CC HowTo #4: How to use a work with a No Derivatives license

Creative Commons offers two licenses with the No Derivatives requirement: Attribution-No Derivatives (BY-ND), and Attribution-NonCommercial-No Derivatives (BY-NC-ND).

No Derivatives licenses permit people to copy and distribute a work as long as they do not change it or create derivative works. These licenses ensure that no matter how many times a work is copied and shared, the content of the copies will be the same as the original. ND licenses do not permit remixing or adaptation.

Here’s the description of No Derivatives in the human readable Commons Deed:

No Derivative Works. You may not alter, transform, or build upon this work.

Here’s the pertinent language in the legal code:

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make Adaptations.

Verbatim or unaltered copies are not derivative works or “adaptations.” They’re simply copies, and as long you comply with the other terms of the license you can make and distribute exact copies of a No Derivatives-licensed work.

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 Exception

In general, the kinds of adaptations that the No Derivatives license prohibits match the definition of derivative works in the Copyright Act, but there is an exception: Songs used in video. No Derivatives 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 No Derivatives licenses are concerned, videos that use an ND-licensed song violate the terms of the license.

Examples

Examples of adaptations as defined by the ND 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 ND 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. No Derivatives licenses do not prevent people from making fair uses of the work, which may include copying excerpts, creating parodies, and other activities that involve using the work without making an exact reproduction.
  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. No Derivatives licenses don’t rule out the possibility of making a derivative from the original, 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
How to use a work with a Share Alike license

University of Michigan Library adopts Creative Commons licenses

I am thrilled to report that the University of Michigan Library has adopted Creative Commons licenses for Library-produced content.

From the press release:

The University of Michigan Library is adopting Creative Commons Attribution-Non-Commercial licenses for all works created by the Library for which the Regents of the University of Michigan hold the copyrights. These works include bibliographies, research guides, lesson plans, and technology tutorials. The Library believes that the adoption of Creative Commons licenses is perfectly aligned with our mission, “to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge.”

Commented University Librarian Paul Courant, “Using Creative Commons licenses is another way the University Library can act on its commitment to the public good. By marking our copyrighted content as available for reuse, we offer the University community and the public a rich set of educational resources free from traditional permissions barriers.”

It is a proud week to be a Michigan librarian (see also this announcement about the new Hathi Trust shared digital repository, and this one about our shiny new Espresso Book Machine). It’s amazing to work in a library that has strongly committed to innovation without losing sight of a core value system centered around public service. I feel very lucky. Go blue!

NIH appears to be enforcing the Public Access Policy

One of the big questions that kept coming up about the NIH Public Access Policy was, “But how will they enforce it?”

The answer appears to be, “With gentle email reminders.”

A faculty member at the University of Michigan recently received this message (name and article titles removed to protect the grantee’s privacy):

Subject: Public Access Compliance

Dear Principal Investigator,

Your recent progress report/competing continuation submission identified papers that have resulted from your NIH award. It appears that the following papers have not yet been submitted for upload to PubMed Central and may be out of compliance with the NIH Public Access Policy:

[Article titles removed]

The NIH Public Access Policy requires scientists to submit final peer-reviewed manuscripts that result from direct costs funded by NIH, and that are accepted for publication on or after April 7, 2008, to the digital archive PubMed Central. Compliance with the NIH Public Access Policy is a legal requirement (Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, Division G, Title II, Section 218) and a term and condition of your award. If a grantee has failed to materially comply with the terms and conditions of award, NIH may suspend the grant, pending corrective action, or may terminate the grant for cause (per 45 CFR 74.61, 74.62, and 92.43).

You do not need to resubmit your progress report. Simply ensure the following:

1) If the manuscript(s) were accepted for publication on or after April 7, 2008, please enter these documents into PubMed Central as soon as possible. Information on how to submit manuscripts can be found at http://publicaccess.nih.gov/submit_process.htm

2) Reply to all on to this email with confirmation that your manuscript(s) are in compliance with the NIH Public Access Policy. You can confirm compliance by including the PubMed Central reference number (PMCID) in the reply email. Please see this Frequently Asked Question (FAQ) http://publicaccess.nih.gov/ FAQ.htm#c6 if you have questions about how to use PMCIDs, or this FAQ http://publicaccess.nih.gov/FAQ.htm#c7 if the PMCID has not been assigned yet.

You should include the PMCID when citing these papers in any subsequent application, proposal or report. Please see Guide Notice NOT-OD-08-119 http://grants.nih.gov/grants/guide/notice- files/NOT-OD-08-119.html for more information and alternatives.

If you have any questions about the Policy, please check the NIH Public Access Website http://publicaccess.nih.gov/ or send a note to PublicAccess@nih.gov. You may also contact the NIH Program Official at the Institute to which your application has been assigned.

Making published research funded by NIH accessible to everyone, including health care providers, patients, educators and scientists, helps advance science and improve human health. We all have a role to play in this goal, and we appreciate your efforts to make the NIH Public Access Policy successful.

Sincerely,
THE NINDS PUBLIC ACCESS COMPLIANCE TEAM

This is good news. It means they’re paying attention over there at the NIH, and also recognizing that this new grant requirement is confusing and researchers may require some additional guidance. I wonder what the second reminder will look like (not that anyone at UM would ever need one).