Literature: RetoMantz/LG Cologne, LG Cologne: Non-commercial use under Creative Commons licence, MMR, 478; Reto Mantz, Creative Commons licences in the mirror of international court proceedings, GRURInt 2008, 20; NilsRauer/Diana Ettig, Creative Commons & Co. Legal issues surrounding the use of (free) image databases, wrp 2015, 153; Till Kreutzer, German UNESCO Commission e. V. (ed.), Open Content – A practical guide to the use of Creative Commons licences, 2ndedition y 2016; Meta contributors, Open Content – A Practical Guide to Using Creative Commons Licences/ The Creative Commons licensing scheme/en, wikimedia, Meta wiki, 10 January 2022; ShareAlike compatibility: FAL, wiki.creativecommons, 21 October 2014; Free Software Foundation, Various Licenses and Comments about Them, GNU Operating System, 1 December 2022; Kristina Wagner, Current possibilities and legal problems of Creative Commons licence models, Digital revolution of copyright through CC licences, MMR, 216; ThomasHoeren/Ulrich Sieber/Bernd Holznagel, Multimedia Law Handbook, 62nd supplementary edition 2024. Supplemental Delivery; FrankBrauner/Anja Brauneck, Appropriate Remuneration for Authors and Artists, 1st edition 2022.
A. Overview
170 Section 3.b regulates the Share Alike attribute licence module (SA). According to this, it must be ensured that "modified material", when it is passed on, is also licensed under the CC BY-SA-4.0 licence or a compatible licence.
171 The Share Alike licence module thus has a copylefteffect similar to that known from GPL licences.
B. BY SA
172 The prerequisite for the applicability of the Share Alike licence module is that the licensee distributes modified material that they have created themselves. If there is no distribution as defined in section 1.k, i.e. if the material is not made available to the public, the obligations do not apply. Purely internal use is not covered by the Share Alike condition.
173 The Share Alike condition also does not apply if the material is modified but was not created by the licensee themselves. In this case, the respective author of the modified material is already obliged to share the modified material under CC BY-SA-4.0 or a compatible modification licence.
174 According to Section 3.b, sentence 1, the conditions set out in Section 3.a shall apply first. In addition, the following three further conditions must then be fulfilled.
I. Section 3.b.1. Use of a compatible modification licence
175 First, a compatible "modification licence"must be used. This obligation is unfortunately worded. The licence text merely states: "The modification licence you grant must be a Creative Commons licence [...]". However, at no point is there any obligation to grant a modification licence at all. If the provision is interpreted literally, one could also conclude that no licence needs to be granted at all or that a completely different licence may be granted, as long as it is not a modification licence. It could certainly be argued that, particularly on the basis of the interpretation criteria of general terms and conditions, the "most user-unfriendly" or "most customer-friendly" interpretation of the provision should be applied, according to which compatibility must be ensured only if a modification licence is granted at all. This is also supported by the wording in Section 3.b.2, according to which it must be a modification licence "chosen" by the licensee.
176 The regulation allows for three types of modification licences:
The Creative Commons licence in its current version with the same licence elements, i.e. CC BY-SA 4.0, is selected. The use of a licence with different licence elements, e.g. CC BY-NC-SA 4.0, CC BY-ND 4.0 or CC BY-NC-ND 4.0, is not permitted.
future version of the corresponding licence is selected, i.e. a possible CC BY-SA 5.0 (for the licence versions, see Einl Rn. 32 ff.). Here, too, exactly the same licence elements must be selected.
compatible modification licenceis selected. This is defined in section 1.c. However, this section merely refers to the URL creativecommons.org/compatiblelicenses . It is therefore up to the Creative Commons organisation to adapt this list and to remove or add licences there.
177 Compatible modification licences are defined on the aforementioned website at creativecommons.org/compatiblelicenses. The Free Art Licence 1.3 (Licence Art Libre, LAL-1.3) and GPL-3.0 are mentioned there . Here, too, with regard to the interpretation criteria of general terms and conditions, a clearer presentation would be helpful, because the affiliation of the aforementioned licences to the compatible modification licences results solely from a deeper indentation of two bullets.
178 As a result, compatibility is likely to be limited to LAL version 1.3 and GPL-3.0, as only these licences are mentioned in the full text. In the case of LAL-1.3, the English text version will definitely be included, but other language versions may also be included.
179 At creativecommons.org/compatiblelicenses, it is also correctly noted that only a statement on compatibility between CC BY-SA 4.0 and GPL-3.0 is made in one direction. This is because the licensee can distribute their contributions to a CC BY-SA 4.0-licensed work under GPL-3.0. However, Creative Commons cannot make any statement as to whether it is permissible to distribute contributions to GPL-3.0-licensed projects under CC BY-SA 4.0.
180 However , according to the Free Software Foundation, the licence steward of GPL-3.0, CC BY-SA 4.0 is not compatible with GPL-3.0.
181 The same applies to LAL-1.3. Here, too, the compatibility rule can only apply in one direction. Although LAL-1.3 does contain a compatibility rule, the final question of whether the CC BY-SA 4.0 licence is compatible with it can, as explained, only be answered by the parties involved in the specific contractual relationship. Therefore, it should first be assumed that, even for LAL-1.3, the compatibility rules only allow the relicensing of the CC BY-SA 4.0-licensed work under LAL-1.3 and not vice versa.
182 Ultimately, in all compatibility issues, it must be taken into account that it is hardly possible to make general statements about the compatibility of licence provisions if these licence provisions offer room for interpretation and are not so clear that compatibilities can be ruled out beyond doubt . This is because licences are not laws that can be interpreted in a binding manner by the Licence Steward as a legislative body, but rather model contracts that depend on the specific use and the persons involved in the specific contractual relationship. Their understanding is what counts first and foremost, and only secondarily can statements by the Licence Stewards be relied upon.
II. Section 3.b.2. Reference to the modification licence
183 Section 3.b.2 requires a reference to the modification licence. This must be in the form of either the complete licence text, a reference to a URI or ahyperlink . In addition, as stated in Sections 3.a.1.c and 3.a.2, it is clarified that this obligation may be fulfilled in any "appropriate form" and depends on the medium, means and context. In this regard, reference is made to the above commentary.
III. Section 3.b.3. No additional or different terms
184 Section 3.b.3 prohibits offering additional or different conditions or imposing such conditions on the modified material, as well as applying effective technical measures if this restricts the exercise of rights in the modified material. This provision essentially corresponds to the provision in Section 2.a.5.c. In this regard, please refer to the commentary there.
IV. General effectiveness of the clause
185 The literature refers to the effect of the principle of exhaustion on CC-licensed software. According to the principle of exhaustion, software that has been placed on the market with the consent of the rights holder in the EEA can no longer be subject to licence agreement restrictions .
186 There is also discussion as to whether the Share Alike attribute is invalid from a general terms and conditions perspective, particularly with regard to its classification as a potentially surprising clause
187 Furthermore, it cannot be assumed that there is any unreasonable disadvantage. The obligation to pass on appropriately licensed works under the same licence conditions under which the works were obtained can certainly be regarded as the price for their use, which, incidentally, does not depend on the payment of a fee . It is a central principle of open source and open content to ensure that works remain free in the future – and the Share Alike attribute also serves this principle.
C. BY NC-SA
188 The Share Alike provision of CC BY-NC-SA 4.0 is identical in wording to the corresponding provision of BY-SA 4.0, which is why the above comments on BY-SA also apply here in principle. The only deviation is found in section 3.b.1, according to which compatible modification licences must be compatible with CC BY-NC-SA 4.0. As a result, modified material may also only be used for non-commercial purposes ; the reproduction and distribution of the modified material is only permitted under a modification licence.
189 According to Section 3(b)(1), permissible modification licences are:
CC BY-NC-SA 4.0.
Any future version of the corresponding licence.
The compatible modification licences defined in section 1.c , which are available at creativecommons.org/compatiblelicenses . However, no licences compatible with CC BY-NC-SA 4.0 are currently listed. This means that this option is practically ruled out at present. However, Creative Commons reserves the right to include corresponding licences at a later date.
Creative Commons License
Open Access Kommentar, Commentary on Section 3.b. Share Alike is licensed under a Creative Commons Attribution 4.0 International License.
