A. Overview
36 The clause stipulates that the licence does not apply and licensees do not have to comply with the terms and conditions set out in the CCPL if, in the specific situation of use, legal exceptions and restrictions (for the definition of the two terms, see section 1.e) apply. The CCPL thus gives priority to the limitations regulated in statutory copyright law pursuant to Sections 44a et seq. of the German Copyright Act (UrhG), and therefore does not interfere with their structure.
37 In connection with legal freedoms, it is also worth mentioning the interpretation rule in Section 8.1, according to which the CCPL does not impose conditions on use that is permissible without a CC licence. The provision there applies, for example, to the public domain The provision there applies, for example, to the public domain of content, such as when content that is not protected by copyright is (supposedly) placed under a CC licence.
38 The fate of statutory remuneration claims for CC-licensed content is dealt with in Section 2.b.3.
39 CC licences were intended from the outset as "fair use plus" and thus as a promise of freedoms that licensors grant in addition to the freedoms guaranteed by law.
B. Clarification
40 With the wording "It should be clarified", the CCPL indicates that statutory exceptions and limitations should take precedence by way of interpretation of the licence agreement. This will often This will often also correspond to the legal situation, according to which the statutory restrictions can only be excluded or restricted to a limited extent by contract: On the one hand, copyright law expressly declares some restrictions to be indispensable (e.g. Section 69 g (2) UrhG) or contractual restrictions unenforceable (§ 60 g (1) UrhG). On the other hand, restrictions on statutory permissions imposed by general terms and conditions are invalid if the restriction is supported by an overriding public interest.
41 Conversely, the CCPL does not attempt to make such uses, which are already permitted by law, exempt from authorisation by contract. Such contractual permissions generally have no independent legal effect anyway. [3] 42
42 In the case of other statutory permissions, according to the intention of the legislator, there should also be room for contractual provisions even where a statutory permission exists . An example of this would be Sections 60a ff. UrhG. The legislative materials relating to the UrhWissG indicate that licences should continue to be permissible as long as they do not restrict the user's statutory rights.
"The statutory permissions (copyright restrictions) should, in the interests of education and science, grant legally guaranteed basic access to copyright-protected content. They thus supplement use on a licence basis, for example of online offerings or through the purchase of printed books. Against this background, licensing in the area of limitations is also not invalid in principle, but may not restrict the acts of use permitted by law (Section 60 g (1) UrhG)."
43 In such cases, it must be examined on a case-by-case basis whether use is based on statutory permission or on the CC licence. Since use based on the CC licence requires mandatory labelling, this distinction is also possible in each case.
C. Consequences of non-applicability
44 The fact that the licence is not applicable in the case of legally permitted uses leads in some cases to greater freedoms than would be the case under the licence:
I. BY - Attribution
45 There are cases of legally permitted uses in which the requirements for attribution and the inclusion of the licence notice do not have to be observed. For example, attribution as a condition of any CC licence variant is not mandatory in the case of use that falls under the pastiche permission under Section 51a of the German Copyright Act (UrhG). This is because this restriction does not require the author to be named. In this respect, fewer conditions apply within the scope of legally permitted use than under the CCPL. Legal restrictions also waive the obligation to cite sources in some cases where this is not practicable (e.g. in the context of text and data mining under Sections 44b and 60d UrhG); the CCPL does not modify anything here either. Finally, in the case of freedom of quotation under Section 51 UrhG, separate requirements apply to the indication of sources in accordance with Section 63 UrhG; in this case, only these requirements must be observed and not the attribution requirement under the CCPL.
46 At the same time, it may still be advisable to include the licence notice in the cases mentioned. Otherwise, there would be a risk that subsequent uses that depend on a CC licence would not take place. An example would be the citation of an image as evidence for a statement in a scientific treatise that is CC BY-licensed. According to the legal requirements, the quotation would only need to include the source reference in accordance with Section 63 of the German Copyright Act (UrhG), but no licence notice. Adding the licence notice then makes it clear that use of the image outside the context of the quotation is also permitted under the terms of the CC BY licence.
II. NC - Non-Commercial
47 If a restriction also permits the use of materials for commercial purposes, the prohibition of commercial use under the CC licence (see section 1.i) does not preclude this, for example in the case of text and data mining within the scope of Section 44b UrhG, in reporting on current events (Section 50 UrhG), within the scope of freedom of quotation (Section 51 UrhG) and pastiche permission (Section 51a UrhG). However, many other restrictions (such as permissions to use materials in teaching) are themselves limited to non-commercial purposes. In this case, it must be examined on a case-by-case basis whether the specific understanding of "non-commercial" in statutory copyright law corresponds to the understanding of "non-commercial" assumed by the CC licence (see section 1.i on the Non-Commercial module).
III. No Derivatives
48 Content that is subject to a CC licence with a prohibition on adaptation ND – No Derivatives may be published despite adaptation, provided that this is permitted by law. One example is the statutory pastiche permission under Section 51a of the German Copyright Act (UrhG), under which the copyright restriction regime allows adaptations without consent (such cases were previously discussed under free use under Section 24 UrhG, old version
IV. SA - Share Alike
49 Among other things, within the scope of the pastiche permission pursuant to Section 51a UrhG, statutory copyright law grants the right to publicly reproduce adaptations of works. If a work is now licensed under a CC licence variant with the copyleft condition SA – Share Alike, any distribution of derivative works of the licensed work would be subject to the condition that the resulting adaptation be placed under an equivalent licence. In the case of legally permitted adaptations, the copyleft condition of the SA – Share Alike licence variants does not apply. If a work licensed under CC with a copyleft condition has been incorporated into a pastiche within the meaning of Section 51a UrhG, the author of the pastiche is free to decide whether or not to freely license the resulting pastiche .
50If, on the other hand, a use exceeds the scope permitted by law, the licensed material may be used on the basis of the CC licence – provided, of course, that the licence conditions are complied with.
D. Other constellations
51 The CC licence also has no effect where copyright does not apply. This applies to content that is not protected because the conditions for protection are not met or because the exploitation rights do not apply, for example in the case of pure enjoyment of the work. In such cases, according to Section 8.a, the CC licence shall neither state "nor be interpreted [...] as reducing, limiting, restricting or imposing conditions on such uses of the licensed material that are permissible without permission under this Public Licence". While the present clause is applicable within the framework of the exceptions and limitations of copyright law, Section 8 applies to content and acts of use that are already outside the scope of copyright protection .
52 In cases where there is uncertainty as to whether a statutory permission is applicable, CC licensing can certainly provide clarity, because the licensed material can at least be used under the CC licence.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.a.2. Exceptions and Limitations is licensed under a Creative Commons Attribution 4.0 International License.
