- A. Overview
- B. Section 6.a. Licence term
- C. Section 6.b.1. Revival of rights of use
- D. Section 6.b.2. Legal remedies still admissible
- E. Section 6.c. Dual licensing
- F. Section 6.d. Continued validity of licence agreement clauses upon termination of the agreement
- G. Version history
- H. Position of CC
A. Overview
1 Section 6 regulates the duration of the licence and, in particular, the case of premature termination. CC licences are granted for the duration of the respective property right and are therefore generally unlimited in time.
2 Of practical importance is the legal consequence regulated in paragraph a. sentence 2 in the event of a licence violation: The rights of use granted by the licence automatically lapse, so that the CC-licensed work may no longer be used at all. This very strict regime is the result of the system of free licences, which are not aimed at usage fee, but rather on a functioning usage model, the "rules" of which users are expected to adhere to. If a user violates the licence terms, they may be warned and a copyright infringement claim may be asserted. However, it is possible to reacquire the rights of use if the licence violation is remedied in a timely manner. The details of this are regulated in more detail in paragraph b.
3 Finally, paragraph d contains a clarification regarding the possibility of dual licensing, i.e. the use of a CC work under different licence terms.
B. Section 6.a. Licence term
I. Contract term
4 Rights of use may be granted for a limited period of time in accordance with Section 31 (1) sentence 2 UrhG. Section 6.a clarifies that CC licences are generally granted for an unlimited period of time. Since property rights such as copyright have a limited duration, the term of the licence agreement is limited to this period of protection. For example, copyright protection in Germany ends 70 years after the death of the author in accordance with Section 64 UrhG. After that, the work enters the public domain and no licence is required for its use; accordingly, from that point on, there are no longer any licence obligations to fulfil.
II. Terms of protection
5 Different property rights, different terms of protection. Not all property rights that can be the subject of a CC licence have the same term of protection. Therefore, the type of property right involved and its term of protection are relevant for the term of the agreement and thus also for the period during which licence obligations must be fulfilled.
6 Copyright. Since CC licences usually grant rights of use to a copyright, the term of protection of 70 years after the death of the author is generally relevant for use in Germany. The period is not calculated from the date of death, but according to Section 69 UrhG (German Copyright Act) in full years, so that the 70 years are to be calculated from the end of the year in which the author died. If a work was created in co-authorship, the term of protection pursuant to Section 65 (1) UrhG is based on the death of the last surviving co-author, and in the case of cinematographic works, pursuant to Section 65 (2) UrhG, "seventy years after the death of the longest-living of the following persons: the principal director, the author of the screenplay, the author of the dialogue, and the composer of the music composed for the cinematographic work in question."
7 Ancillary copyright for photographs. Photographs may not only be protected by copyright, but also by the ancillary copyright of Section 72 UrhG if the required level of creativity is not met. The legislator considered the distinction between photographic works that possess the required level of creativity pursuant to Section 2 UrhG and purely technical photographs without a sufficient level of creativity to be difficult to implement in practice and therefore provided for a separate ancillary copyright for photographs.
8 Database producer rights. Section 87d UrhG stipulates that the rights of the database producer expire fifteen years after the publication of the database, but already fifteen years after its creation if the database has not been published within this period . This term of protection only applies to the ancillary copyright of the database producer pursuant to Section 87a et seq. UrhG; for database works, the general term of Section 64 UrhG applies.
9 Ancillary copyright of the press publisher. Pursuant to § 87j UrhG, the rights of the press publisher expire two years after the initial publication of the press release.
10 Other ancillary copyrights. The provisions of Sections 76 and 82 UrhG apply to the rights of performing artists such as actors and musicians, whereby a distinction is made between moral rights and exploitation rights in terms of duration, as well as whether the performance was recorded on a sound recording. For the right of the phonogram producer, § 85 (3) UrhG again stipulates that the right expires 70 years after the release of the phonogram; if the phonogram has not been released within 50 years of its production but has been used for public reproduction in a permissible manner, the right expires 70 years after this. However, if the sound recording has not been published within this period or has not been used for public reproduction in a permissible manner, the right expires 50 years after the production of the sound recording. The ancillary copyright of broadcasting companies expires pursuant to Section 87 (3) UrhG 50 years after the first radio broadcast.
III. Automatic expiry of rights of use
11 The concept of automatic expiry of rights originates from the GNU General Public Licence (GPL).
12 This has raised the question of whether this "conditional construction" is compatible with the provision of Section 31 UrhG, according to which a restriction in rem of rights of use is only possible for technically and economically independent types of use. The prevailing opinion in the literature and established case law in Germany assumes that the granting of rights of use is subject to a condition subsequent.
13 CC licences have adopted the concept of the GPL, so that here too, a licence infringement directly results in a copyright infringement. This is established case law in Germany.
C. Section 6.b.1. Revival of rights of use
14 Paragraph b. provides for a special regime for the revival of rights of use once lost. The regulation is based in essence on Section 8 of Version 3 of the GNU General Public Licence (GPL-3.0) . The reason for the possibility of automatic reinstatement of rights of use was the fear that, without such a provision, licensees would only be able to reacquire the licence with the express consent of the rights holders. Whereas under German contract law there are no particular obstacles to this, because a licensee who has lost their has lost their rights of use can simply conclude the licence agreement again if they remedy the licence infringement, here in the USA, under local licence law, greater obstacles are seen and it is believed that a "reinstatement" requires an explicit action on the part of the licensor.
15 Section 6.b now provides for two explicit options for the reinstatement of the lost rights of use: Either the licensee remedies the licence infringement within 30 days of becoming aware of the infringement, or they require an explicit re-granting of the rights of use by the rights holders. This rather concise provision raises a number of questions and problems.
16 First of all, the question arises as to what kind of knowledge of the licence infringement is required. A "need to know" will not be sufficient, otherwise the provision would be ineffective because it can always be assumed that licensees must be aware of their licence obligations. However, it is unclear what requirements must be met in terms of knowledge. Will it be necessary to demand a "precise description of the infringement", as required by Section 97a (2) No. 2 UrhG for an effective warning letter, or is it sufficient for the rights holder to provide a rough indication that allows the infringement to be recognised in its essential features? Section 97a UrhG serves to curb dubious mass warnings and the associated cost burden for the infringer. Section 6.b, on the other hand, aims to give the infringer a chance to reacquire lost rights of use. It is therefore justifiable that lower requirements for knowledge can be imposed here. It should be sufficient that the average user without special effort can recognise for themselves which obligations they have infringed. This carries the risk that, in the event of negligence, a permanent loss of rights will occur and an explicit re-granting by the rights holder will be required. Version 4 of the CC licences is therefore significantly stricter from the perspective of German law than the previous versions, which did not contain any provisions on the revival of rights of use . This is because, in the former, it was always possible for the licence infringer to re-enter into the licence agreement if use was resumed in accordance with the licence. From the perspective of US law, the legal situation may be reversed if, without a provision for the revival of rights of use, an explicit re-grant by the rights holder is always considered necessary. This highlights differences in licence agreement law, which depend on the applicable contract law.
17 Problematic and not further elaborated upon in the licence text is the case where a work has numerous different copyright holders, for example in the case of co-authorship or numerous adaptations of a CC-licensed work. In this case, after the expiry of the 30-day period for remedying the infringement, the infringer requires the consent of all rights holders involved rights holders in order to achieve a re-granting of the rights of use. Whether and in which cases a refusal constitutes a breach of good faith pursuant to Section 8 (2) sentence 2 UrhG if a co-author refuses to re-grant rights of use is likely to depend on the respective constellation and is likely to be an exception.
18 A prerequisite for the automatic re-granting of rights of use is the "curation" of the infringement. In this case, it will not be necessary to require the removal of the infringement in the sense that copies that have already been distributed in violation of the licence must be recalled from the distribution chain. It should be sufficient for the infringer to refrain from infringing the licence in future, for example by modifying a website with CC works in accordance with the licence or taking the website offline.
19 The CC licences impose fewer requirements than the GPL-3.0 in the event of repeated licence infringements. Whereas the rights holder can declare the licence agreement to be terminated with immediate effect in the event of a repeated licence infringement pursuant to Section 8 GPL-3.0, Section 6 does not provide for such a possibility. Apparently, the infringing licensee Apparently, the infringing licensee can repeatedly invoke an automatic revival of usage rights if they simply cease the infringement within 30 days. However, this possibility will find its limits in the abuse of rights, for example if the licensee briefly takes a work offline every 29 days.
D. Section 6.b.2. Legal remedies still admissible
20 Section 6.c.2 clarifies that the rights holder is not prevented from asserting copyright injunctive relief claims under applicable copyright law. This is because the fact that the licensee can revive the expired licence simply by ceasing the infringement does not mean that no copyright infringement claims can be asserted.
21 For infringements in Germany, this means that, as a rule, the submission of a cease-and-desist declaration with a penalty clause can be demanded, as is necessary in the case of copyright infringements in order to eliminate the risk of repetition.
E. Section 6.c. Dual licensing
22 Section 6.c also contains only a clarification, namely the indication that the rights holders may also offer the CC-licensed work under alternative licence terms. CC licensing does not bind the author in the sense that CC licensing would exclude deviating licence terms. The author remains free to exploit the work under different, including proprietary, licence terms. Particularly in the case of restrictive CC licences such as non-commercial licences, there is often a need for alternative licence terms, for example if commercial use is to be made that is not permitted under CC BY-NC licences.
23 Alternative licensing is only not possible without further ado if the rights holder only has a dependent copyright, such as in the case of an editor's copyright or co-authorship. In this case, the rights holder cannot offer the work under different licensing terms on their own, but all rights holders must decide on such different licensing. This can be difficult or practically impossible in individual cases, for example if many adapters are involved in a CC BY-SA-licensed work, such as a Wikipedia article, and these adapters cannot all be identified. 24 In the case of sole authorship, dual licensing is not only possible under a CC licence and a proprietary licence, but also under different variants of the CC licences. Such dual licensing is not only possible under a CC licence and a proprietary licence, but also under different variants of the CC licences.
24 In the case of sole authorship, dual licensing is possible not only under a CC licence and a proprietary licence, but also under different variants of the CC licences. Such a need may arise, for example, if the rights holder later wishes to allow use under a more liberal licence.
25 Section 6.c not only regulates dual licensing, but also clarifies that the rights holder is not obliged to offer the CC-licensed work permanently or to provide a download option. Here, it is up to the users to maintain distribution if the rights holders are not interested in doing so. Otherwise, the licence continues to exist, but in practice the possibility of use ends due to the lack of access to the licensed work.
F. Section 6.d. Continued validity of licence agreement clauses upon termination of the agreement
26 Occasionally, it may be unclear which contractual provisions should continue to apply upon termination of the contract. Paragraph d. aims to establish a clear provision for this case, in particular for the case of termination of the contract due to a breach of the licence terms. Upon expiry of the term of protection, the CC licence becomes invalid because the work then enters the public domain and may be used without a licence.
27 Section 6.d logically stipulates that sections 2 to 4 shall cease to have effect upon termination of the contract, i.e. neither rights of use shall be granted nor licence obligations shall exist. However, the definitions (Section 1), liability and warranty exclusions (Section 5), the provisions on the term of the contract and the revival of rights (Section 6), separate agreements outside the CC licence (section 7) and the provisions on interpretation (section 8) remain unaffected. These may still be relevant after the end of the contract, for example if damage resulting from the use of a CC-licensed work only occurs after the end of the contract or if questions of interpretation arise regarding the restoration of rights of use.
G. Version history
28 The licence versions of the CCPL prior to the introduction of licence version 4 in 2014, i.e. prior to the switch to the international approach of the CCPL,
H. Position of CC
29 The Creative Commons organisation's FAQ also includes a section on the termination of CC licences.
Creative Commons License
Open Access Kommentar, Commentary on Section 6 – Term and Termination is licensed under a Creative Commons Attribution 4.0 International License.
