- A. Overview
- B. No granting of personal rights by the CCPL
- C. Statutory law
- D. Other restrictions on rights of use in rem
- E. Removal of the name
- F. Case variants
- G. Claiming or giving the impression
- H. Terms and conditions law
- I. Legal consequences, enforcement, relationship to other claims
- J. Version history
A. Overview
91 According to the "no endorsement" clause, a licensee may not claim that the licensor supports the use of the material. Licensees may therefore not imply that licensors sponsor them or are affiliated with them. The clause thus prohibits the licensee from appropriating the licensor, serves its integrity and at the same time states that although the CCPL is a copyright licence with extensive rights, CC licensing does not expose the material to arbitrariness. On the other hand , the clause is not a means of taking action against any use that is unwelcome to the licensor. Nor can a licensee be deprived of their right of use simply because the licensee is unpopular with the licensor.
92 In practice with CC licences, concerns are sometimes expressed that CC-licensed materials could be used in an undesirable context, such as on a political party's election poster. The fact that licensors may dislike certain uses of their content is inherent in free licensing and the associated relinquishment of control. However, this is not specific to the CC model. Such cases are conceivable in all licensing models in which contractual partners are not selected individually, but rather use is permitted on the basis of abstract conditions relating to the subject matter or context (image databases, sound libraries, etc.) – including, for example, in the case of rights management contractual partners are not selected individually, but rather use is permitted on the basis of abstract conditions relating to the subject matter or context (image databases, sound libraries, etc.) – including, for example, the exercise of rights by collecting societies, which are also subject to a contractual obligation .
93 In Germany, moral rights, in particular protection against distortion pursuant to Section 14 of the Copyright Act (UrhG), provide a certain degree of protection against appropriation.
94 The right of use granted by the CCPL is comprehensive in terms of content (every medium, every purpose, etc., see Section 2.a). With the requirement
95 Violation of this requirement constitutes aninfringement under the CCPL. It must be interpreted in conjunction with the provisions on personal rights and attribution (see sections 2.b.1 and 3.a).
B. No granting of personal rights by the CCPL
96 The appropriations covered by the clause are often also relevant to personal rights. In this context, reference should be made to Section 2.b.1 of the CCPL. This stipulates that, within the framework of CC licensing, no moral rights or other personal rights are granted, but that the licensor merely waives the assertion and enforcement of (copyright) personal rights to the extent necessary for the unhindered exercise of the granted rights of use . This is to be understood as a separation in rem of moral rights from economic rights of use, which is unobjectionable under German copyright law within the framework of Section 31 (1) UrhG .
97 The separation of moral rights from economic rights of use in the CCPL raises the question of the extent to whichthe requirement of content indifference hasits own regulatory content. This can be addressed by taking a closer look at the exclusion of moral rights from Section 2.b.1. There, the exclusion of personal rights is relativised by waiving their enforcement "to the extent necessary for your exercise of the licensed rights". The requirement of content indifference makes it clear that this waiver does not allow the licensor to take advantage.
98 The provisions thus complement each other on the one hand and coexist on the other where they regulate different factual issues.
C. Statutory law
99 Appropriation can also be challenged with the help of statutory law. The quasi-negatory injunction claim arising from personality rights may be considered. The scope of application of the clause may also extend beyond personality rights. In the case of unauthorised appropriation, In the case of unauthorised appropriation, further legal claims arising from trademark and competition law, enrichment law and copyright protection against distortion may also be considered. Such claims are not affected by the clause; rather, it will often be congruent with the legal situation (this is also assumed by the version wiki
D. Other restrictions on rights of use in rem
100 The fact that the clause can be particularly relevant in the context of usage constellations such as advertising or campaigning may raise the question of whether it excludes individual types of use from the licence grant . German copyright law allows for restrictions in rem at the level of the granted right of use pursuant to Section 31 (1) UrhG. This presupposes that a type of use is sufficiently clearly definable, economically and technically uniform and appears to be independent.
101 The principle of content indifference therefore, in interaction with clause 2.b.1. excludes moral rights from the otherwise comprehensive rights of use (i.e. leaves it at the economic rights of use) and constitutes a separate infringement with specific case groups of unauthorised appropriation, which is independent and detached from the granting of the licence.
E. Removal of the name
102 Related to the requirement of content indifference is the licensor's option to demand that the licensee remove their name (see section 3.a.3). In this way, the CCPL already takes into account the fact that theremay be uses with which a licensor does not wish to be associated and ultimately regulates the situation in the same way as Section 13 UrhG does with the negative right of attribution
103 A licensee cannot subsequently "remedy" the infringement contained in an appropriation unilaterally by removing the name. The only thing that matters is whether, against the background of the requested and actual attribution, the use had an appropriating character or not.
F. Case variants
104 In view of the nature of open licences, a violation of the principle of indifference to content can only be assumed under narrow conditions.
105 Dictionaries define the word indifference as indifference or lack of interest; synonyms are apathy, disinterest, insensitivity. The English word endorsement, on the other hand, means support, approval, agreement and is often used in the context of a party or politician being supported by someone, or, for example, an artist being provided with products from a manufacturer with whom they have an endorsement deal.
106 The requirement of indifference in terms of content describes the handling of an objectively observable event (cf. also the wording "give the impression") in which the licensee attributes support to the licensor .
107 The clause prohibits the licensee from claiming or conclusively giving the impression that the licensee or their use of the licensed material is sponsored, approved or officially recognised by the licensor or the attribution recipient, or is otherwise qualified in such a way that the licensor is aware of this specific licensee or its use and has granted the rights specifically for this purpose. Instead, it must remain apparent at all times that the use is based on a public licence and is therefore offered to the general public regardless of the licensor's specific knowledge of the licensee and its specific use.
108 If, in exceptional cases, there is indeed an explicit or implied approval of the use or of the licensee by the licensor, the clause must be deemed to be waived with regard to the licensee in question licensee and is, in substance, an individual extension of the scope of freedoms otherwise permitted by the CCPL (see section 8.c).
109 Addressees and claimants. The requirement of substantive indifference is directed at the CCPL "you" and thus at the licensee, i.e. anyone who uses the material in a manner that requires permission from the rights holder and through which the licence agreement is concluded ("you" within the meaning of the CCPL, see Section 1.k).
110 The licensor and "attribution recipients" within the meaning of Section 3.a.1.A.i. may assert the infringement. Attribution recipients ("others designated to receive attribution") are those who are part of the attribution. In the case of a commissioned In the case of a commissioned photograph, for example, this may also be an organisation that had the material created and is named in the licence notice (e.g. as "[photographer]/institution"). This does not include third parties whose personal or other rights are infringed by unauthorised appropriation. This means that the clause is not an instrument for all conceivably affected rights, such as those of persons depicted in CC-licensed photos. Such cases, such as the commercial appropriation of celebrities without their consent, must be resolved through legal claims
111 Variants of appropriation: Being connected with, promoted, approved or officially recognised. The four variants of appropriation are independent and without any catch-all provision:
112 The licensor/attribution recipient is connected with the licensee if there is a relationship between the two parties. This clearly does not refer to the connection represented by the licence agreement itself. Otherwise, the licence text would contain an internal contradiction. Rather, it refers to connections beyond these fundamental, i.e. qualified, relationships between the licensor and the licensee in particular, which is the subject of the dispute. These can be business relationships or cooperation in any form.
113 The licensee or the use of the material is sponsored if the licensor provides the licensee with financial or material resources for the use.
114 The use or the licensee is endorsed if the licensor expresses its approval of the use or the licensee, considers it to be correct, agrees with the use or the licensee, or otherwise approves or affirms it.
115 A use or licensee is granted official status by the licensor through an award in which the recognition is expressed by a relevant formulation or sign.
G. Claiming or giving the impression
116 Support must be claimed or the licensee must give the impression of support. Mere use in the sense of copyright exploitation (reproduction and distribution) is certainly not sufficient. Because it is in the nature of things that licensors approve the use of CC-licensed material by any individual as part of the general public, the "endorsement" requires an excessive communicative element. In connection with certain purposes of use (e.g. advertising context), this may occur with a higher , but it must always be positive. There must be at least an implicit assertion for one of the four case variants by the licensee. Several factors must be taken into account here:
the purpose or context of use (e.g. advertising). However, this only has indicative value (see above), i.e. it does not in itself constitute a violation of the clause. Rather, the fact remains that the CCPL always permits uses regardless of their purpose (apart from the restriction to non-commercial use by NC – Non Commercial);
the general perception of the public or industry practice with regard to the context of use and type of material; for example, in political debates, the naming of names in accordance with BY can be understood as support for the content;
Exploitation of the (suggestive) expressiveness of the material by unfairly linking it to the licensee's own statement: The impression is created that, based on the content of a piece of content, a licensor would also agree with further content statements made by a licensee. An example of this would be the visual impact of a photograph showing the misery of a refugee camp and the statement by a right-wing party that "we do not want this misery here", or an image of violent protests with the claim that the state is under threat;
the openness of the material for the licensee's own communication. For example, in the case of a freely licensed comic with empty speech bubbles, it is in the nature of the material that there is room for one's own communication. The same applies to CC-licensed music samples that are placed in the context of specific lyrics by the licensee. In these cases, nothing is "attributed" to the material or the licensor .
117 In the context of memes that fall under the pastiche permission pursuant to Section 51a UrhG, the requirement of content indifference, like the entire licence, does not apply (see Section 1.a para. 20).
H. Terms and conditions law
118 Any doubts in interpretation are to the detriment of the CC licensor, Section 305c (2) BGB. This also leads to a narrow interpretation of the requirement of content indifference, which, however, cannot affect the legal possibilities of moral rights to defend against appropriation .
I. Legal consequences, enforcement, relationship to other claims
119 The legal consequence of a breach of the clause is the loss of rights of use in accordance with Section 6, because the breach constitutes a resolutory condition within the meaning of Section 158 (2) BGB (see VorCCPL margin note 18). In addition, legal claims are conceivable. The licensor bears the burden of proof for the violation of the requirement of content indifference. However, the licensor may also agree to an appropriation (cf. Section 8.c).
J. Version history
120 The clause first appeared in version 3.0 of the CCPL. In both the generic and ported versions, it was located in section 4 ("Conditions"/"Restrictions"), now under "Licence Grant". According to the CC version wiki, this was an explicit no endorsement clause, whereas for version 4.0, contrary to the present commentary, the following applies: "In version 4.0, this clause is expressed as a limitation on the rights granted by the licensor."
Creative Commons License
Open Access Kommentar, Commentary on Section 2.a.6. Indifference to content is licensed under a Creative Commons Attribution 4.0 International License.
