- A. Preliminary remark: No restriction on acts not requiring consent
- B. "Under the terms of this Public Licence"
- C. Scope of the rights of use granted
- D. Territorial scope: Worldwide licence
- E. Non-exclusive licence
- F. No sublicensability
- G. Irrevocability
- H. Gratuitousness
Literature: Thomas Dreier, Creative Commons, Science Commons – A paradigm shift in copyright law?, in: FS Schricker, 2005, 283; Sebastian Horlacher, Creative Commons Licences 4.0 – A (copyright) legal consideration based on open educational resources in higher education, 2020; Till Kreutzer, German UNESCO Commission e. V. (ed.), Open Content – A Practical Guide to the Use of Creative Commons Licences, 2nd edition 2016; Sebastian Krujatz, Open Access, 2012; Anne Lauber-Rönsberg, Disponible Access Rules? – Open Access as a Test Case for the Relationship between Individual, Collective and Legal Permissions for Use, ZUM 2023, 420; Catharina Maracke, Creative Commons International: The International License Porting Project – Origins, Experiences, and Challenges, jipitec 2010, 4 – 18; Nils Rauer/Diana Ettig, Creative Commons & Co. – Legal issues surrounding the use of (free) image databases, WRP 2015, 153 – 157; Robert Staats, Open Access and VG WORT – Do they go together?, in: Ius Vivum: Art – International Affairs – Personality – Festschrift for Haimo Schack on his 70th birthday, 2022, 353; Tobias Strobel, So content with Open Content – Satisfaction thanks to open content licences?, MMR 2003, 778; Gregor Völtz, Creative Commons Licences in the light of consumer protection – More bad than consumer-friendly?, VuR 2016, 169; Kristina Wagner, Current possibilities and legal problems of Creative Commons licence models, MMR 2017, 216.
1 The modular system of the CCPL enables the licensor to choose between the individual licence modules BY, NC, ND and SA to configure the granted rights of use to be more or less comprehensive. Regardless of which licence modules are chosen in a specific case, section 2.a.1 stipulates that the granted rights of use in each case comprise the non-variable core rights of reproduction and distribution of the licensed material (Section 2.a.1.A) and the right to create and reproduce modified material (Section 2.a.1.B). If the licensor has not imposed any restrictions through the ND (No Derivatives) licence module, then the rights of use granted also include the right to distribute the modified material. If the licensor chooses the NC licence element, then all rights of use granted are restricted to non-commercial purposes (margin note 21).
2 The rights of use granted permit use worldwide. The licence is irrevocable (para. 25) and free of charge (para. 26). However, the comprehensive grant of rights of use is restricted by the fact that the licence is non-exclusive (para. 23) and non-sublicensable (para. 24).
3 The CCPL thus enables a comprehensive grant of rights of use. This is in line with the purpose of Creative Commons licences, namely that CC-licensed works, despite their copyright protection, should be available for use by the general public as freely as possible.
A. Preliminary remark: No restriction on acts not requiring consent
4 The CCPL is not intended to contractually restrict uses that are exempt by law, as Section 8.a clearly states . If the intended use does not interfere with the exclusive rights of the rights holder, but is already permitted without consent under the legal concept, then the scope of any grants of rights of use is no longer relevant. In this case, the use is permissible anyway. The examination of whether an exclusive right in the form of a copyright or ancillary copyright exists and whether the use is legally permitted must be carried out in accordance with the applicable national law. Which law this is is determined by the rules of international private law (see VorCCPL Rn. 37 ff.).
5 Therefore, no licence acquisition is required if uses relate to material that does not meet the protection requirements for a copyright or ancillary copyright. According to the conceivably broad definition of the term in Section 1.f, the CCPL understands the the term "licensed material" to mean "works of literature or art, databases or other material that the licensor has placed under this Public Licence". This also covers designs to which ancillary copyrights exist (see Section 1.f above). If, when German law is applicable, neither the protection requirements of Section 2 (1) and (2) UrhG nor the requirements for an ancillary copyright under Sections 70, 71, 72, 73, 85, 87, 87a, 87 f UrhG are met, then it is unnecessary to examine whether rights of use have been granted and what their scope is.
6 Furthermore, no licence needs to be acquired if copyright-protected materials are used but the use relates to an element of a work that is not protectable in its own right. According to established case law, artistic styles are just as unprotectable as mere information.
7 With the same objective in mind, Section 2.a.2 clarifies that the statutory exceptions and limitations take precedence over the CCPL and limits the scope of application of the CCPL insofar as Sections 44a ff. UrhG apply.
B. "Under the terms of this Public Licence"
8 The granting of rights of use to the licensee is subject to the condition that the licensee complies with the conditions set out in Section 3, which include, in particular, the obligation to name the author when selecting the BY licence element. If these conditions are not met, the rights under the CCPL automatically expire in accordance with Section 6.a.
C. Scope of the rights of use granted
9 The licensor grants the licensee the right to reproduce and share the licensed material in whole or in part, as well as to produce and reproduce modified material and, if the licensor has not selected the ND (No Derivatives) licence element – also to share the modified material. The rights of use granted relate to use in all media and formats,
10 The scope of the rights of use granted is not determined solely by the wording of the CCPL, as these are merely model contracts. Rather, the content of the contract must be determined by interpreting the specific licence agreement concluded between the parties, for which the overall circumstances of the conclusion of the contract, such as the purpose of the contract and the conclusive behaviour of the parties, are also relevant. However, the starting point is initially the wording of the agreement, which is derived from the CCPL model contracts, unless other conditions have been agreed in accordance with Section 7.1.
I. Reproduction
11 According to Section 2.a.1.A, the rights of use granted include the right to reproduce the licensed material in whole or in part. This applies to acts of use that interfere with the reproduction right under § 16 UrhG. The reproduction of works and objects protected by ancillary copyright as well as the reproduction of parts of works or other protected objects is permitted, provided that the parts are protected and their reproduction thus interferes with the exclusivity of the rights holder. If the work in question is not protected by copyright or ancillary copyright, then the act of reproduction is permitted regardless of the right of use granted. In any case, the term "reproduction" within the meaning of the CCPL includes identical reproductions. If the term is interpreted in accordance with the case law of the Federal Court of Justice
II. Distribution
12 According to Section 2.a.1.A, the CCPL also includes the right to redistribute the licensed material in whole or in part. The term "distribution", which is unknown in German copyright law, is defined in Section 1.i and refers to "making material available to the public by any means or process that requires consent under the licensed rights, such as reproduction, public display, public performance, distribution, dissemination, reproduction or adoption, and making available to the public or making available in such a way that members of the public can access the material from places and at times of their choosing". Rights of use are thus granted with regard to the right of reproduction already explicitly mentioned in the first alternative of the offence (§ 16 UrhG) as well as with regard to the right of distribution (§ 15 (1), § 17 (1) UrhG) and the right of public reproduction in accordance with § 15 (2) UrhG. Licences are also granted for uses within the scope of the right of lecture, performance and presentation (§ 19 UrhG), the right of making available to the public (§ 19a UrhG), the right of broadcasting (§ 20 ff. UrhG) and the right of reproduction by means of image and sound carriers (§ 21 UrhG) and radio broadcasts and making available to the public (§ 22 UrhG). The wording also covers the exhibition of an unpublished work of fine art or an unpublished photographic work (Section 18 UrhG), although this is likely to be of limited relevance in practice because the licensed material is usually published (Section 6 (1) UrhG) . However, one area in which CC licensing of unpublished works is common is that of estates or collections that are licensed by cultural heritage institutions or, at the instigation of cultural heritage institutions, by rights holders in order to enable the free use of the material . In view of the commitment of many cultural heritage institutions to the open paradigm, CC licences are often used there (see Handbook Part D. Cultural Heritage).
III. Creation, reproduction and distribution of modified material
13 According to Section 2.a.1.B. CCPL, the licensee is also granted the right to create and reproduce modified material . If the licence elements BY, BY-SA, BY-NC and BY-NC-SA are selected, the distribution of the modified material is also covered by the licensed acts of use. If, on the other hand, the licence element ND has been selected, the distribution of the modified material is not permitted. It should be emphasised that, contrary to a common misconception, even in this case – despite the licence module being designated as "No Derivatives" – the production and reproduction of modified material is permitted.
14 It should be noted, however, that the exploitation of modified material may not only interfere with the right of adaptation under Section 23(1) sentence 1 UrhG, but also with the moral right of integrity of the work under Section 14 UrhG. Moral rights are not licensed by the CCPL, as Section 2.b.1 Moral rights are not covered by the CCPL licence, as expressly stated in Section 2.b.1 .
15 Modified material. According to section 1.a, modified material is defined as content that "protected by copyright or similar rights and is derived from or based on the licensed material and in which the licensed material is translated, altered, rearranged, redesigned or otherwise modified in a manner that requires consent due to the copyright or similar rights of the licensor." If transformative uses are not subject to a consent requirement under Sections 15 et seq., Section 23 (1) sentence 1, Sections 44a et seq. UrhG, then these adaptations or rearrangements of pre-existing content – although not entirely convincing, but consistent with the interpretation rule in Section 8.a and the objectives of the CCPL – not only excluded from the scope of the licensed rights under Section 2.a.1.B CCPL, but also not covered by the definition of derivative works, as can be seen from the wording. No modified material within the meaning of this definition is therefore present if a new design is created and only the unprotected style of an existing work or unprotected parts are taken over, if parts of a sound recording are taken over in an unrecognisable manner ,
16 In sentence 2, section 1.a. clarifies that modified material is always present "if the licensed material is a musical work, a performance or a sound recording and is used to accompany moving images". It follows from this that the combination of a musical work with a video not only constitutes a reproduction in accordance with Section 2.a.1.A, but also falls under the creation of modified material in accordance with Section 2.a.1.B . On the other hand, according to the not uncontroversial case law of the Federal Court of Justice, the combination of a musical work with a sequence of images is generally only classified as reproduction within the meaning of Section 16 UrhG and not as adaptation within the meaning of Section 23 (1) sentence 1 UrhG.
17 Creation of modified material. Firstly, the creation of modified material is permitted. However, this first alternative has only limited significance, as the creation of an adaptation or other transformation
18 If the modified material itself constitutes a personal intellectual creation, it is eligible for copyright protection under Section 3 UrhG. This question must be assessed independently of the rights of use granted by the CCPL. 19 Reproduction of the modified material.
19 Reproduction of the modified material. Secondly, the right of use under Section 2.a.1.B permits the reproduction of the modified material created by the licensee or third parties .
20 Distribution of the modified material (unless licence element ND). Thirdly, the right of use under Section 2.a.1.B includes the distribution of the modified material. However, this does not apply if the licence module ND has been selected. The conditions under which the modified material may be distributed are set out in particular in Section 3 and include, if the BY licence module is selected, the attribution of the author's name and, if the SA (Share Alike) licence module is selected, the obligation to make the modified material available under a CCPL with the same licence or a compatible licence (see commentary under Section 3.b).
21 Commercial vs. non-commercial uses. The licence may be restricted to non-commercial uses. For the distinction between commercial and non-commercial uses, see Section 1.i Rn. 73 ff.
D. Territorial scope: Worldwide licence
22 The principle of territoriality applicable in copyright law,
E. Non-exclusive licence
23 Under the CCPL, a non-exclusive licence right is granted. In the terminology of the German Copyright Act, this is therefore a simple right of use in accordance with Section 31(2) UrhG. The restriction to the granting of a simple right of use corresponds to the CCPL's objective of enabling the widest possible distribution and use of the licensed content, as this gives the licensor the power to grant the right of use to third parties. The restriction to the granting of a simple right of use is in line with the CCPL's objective of enabling the widest possible distribution and use of the licensed content, as this allows the licensor to retain the authority to grant other licences. The simple right of use entitles the licensee to use the work in the permitted manner without use by other persons is excluded. It follows from this that the licensee cannot prohibit others from using the content. In addition, the holder of a simple right of use is not actively legitimised, i.e. in the event of a copyright infringement, they cannot take legal action against the alleged infringer in their own right, but only by way of a voluntary (see A. Enforcement of Rights, margin note 37). However, this circumstance is likely to be of little practical relevance in the case of CC licences, as the interest in prosecuting infringements is likely to lie more with the licensor than with the licensee.
F. No sublicensability
24 The rights of use granted are not sublicensable. This means that the licensee does not have the authority to permit other persons to use the content. Rather, the right of use is granted to each user directly by the licensor, see Section 2.a.5.A. This also applies to persons who receive the material from a licensee through transfer. This avoids long licence chains due to sublicensing.
G. Irrevocability
25 The CC licence agreement is irrevocable (see also Section 6 on the licence term). The same applies to the granted right of use in accordance with Section 2.1.a. This conflicts with the provision in Section 42 of the German Copyright Act (UrhG), which provides for a right of revocation due to changed conviction. If the work no longer corresponds to the author's convictions in artistic, political, scientific or other respects and he can therefore no longer be expected to exploit the work, he may revoke licences already granted. According to Section 42(2) UrhG, the right of revocation cannot be waived in advance. Furthermore, its exercise cannot be excluded. The irrevocability of the licence right provided for in Section 2.1.a is therefore one of the few clauses of the CCPL that is not compatible with German copyright law. In practice, however, the right of revocation under Section 42 UrhG is exercised extremely rarely, which may also be due to the obligation to pay compensation provided for in Section 42 (3) UrhG. If an author asserts such a right of revocation, this takes precedence over the CCPL due to its mandatory nature. The other rights of revocation provided for in the UrhG under Section 34(3) sentence 2 UrhG and Section 41 UrhG are, however, irrelevant in the context of the CCPL.
H. Gratuitousness
26 An essential element of CC licensing is the exemption from remuneration for the granting of rights of use. The exemption from licence fees is intended to enable participation in cultural and scientific life.
27 By granting rights of use free of charge, the CCPL deviates from the concept of the UrhG, which provides for a legal claim by the author to appropriate remuneration (Section 32 (1) UrhG), to further participation in the event of economic success that is not appropriately remunerated by the agreed consideration (Section 32a UrhG) and remuneration for types of use that become known later (Section 32c UrhG). These remuneration claims are mandatory for the protection of creative artists (Section 32 (3) sentence 1 UrhG) or, at least in advance, cannot be waived (Section 32a (3) sentence 1 and Section 32c (3) sentence 2 UrhG). However, in order to enable licensing as open content, the law provides for the possibility that the author may grant a simple right of use to everyone free of charge (§ 32 (3) sentence 3, § 32a (3) sentence 3 and § 32c (3) sentence 2 UrhG). This is because, within the scope of application of the CCPL and other open content licences, the author does not generally require this protection, as he voluntarily makes his work available to the general public and thus consciously waives any remuneration. As stated in the explanatory memorandum to the draft law, "in the area of such licence relationships, in which the author makes his work available to the general public free of charge, (...) there can be no breach of contractual parity to the detriment of the author, nor are any possibilities for abuse conceivable in this respect".
28 However, it is questionable whether this exception to the statutory remuneration claims can also apply if the author does not freely decide to license the content free of charge under the CCPL, but chooses open licensing only because of pressure from an exploiter who wants to circumvent the mandatory claim to reasonable remuneration. Legal literature argues that in this case, the exception of Section 32(3) sentence 3, Section 32a(3) sentence 3 and Section 32c(3) sentence 2 UrhG does not apply.
29 It is also unclear whether the provisions of Section 32a (3) sentence 3 and Section 32c (3) sentence 2 UrhG also apply if it is not the author himself but a holder of rights of use who licences materials under the CC licence. This becomes particularly relevant if content was created within the framework of an employment relationship and the employer is granted rights of use within the framework of Sections 43, 69b UrhG. The author's statutory remuneration claims may exist not only against the licensee at the first level (Section 32 (1), Section 32a (1) and Section 32c (1) UrhG), but also against licensees at further levels (Section 32a (2) and Section 32c (2) UrhG). According to their wording, the provisions of Section 32a (3) sentence 3 and Section 32c (3) sentence 2 UrhG, which exclude remuneration claims in the case of open licences, only cover the case where the author himself grants a simple right of use to everyone free of charge . However, the situation in which CC licensing only occurs at a later licensing stage is not expressly regulated.
30 Insofar as comments on this can be found in the literature, it is assumed that the author's remuneration claims remain valid if it is not the author but his contractual partner who grants everyone a simple right of use free of charge.
31 If, on the other hand, the author has not consented to the granting of further rights of use in the form of CC licences by the first licensee, then the first licensee's disposition in rem of the right of use is invalid.
32 If, in the context of his consent to further licensing, the author has not specified in detail whether this should also include CC licensing, then it depends largely on whether the declaration of intent can be interpreted in this sense, with the consequence that the author would lose the statutory remuneration claims against licensees at further stages (Section 32a (2) and Section 32c (2) UrhG). Consent may also be given tacitly.
33 There is also generally no obligation to obtain consent pursuant to Section 34 (1) sentence 2, Section 35 (1) sentence 2.
34 If the author has not given consent and the refusal of consent is not contrary to good faith, this means that CC licensing at the second level is invalid due to the lack of consent from the author. In practice, this means that a user who wishes to further exploit usage rights acquired from an author at the second stage through CC licences should obtain the express consent of the author to do so.
35 Furthermore, the question arises as to what extent the gratuitous nature of the granting of rights of use has an impact on the existence of statutory remuneration claims, in particular within the framework of the limitation provisions of Sections 54 et seq. of the German Copyright Act (UrhG). According to the prevailing opinion, this is not the case. This is because the CCPL stipulates that the contractual agreement does not apply where statutory exceptions and restrictions apply. Thus, in the case of CC licences, there is no conflict between the granting of rights of use under individual contracts and the limitation provisions. This is also in line with the spirit and purpose of CC licences, which are not intended to restrict the freedom granted by law, but on the contrary to extend it through contractual rights of use.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.a.1. Scope of the rights granted is licensed under a Creative Commons Attribution 4.0 International License.
