56 The definition of "Licensed Rights" is constructed as a collection point, while the actual naming of the licensed rights can largely be found elsewhere in the licence text: The "rights granted under the conditions of this Public Licence" are distributed among the definitions of copyright and similar rights in section 1.c and of database maker rights in section 1.j, as well as section 2.a.1 "Licence Grant", section 2.b "Other Rights" (constructed as an exception), and the special provisions in section 4 "Sui Generis Database Rights". This structure is intended to improve readability for non-lawyers, rather than working in a legalistic manner with (possibly even repetitive) long lists of permitted uses or long text sections before the bracket. Up to and including version 3.0, the licensed rights were also named directly in the licence grant, but did not have their own anchor point in the definition section.
57 Sentence 1 of the definition sounds tautological at first, but then, starting with the relative clause, contains at least a linguistic restriction of its own. However, the extent to which this has any relevant effect is questionable:
58 The word "such" and the reference to the very broad copyright and similar rights in section 1.c make it clear that the intention here is not to restrict the types of rights. Rather, the point is that the CCPL should limit its permissions to what is necessary in each specific context. In other words, nothing should be permitted in advance that is not part of the specific case of use and for which permission is therefore not required. However, the practical relevance of this "flexible" approach to permissions is likely to be low, as the licence permission is automatically and immediately extended as soon as further licence-compliant uses or aspects are added. Furthermore, it is highly questionable whether this definition can influence the basic rule in reverse – or even should influence it – according to which once granted CC permissions remain irrevocably valid until the end of the term of protection of the content (cf. section 6.a sentence 1). If it has no influence on this, permissions can only be added, never removed retrospectively, and "breathing" would only occur as inhalation to stay with the metaphor, whereas there can be no exhalation. Specific constellations in which this would ultimately benefit the licensor or licensee are not apparent.
59 The reference at the very end to the requirement of authorisation by the licensor is, at least in this respect, purely declaratory, as there is already no acquisition of rights of use in good faith under the law. Under German law, this is the case for copyright and related rights.
Creative Commons License
Open Access Kommentar, Commentary on Section 1.g./f./i. Licensed rights is licensed under a Creative Commons Attribution 4.0 International License.
