn’t, you can just say “This work by Molly Kleinman…” or just “Untitled, by Molly Kleinman…” Whatever seems appropriate.
  4. “The URL for the work if applicable”: Link back to the original source of the work. I would argue that this is the most important part of the attribution notice. It can help creators keep track of places where their work appears by seeing what links are driving traffic to their websites. It also gives users of your work an easy way to track down the original source. If you are reproducing a CC-licensed work in a print format, you might prefer not to include a long and ugly URL, and there might be situations where leaving out a URL is appropriate. But in general, the link is the most valuable part of the attribution.
  5. “The URL for the Creative Commons license”: Link to the license. The original work should have a link to the license under which it was released; link to the same place. You do not need to include the full text of the license when you reproduce a CC-licensed work.

There is no standard way to format the attribution of a CC-licensed work, and you can adapt the style or phrasing to suit your needs or the standard citation style of your discipline.

Here are a few examples:

An Ideal Attribution
This video features the song “Play Your Part (Pt.1)” by Girl Talk, available under a Creative Commons Attribution-Noncommercial license. © 2008, Greg Gillis.

A Realistic Attribution
Photo by mollyali, available under a Creative Commons Attribution-Noncommercial license.

A Derivative Work Attribution
This is a video adaptation of the novel Down and Out in the Magic Kingdom by Cory Doctorow, available under a Creative Commons Attribution-Noncommercial-Share Alike license. Copyright © 2003 Cory Doctorow.

One last thing: The licenses do not require you to inform a creator that you are using her CC-licensed work, but it’s a nice thing to do. Most people are very happy to learn that someone is using and building upon their creations; that’s why they use Creative Commons licenses in the first place.

[This is a new project of mine inspired by some conversations on the cc-community listserv lamenting the lack of understanding among many users of Creative Commons-licensed work. The Creative Commons website has so much information on it that it can be hard to find a basic, bite-sized howto. I’m taking the material I use in my workshops, mixing it up with CC’s extensive documentation, and posting the results here. If anyone has ideas for topics they’d like me to cover, let me know. If you think I got something wrong, please let me know so I can fix it. And since the whole blog is CC-licensed, go ahead and use/adapt these however you like.]

Updated on August 22nd, 2008, at 9:23 pm

SPARC’s new Open Access teasers send a message

A couple of weeks ago Peter Suber pointed to some new “teaser cards” released by the Scholarly Communication & Academic Resources Coalition (SPARC) intended to promote Open Access among college students. The brightly colored cards are meant to be distributed wherever students hang out, “in library carrels, around the coffee shop, or around the department,” as a form of “guerrilla” marketing for Open Access.

There are six cards in all, with six different messages:

  • Access to scholarly journals can cost as much as a car, every year. Your library can’t afford it.
  • The article you couldn’t read might have earned your paper an A+. But you’ll never know.
  • While researching the newest cancer treatments for a family member, you can’t get past the abstracts.
  • Your research will continue after graduation — the same time your library card expires.
  • Our taxes funded the research you need. But you can’t read it.
  • The journal you need right now is at the library — 100 miles away.

By my count, four of the six messages could be interpreted as dissing the library. While SPARC clearly intends the message to be, “Our taxes funded the research you need. But you can’t read it because it’s locked away in a subscription database and publishers are greedy“, I think it’s just as easy to read it this way: “The article you couldn’t read might have earned your paper an A+. But you’ll never know, because your library sucks.”

It’s become accepted wisdom that librarians aren’t very good at marketing, and that if libraries are to remain relevant they need to develop better marketing strategies. But I think even the most unsavvy librarian would object to distributing fliers implying that the library does not have the resources students need. We work really hard trying to send the opposite message: “If you need something, don’t go to Google, come to us! If you can’t find what you need, ask us! We can help you get it!” Suggesting that the library does not have what students need completely defeats the purpose of our nascent marketing efforts.

That said, it’s true that rising subscription costs are forcing libraries to cut journals. It’s true that most taxpayer funded research is not available to the public. It’s true that students might write better papers if they had access to more scholarly work. I’m just not sure if students are the best audience for this message, in this form. What about faculty, who choose to publish in expensive journals? What about Congress, which is suddenly showing a lot of interest in the price of textbooks? Bringing students into the Open Access movement is a nice idea, but selling them on OA at the expense of their libraries is not going to do anybody any favors.