- A. Overview
- B. Additional or deviating conditions
- C. Technical measures
- D. Restriction on the exercise of licensed rights
- E. Subsequent recipients
- F. Version history
- G. Discussion on technological protection measures
A. Overview
68 When the Licencee distributes the Licensed Material – for example, when the Licencee publishes a Licensed Work on its website – no other or additional licence terms may be imposed, nor may subsequent effective technological protection measures be applied.
69 The clause is part of all CC licences in version 4.0 and ensures that the licence terms originally chosen by the authors are not tightened or changed to the detriment of other licensees when the material is shared. In contrast to SA licences, however, this provision only applies to the original work, not to derivative works.
70 The provision should be understood in the context that CC licences do not allow sub-licensing – i.e. licensees who pass on the work unchanged do not thereby become licensors – but rather all further recipients become licensees of the original author. Only the latter is the licensor, cf. section 2.a.5.A of the licences: "Each recipient of the licensed material automatically receives an offer from the licensor to exercise the licensed rights under the terms of this Public Licence."
B. Additional or deviating conditions
71 It is not permitted, for example, as a licensee of a CC BY-licensed work, to license the same to further licensees using the additional condition NC (i.e. CC BY-NC): This is because the choice of a more restrictive CC licence – in this case excluding commercial use – restricts the use. This also applies in the other direction: a CC BY-NC-licensed work may not be passed on under CC BY conditions because this does not comply with the authors' wish to withhold the original work from commercial use.
72 It would also be inadmissible to distribute a CC BY-SA-licensed work using the CC BY licence: in this case, subsequent licensees would not be restricted in their use of the work – they would even be granted additional rights, as they would no longer be bound by the "Share Alike" requirement. However, this creates the risk of circumventing the "Share Alike" addition.
73 In addition, additional or deviating conditions may also be included in general terms and conditions or terms of use. In this case, care must be taken to ensure that CC-licensed works are exempt from the restrictions, as a violation of the licence conditions generally results in the expiry of the rights under the licence (cf. Section 6.a).
C. Technical measures
73 Furthermore, in accordance with this provision, no effective technical protection measure may be added to a third-party work by a licensee if this would prevent the recipient of the work from exercising their rights guaranteed by the CC licence, or would restrict their ability to do so, when passing on the work.
74 The term "technical measure" is defined in Section 1, with the definition referring in particular to the WIPO Copyright Treaty; the corresponding provisions are implemented in Germany in Sections 95a to 95d of the Copyright Act (UrhG). However, the application of technical protection measures is not prohibited in all cases:
75 It is unclear whether it is sufficient to simply offer a version of the work without technical protection measures if, in a given situation, it is necessary to distribute a third-party work with protection measures in place. Such a situation may arise, for example, in the joint distribution of a CC-licensed work as part of a collection with other non-CC-licensed works on a copy-protected DVD, or when distributing software that contains and uses a CC-licensed database if the software is protected against direct access and modification by a signature key from the manufacturer ("Tivoisation"). It can be argued that it cannot be the purpose of CC licences to prevent such use of CC-licensed works in principle, as long as the recipient has the opportunity to obtain an unprotected version of the work and exercise the licensed rights (cf. however, the concept of "parallel distribution" in para. 86).
76 However, one argument against such an interpretation of the licence could be that such an approach circumvents the prohibition of technical protection measures and carries the risk that recipients will shy away from making enquiries. Furthermore, the wording of the section suffices to state that the exercise of rights is restricted – it does not require that the exercise of rights be prevented. However, a restriction may also lie in the necessity However, a restriction may also lie in the necessity of making an enquiry. There is a risk of delays, and it is also conceivable that the person from whom the recipient obtains the work may no longer be available or traceable. The latter argument can be countered by the fact that, under certain circumstances, the licensor can be contacted; however, there is also a risk that the licensor may be untraceable. The Creative Commons organisation has long taken an explicit stance against the use of digital rights management and technical protection measures.
77 Furthermore, 2.a.5.B could be interpreted to mean that not only is the application of effective technical protection measures inadmissible, but also any application of obstacles that restrict the exercise of the licensed rights . However, even conversion to another format that makes access to the licensed material more difficult or makes the material available only for certain platforms is considered permissible and therefore not a violation of the local regulation.
D. Restriction on the exercise of licensed rights
78 The addition of "insofar as this restricts the exercise of the licensed rights by recipients of the licensed material" suggests that changes to the licence terms and the application of effective technical protection measures may be permissible in principle – provided that they preserve the character of the chosen CC licence and do not restrict subsequent recipients are not restricted in the exercise of their licensed rights. However, it should be noted that any change to the CC licence text used when using the CC trademarks constitutes a violation of the guidelines of Creative Commons (see Annex).
79 It would be inadmissible, for example, to use additional licence conditions to restrict the context in which the work may be used, such as subsequently adding the condition NC (non-commercial) to a CC BY-SA-licensed work, because this would prohibit subsequent recipients from using the work in a commercial context.
80 Adding effective copy protection also restricts the exercise of the licensed rights, as does an "expiry date" after which a file can no longer be opened, for example by means of digital rights management.
E. Subsequent recipients
Since CC licences do not allow sublicensing, subsequent recipients are either persons who find the (unmodified) work (example: author A publishes their work under CC BY, user B copies and publishes the work on their own website, user C visits B's website and wants to copy/edit A's work, etc.) or persons who obtain a licence for a derivative work (example: B edits A's work and publishes it on his website). Derivative works may be licensed under terms that differ from those of the original work, with the exception of works licensed under the SA condition.
F. Version history
82 In version 2.0, the relevant provision regarding the inadmissibility of different terms was found in sections 4.a and 8.e:
"You may not offer or impose any terms on the Work that alter or restrict the terms of this Licence or the recipients' exercise of the rights granted hereunder." (CC BY 2.0, section 4.a)
"This Licence constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This Licence may not be modified without the mutual written agreement of the Licensor and You." ( CC BY 2.0, Section 8.e)
83 The prohibition on the application of technological protection measures was also regulated in Section 4.a:
"You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this Licence Agreement."
84 In version 3.0, the corresponding provision regarding the inadmissibility of deviating conditions was found in Section 4.a and Section 8.e:
"You may not offer or impose any terms on the Work that restrict the terms of this Licence or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the Licence." (CC BY 3.0, Section 4.a)
"This Licence constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This Licence may not be modified without the mutual written agreement of the Licensor and You." ( CC BY 3.0, Section 8.e)
85 The prohibition on the application of technical protection measures was also regulated in Section 4.a:
"When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the Licence."
G. Discussion on technological protection measures
86 In the course of revising the CC licences, there was considerable discussion about the prohibition on imposing technological measures, particularly prior to the publication of version 3.0. Opponents of the prohibition argued that it would effectively restrict the licensed rights of licensees because it would prevent licensees from distributing the work in a format of their choice or, for example, from incorporating it into a Sony Playstation game or other platforms in a manner that complies with the licence.
87 Even before the publication of version 4 of the licences, the issue was discussed, but once again a corresponding amendment to the licence text was rejected.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.a.5.B. Subsequent recipients B: No restrictions on subsequent recipients is licensed under a Creative Commons Attribution 4.0 International License.
