A publisher can rely on the licence under which a work was offered

A publisher can rely on the licence under which a work was offered

This recent US case brought by the creator of a CC licensed photograph against the publisher of an atlas which used that photograph on the cover confirms that CC licenses are enforceable and that that the court will read the flexibility built into the licenses about how attribution may be given in a way that is consistent with the spirit of the licenses.

An analysis of the case is available in a blog by Carrollogos.

In this blog we’ll provide some commentary and supporting resources for guidance on licensing and attribution. 

ShareAlike only applies to new works that are based on the licensed image

 The Court ruled that using an image licensed under the ShareAlike term to illustrate the atlas does not mean that the atlas as a whole must be released under the same ShareAlike licence. ShareAlike applies only when a user creates a new work based on the image. It was found that there was no case for copyright infringement by copying and making a derivative of the photograph in the publication of an atlas.

There was no dispute that the photo had been made available under a CC BY-SA licence. However, the plaintiff had incorrectly interpreted the “SA” licence condition to mean that re-use of the photograph in an atlas created a derivative work, subject to the “share alike” requirement. To the plaintiff this also meant that as the photograph had been made available for free, the derivative work should have been shared alike, that is, for free.

In this case the use of the unchanged photograph with attribution was within scope of the CC BY-SA licence. The use in the atlas illustrates a collective work, not a derivative work:

Definitions of "collective work" and "derivative work" for in 1. a 1.b CC licence

The licence defines the nature of collective and derivative works

This icon indicates no commercial use

This icon indicates no commercial use is allowed

Importantly, the licence applied by the photographer did not prohibit commercial use. The other restriction on re-use discussed in this case was commercial use. A CC BY-SA licence is one of a number of CC licences, which allows commercial re-use. A non-commercial “NC” condition available in a number of licences can be selected to reserve rights to commercial exploitation.

Answers to frequently asked questions are available for licensors and licensees.

 

Interpreting the attribution requirement

The publisher of the atlas in this case was found to have given appropriate attribution to the photographer for use of his image. This was about the licence requirement to provide the Uniform Resource Identifier, the “URI”, to the licence in the attribution:

You must provide a copy of the licence or the Uniform Resource Identifier for the licence

You must provide a copy of the licence or the Uniform Resource Identifier for the licence in your attribution

The plaintiff contended that a link to the licence was not included in the attribution:

The court found that the publisher had “complied with the technical terms of the license under which the plaintiff published the work” Photo attribution: "Photo: Swain's Lock, Montgomery Co., MD Photographer: Carly Lesser & Art Draggles, Creative Commons [sic], CC-BY-SA2.0"

The court found that the publisher had “complied with the technical terms of the license under which the plaintiff published the work”

The Court relied on a definition of URI provided by Tim Berners-Lee that identifies that a URI can be “a locator, a name, or both” URI Generic syntax at 1.1.3. So, a link or “URL” was not required to comply with attribution requirements. The attribution did include the Uniform Resource Name or “URN” which was sufficient to uniquely identify the licence.

 

Rights and obligations

The case highlights the need for creators (Licensors) and re-users (Licensees) to understand licence requirements.

Licensor

A creator can choose from a suite of licences that reserve some rights and give some rights away. These are stated in the licence conditions expressed in the legal code and deed of each licence. In this case the plaintiff believed that the commercial use of his photograph for a commercial publication exceeded the “sharealike” condition of the licence. The condition is relevant to how any re-mix is licensed. It does not put a condition on re-use of the unaltered licensed work for commercial or non-commercial purposes.

When choosing a licence to apply to a work a creator can be guided by:

Attribution is the common requirement for all CC licences. A creator can make attribution of their work easier by using a tool that creates the required attribution as well as metadata:

Licensee

A re-user can use a CC licensed object in the ways allowed by the licence. These are made clear in the licence conditions expressed in the legal code and deed of each licence.

The condition common to all CC licences is attribution. A failsafe rule to follow is: Title Author Source Licence.

Look for: