- A. Overview
- B. Limits of the waiver of enforcement
- C. Moral rights
- D. Data protection and personal rights
- E. Version history
A. Overview
121 The first half of the clause serves to clarify and distinguish between moral rights and other personal rights such as the rights to data protection and privacy (here translated from English as "privacy"). These are not co-licensed and exist alongside the CCPL. Thus, the CCPL does not constitute consent within the meaning of data protection or personal rights law. The CCPL also cannot transfer the core of moral rights.
122 Nevertheless, the use of CC-licensed material is regularly associated with the processing of personal data, and CC-licensed material often affects personal rights, such as photos depicting people, texts mentioning other people, or the mention of the licensor. Two different constellations must be considered here. On the one hand, there are (copyright) personal rights On the one hand, there are (copyright) moral rights and data protection issues that affect the licensor itself, while on the other hand, the aforementioned rights are also relevant for persons depicted in the material. In the second scenario in particular, it is important to observe the requirements of other areas of law, such as personal rights and data protection law.
123 The second half of the clause makes it clear that the licensor waives the rights mentioned in the first half of the clause to the extent that this is necessary and possible for the "exercise of the licensed rights", but not beyond that. The purpose of the clause, which is formulated in the same way in every licence variant, is to curb contradictory behaviour between the granting of licences and copyright/personal rights and to avoid self-contradictions. Once released, the licensor should not be able to prevent every unpopular use. Nevertheless, there are limits to the waiver that must be observed.
124 The CCPL is a copyright licence. As such, it does not go beyond the granting of rights of use within the meaning of Section 31 of the German Copyright Act (UrhG) (see Section 2.a). However, the use of licensed materials may affect (copyright) moral rights, in particular when fulfilling the attribution requirement (BY).Data protection and personal rights also play a role in the case of persons depicted in the material.
B. Limits of the waiver of enforcement
125 The rights referred to in the clause relate to moral rights, general personality rights, data protection and the right to privacy. The licensor shall waive their enforcement under the CCPL to the extent that this is necessary and possible for the "exercise of the licensed rights", but not beyond that. The licensor therefore waives the enforcement of these rights in favour of the use of the licensed material, but only to the extent necessary and possible. It should no longer be necessary to waive the exercise of the rights if it goes beyond what is necessary for the use of the material, e.g. contains more personal data than necessary. The limits of the possible waiver are based on the rights specified in the clause and are to be assessed differently in some cases .
126 However, all of the rights mentioned are limited by legal requirements (see section 2.a.6 margin note 96), which form the framework of what is "possible" as specified in the clause. These may arise, for example, from the Copyright Act, data protection and personal rights requirements or the rights of third parties. Examples would be a claim for injunctive relief in the event of uses that violate personal rights or data protection laws, or criminal law (e.g. defamation), other data protection or personal rights issues (e.g. damage to reputation), which form the limits of a waiver. The "right to be forgotten"could also come into play , i.e. the right to erasure of personal data (Art. 17 GDPR and the associated case law) or data protection and privacy implications for third parties when using freely licensed material. Even the indispensable core of moral rights cannot be waived by the licensor (see CC0 Rn. 18).
127 The CC licences themselves also provide for the possibility of imposing restrictions on the use of the licensed material if it conflicts with the interests of the licensor (even retrospectively). This possibility is regulated in Section 3.a.3 and Section 2.a.6. For example, information such as the name must be removedfrom the (freely) licensed material – insofar as this is reasonably practicable.
128 The waiver clause must therefore also be read in the context of other provisions such as the requirement of content indifference ("no endorsement", section 2.a.6) and the attribution requirements, which do not allow the licensor to be completely appropriated (section 2.a.6).
129 Although the clause in its last half-sentence regulates the waiver of rights or their enforcement insofar as this is "necessary and possible" for the exercise of the licensed rights, this waiver is limited by legal requirements, provisions of the CCPL itself (requirement of content indifference) and the rights of others.
130 Since the limits of a possible waiver are determined by the rights specified in the clause, there are different circumstances to be assessed depending on the right concerned, which should be briefly mentioned here. C.
C. Moral rights
131 Insofar as the enforcement of moral rights is to be waived, these relate to the right of first publication (Section 12 UrhG), the right to be named (Section 13 UrhG) and protection against distortion (Section 14 UrhG). The clause naturally plays no role in the prohibition of adaptation (ND – No Derivatives): if no adaptation is permitted, distortions of the work (§ 14 UrhG) are difficult to imagine. If the licensor wishes to permit adaptations, the appropriate licence must be selected. Since the core of moral rights cannot be waived, this clause is not applicable in this context (see CC0 Rn. 18).
132 Specifically, the following moral rights may be waived: the (first) publication right (Section 12 UrhG), the right to attribution (Section 13 UrhG) and protection against distortion (Section 14 UrhG).
133 The CC licence holder will rarely exercise the right of first publication. Should this nevertheless be the case, this right is likely to be granted in advance through appropriate contractual agreements, so that the waiver provision does not apply.
134 The right to attribution pursuant to Section 13 UrhG "gives the authors the right to determine whether the work is to be provided with an author designation and which designation is to be used: the real name, a pseudonym or the waiver of attribution".
135 Relevant to the waiver of protection against distortion appear to be primarily unwelcome uses and, where applicable, uses not considered by the licensor at the time the licence was granted, e.g. a CC-licensed landscape photo on an election poster not favoured by the licensor. Case law on protection against distortion under Section 14 UrhG
136 Further limits of distortion with which the licensor does not have to comply are set out in the CCPL itself in Section 2.a.6 in the clause on content indifference (no endorsement) and also arise from the indispensable core of moral rights (see CC0 Rn. 18). What constitutes this indispensable core has not been conclusively clarified.
137 In addition, in an age of rapid change in data- and AI-supported applications, which may also affect CC-licensed materials, there are circumstances that are unpredictable for licensors . After release via CC0, the material may also be used for previously unknown future types of use and future media formats (see CC0 Rn. 8). This very extensive granting of such a free, simple right of use for unknown types of use is not subject to the written form requirement for open content
138 In addition to the indispensable core of moral rights protected by the UrhG, the CCPL also provides protection against appropriation with its clause on content indifference (no endorsement). However, this clause is probably not as far-reaching in its understanding of appropriation However, this clause is probably not as broad in its understanding of appropriation as the moral rights protection against distortion as standardised in the UrhG and specified in case law in Germany.
D. Data protection and personal rights
139 Data protection and personal rights can be relevant in two constellations. Firstly, this concerns the licensor themselves, whose name or pseudonym may be mentioned in the licence notice and whose personal rights are expressed in the licensed material. Secondly, the material itself may contain personal data or relate to aspects relevant to personal rights.
Data protection/personal rights for licensors
140 All CC licence variants require the licensor to be named in accordance with their specifications (Section 3.a). The naming of the licensor is therefore part of the licence agreement. This can also take the form ofa pseudonym. However, an institution or other entity may also be specified. If the information is provided anonymously, data protection issues do not apply. Otherwise, If the information is provided anonymously, data protection issues do not play a role. Otherwise, under data protection law , the disclosure of the licensor's name in the context of the licence notice is then covered by Art. 6 I b) GDPR, as the data processing is necessary for the fulfilment of the CC licence agreement. According to Section 13 of the German Copyright Act (UrhG), the author also has the right to recognition of their authorship of the work and can determine whether the work should be marked with a copyright notice and which notice should be used. The indication of the name can therefore also be seen as processing in accordance with Art. 6 I c) GDPR (in conjunction with Section 13 UrhG), which is necessary for the fulfilment of a legal obligation to which the controller is subject.
141 The clause on content indifference (no endorsement, Section 2.a.6) within the CCPL serves to protect the personal rights of the licensor. Therefore, the impression must not be given that the licensor supports a particular type of use, even though this is not the case (no endorsement).
142 In addition, however, personal rights claims, e.g. for injunctive relief under Sections 1004, 823 of the German Civil Code (BGB), also apply analogously if the material violates corresponding personal rights. This could include, for example, the right to informational self-determination, criminally relevant facts such as insults, defamatory criticism or damage to reputation, or the post-mortem personal rights. A conceivable case would be that the material is altered in such a way that it takes on the opposite meaning and the licensor thereby jeopardises his reputation (or that of others) or faces criminal prosecution .
Data protection and personal rights of persons mentioned in the material
143 More often than with the licensor themselves, data protection and personal rights issues are likely to arise in relation to persons mentioned in the material. If third parties are mentioned or depicted in materials of any kind, texts, photos, memes, etc., the CCPL cannot be used as a legal basis for the processing of personal data or matters relating to personal rights. The clause itself stipulates that data protection or personal rights are not "co-licensed". In practice, this means that all necessary data protection and personal rights consents, e.g. for photos, are not "sub-licensed" with the CCPL and may need to be obtained additionally. Similarly, the data controller is subject to the information obligations pursuant to Articles 13 and 14 GDPR.
144 Therefore, the processing of personal data of third parties, even under a CC licence, requires a legal basis in accordance with Art. 6 or, where applicable, Art. 9 (special categories of data) of the GDPR.
145 Consent as a legal basis. If the legal basis is based on consent within the meaning of the GDPR, the conditions of Art. 7 GDPR (conditions for consent), in particular the possibility of revoking consent to data processing in accordance with Art. 7(1) GDPR, must be taken into account.
146 In addition to consent, numerous legal bases or sector-specific exceptions to data protection law may be considered:
147 Sections 22, 23 KUG. If the CC-licensed image publications are for exclusively journalistic, editorial, scientific, artistic or literary purposes, their permissibility may be based on Sections 22, 23 KUG. The opening clause of Art. 85(2) GDPR applies here
148 Media privilege as a legal basis. For CC-licensed material that falls under media privilege, a blanket exemption from the provisions of the GDPR applies via Section 12 MStV for broadcasting, insofar as personal data is processed for journalistic purposes, via Section 23 MStV for telemedia for journalistic-editorial content, and via the respective state press laws for press companies and their auxiliary companies.
149 Legitimate interests as a legal basis. In addition to consent, the licensor and licensee may process personal data by asserting their legitimate interests pursuant to Art. 6 (1) (f) GDPR. These are set out in more detail in Recital 47 of the GDPR. However, this requires a comprehensive balancing of interests with the rights of the data subject, which are based, among other things, on the "reasonable expectations" of that person. Examples mentioned in Recital 47 of the GDPR include "a relevant and appropriate relationship between the data subject and the controller", e.g. if the data subject is a customer of the controller or is employed by the controller. CC licencees and licensors must therefore ask themselves "whether a data subject can reasonably foresee, at the time the personal data is collected and in view of the circumstances in which it is collected, that processing for this purpose may take place". [21]
150 Personal rights claims against the licensee. As with the licensor itself, personal rights claims, e.g. for injunctive relief, may also be asserted against the licensee in accordance with Sections 1004 and 823 of the German Civil Code (BGB) in relation to persons mentioned in the material if the material infringes corresponding personal rights, for example the right to informational self-determination or even criminally relevant matters such as insults, defamatory criticism or damage to reputation or the post-mortem personal right. A conceivable case would be that the material is altered in such a way that third parties find their personal rights infringed or face criminal prosecution.
151 Liability and warranty. Section 5 regulates the contractual exclusion of warranty and the limitation of liability and is commented on in detail there. According to this, the statutory law on gifts applies to the scope of the warranty, according to which, in the case of CC-licensed works, legal defects within the meaning of Section 523 BGB are particularly relevant. Liability is subject to the provisions of the General Terms and Conditions and is limited thereto. Statutory claims for infringement of third-party rights, e.g. under the Product Liability Act, general tort law and other liability provisions, remain unaffected by contractual liability.
E. Version history
152 Until today's CCPL4, there was no international version in which the rights mentioned today were mentioned. The ported CCPL2 and CCPL3 DE mentioned the personal rights that were to remain unaffected by this licence. The current wording has therefore been harmonised for all countries for the first time by CCPL4 and is thus valid worldwide in its international approach.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.b.1. Personal rights and data protection is licensed under a Creative Commons Attribution 4.0 International License.
