- A. Overview
- B. Section 8.a. No restriction of legal freedoms, "copyfrauds"
- C. Section 8.b. Validity preservation, severability clause
- D. Section 8.c. (No) waiver
- E. Section 8.d. Privileges and Immunities (IGO)
A. Overview
1 Section 8 sets out the interpretation of the CCPL with regard to individual legal issues. These concern aspects of the public domain (letter a), the continued validity of invalid clauses (letter b), the individual waiver of individual terms of the CC licence (letter c) and the privileges and immunities of certain licensors or licensees, such as those that apply to intergovernmental organisations (letter d).
2 The aspects regulated in Section 8 eliminate, within their scope of application, the need for a gap-filling interpretation of the CCPL, as might otherwise be undertaken within the framework of Section 157 of the German Civil Code (BGB).
B. Section 8.a. No restriction of legal freedoms, "copyfrauds"
3 Section 8.a first clarifies that CC licensing does not conflict with legally granted freedoms of use of the licensed content. Therefore, wherever the use of content is permitted by law, CC licensing does not impose any restrictions on the content and its use. If, for example, a licensed item is not protected by copyright because it does not meet the requirements of the definition of a work or because the copyright has expired, then (supposed) CC licensing does not mean that CC licence conditions must be complied with. The same applies to a situation in which the use of copyright-protected and CC-licensed content does not affect any exploitation rights within the meaning of Sections 15 et seq. of the German Copyright Act (UrhG), for example because the use does not fulfil the definition of 'public' under copyright law (see definition of 'distribution' in Section 1.i). The provision also covers cases in which the use of copyright-protected content is covered by limitations and exceptions; for details, see the explanations in Section 2.a.2 on "Exceptions and limitations". As a result, the CCPL does not attempt to undermine the legal status of the public domain in its many forms.
4 Within the scope of German copyright law, the clause is of limited significance, as a licence cannot in any case lead to a restriction of legally binding rights of use, i.e. those that are not subject to the freedom of disposition of the contracting parties. The distinction between the elements of reducing, limiting and restricting can therefore be left open. What is meant by all the elements is that licensing does not result in any reduction of statutory rights of use.
5 The phrase "impose conditions" refers to the conditions of the individual licence modules, such as Share Alike (SA) or Attribution (BY). For example, the attribution requirements (BY) apply in cases where the legal limitation of freedom of quotation is applicable, not because the CCPL does not have to be used in these cases. Use is then permitted under Section 51 UrhG and the attribution requirements do not have to be complied with. freedom of quotation applies, because in these cases the CCPL does not have to be used at all. Use is then permitted in accordance with Section 51 of the German Copyright Act (UrhG) and the obligations to cite sources in accordance with Section 63 UrhG must be complied with. This legal provision overlaps in its implementation with the BY attribution obligations in accordance with Section 3.a of the CCPL, but is not identical. Strictly speaking, there is even a certain freedom of choice for those quoting, because if the licence is complied with and the name is correctly attributed in accordance with the CCPL, there is a simultaneous violation of Section 63 UrhG – for example, the obligation to name the publisher
6 The case of lack of protectability or expired property rights is worthy of discussion and relevant in practice . The CCPL can only be reasonably understood to mean that it is not applicable in the case of public domain as a whole. There are reasons for this both in the licence and in statutory law: First of all, according to the CCPL, in this case there is no licensing of rights within the meaning of Section 1.g, according to which the licensed rights are "limited to such copyrights and similar rights " that affect the use of the licensed material; the prerequisite for this is that the subject matter of the licence is protected by copyright or similar rights. Secondly, this also reflects the legal situation, according to which the licensing of content that is not covered by any property rights is void.
7 The clause can also be used to deal with"copyfrauds". This term refers to behaviour in which a copyright is wrongfully claimed for content that is actually in the public domain (so-called intellectual property rights infringement). This impression can arise when a public domain object is placed under a CC licence. However, "fraud" can only be assumed in cases of intentional deception, which is why this term is misapplied in the most common case of unintentional mislicensing. Furthermore, the idea of deliberate deception is also inappropriate if one assumes that the public generally understands the sharing of CC-licensed copyright-free materials to be more of a release than a restriction. In any case, the present clause in section 8.a clarifies that neither intentional ("copyfraud") nor unintentional infringement of property rights can give rise to obligations under the licence for users of the material. Rather, the present clause expresses that a licensor cannot claim any property rights.
8 The provision often becomes relevant in the context of researchdata and digitised cultural objects: if the materials made available are in the public domain, they are unsuitable as licence objects and the licence cannot claim validity in such cases. At the same time, the BY module supports, for example in the area of research data, the attribution obligation via a – supposed – obligation to name the source, which may not be required under the licence or copyright law, but may be required under the rules of good scientific practice.
9 It is unclear whether the clause also means that use of the licence without having the corresponding right can also eliminate the accusation of misleading commercial practices within the meaning of Section 5 (1) UWG. However, due to the fact that the use of CC-licensed materials is free of charge, this constellation is unlikely to be relevant in practice.
C. Section 8.b. Validity preservation, severability clause
10 Section 8.b is to be interpreted as a severability clause which, in the event of a provision of the licence being invalid, first requires an attempt to reduce the relevant provision in order to maintain its validity. If this is not successful, the licence shall apply without the provision in question. In Germany, the legal enforceability of CC licences is recognised in principle (see A. Legal enforcement), but this does not apply to every single clause. For example, the reduction of liability in Section 5 is probably contrary to the General Terms and Conditions and therefore not effective (see Section 5, margin note 12 ff.). Because the law on General Terms and Conditions does not allow for a reduction that would preserve its validity, the provision must be separated, with the consequence that general civil law must be referred to (in this case, the provisions on gifts in Sections 516 ff. of the German Civil Code (BGB)). However, the licence as a whole remains valid and the invalidity of the clause has no effect because liability law falls back on the standard of gift law, which arrives at comparable results.
D. Section 8.c. (No) waiver
11 First of all, the clause states the obvious fact that licensees must comply with the licence conditions . At the same time, the clause expresses that the possibility for licensors to waive individual licence conditions vis licensees is provided for. For example, in the case of licensing with a prohibition on adaptation, a single licensee may be granted an individual right of adaptation (also in return for remuneration), which is also possible informally in principle according to the requirements of copyright contract law .
12 How waivers can be reflected in licensing practice is not expressly regulated. The wording leaves open whether a waiver or relaxation of conditions must be made by way of an individual agreement or whether it can also be granted via the general licence offer ad incertas personas (see CCPL Einl Rn. 5), i.e. to the general public via a supplemented licence notice. The question arises because although the Creative Commons organisation considers the licence text to be in the public domain, in order to maintain the integrity and uniform understanding of the name/licensing practice for the use of licence names and logos, it reserves the right to require licensors not to terms of the licence or create additional restrictions (see Annex Rn. 4). According to this , the text of the CC licence cannot be modified at will if the designation as a corresponding CC licence is to be retained .
13 This raises the question of how the expressly possible waiver of licence conditions (waiver) in (c.) can be exercised while still retaining the designation as a CC licence. There is much to suggest that this is generally possible, provided that the waiver is not made by modifying the CC licence text itself, but is clearly separated from it. In addition, the waiver must actually only concern a waiver of the licensor's rights and not contain any new restrictions. Accordingly, in the case of a CC BY-ND licence, for example, it would be possible to add an additional paragraph following the CC BY-ND licence to state that, in the case of musical works, the use of excerpts from the work with a length of less than 20 seconds for the purposes of remixing is also permitted, even if this would not actually be permitted due to the ND component.
14 Digression: CC+ and dual licensing.
15 It is somewhat unclear whether waivers can also be marked by CCPlus. The description of the mechanism suggests that the intention was to address dual licensing, i.e. CCPlus should mark cases in which a complete second licence is offered in addition to the CC licence, but not CC licences that are waivers (and only in favour of the licensee). This is supported by the fact that the description of the technical implementation of the protocol refers to a separate licence text ("separate agreement"). However, it should also be possible to use the CCPlus mechanism for pure However, it should also be possible to use the CCPlus mechanism for pure waivers by referring to both the original and the CC licence text together with the waiver. In practice, waivers can thus be constructed as a form of dual In effect, waivers can thus be constructed as a form of dual licensing, namely by first offering the CC licence without waiver and, alongside it, a (second, "dual") licence with the corresponding waiver.
E. Section 8.d. Privileges and Immunities (IGO)
16 Creative Commons developed its own port for intergovernmental organisations (IGO port, see also Einl Rn. 45) under the former licence version 3.0 with the addition of IGO. Rn. 45). This was intended to take into account the fact that such organisations may operate in an independent legal space. In the event of licence violations, the IGO port provided that privileges and immunities would not be waived. Insofar as, for example, arbitration proceedings took precedence over court proceedings before national courts for IGOs, the CC licence should not stand in the way of this. Under version 4.0, these privileges were included in the generic licence and the separate IGO port of the CC licence was abandoned.
17 Customary international law and international treatylaw grant certain individuals (such as diplomats) and organisations certain privileges and immunities, such as exemption from the jurisdiction of the host state. The clause makes it clear that the licence does not alter these provisions. In some cases, it is possible to waive these privileges (e.g. in Art. 3(1)(a) of the Protocol on the Privileges and Immunities of the European Patent Organisation of 5 October 1973); however, the licence cannot be interpreted to mean that the licensee waives their immunities by using the licence.
18 The IGO porting of version 3.0 states: "'IGO' means, solely and exclusively for purposes of this Licence, an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality. Other organisations established to carry out activities across national borders and that accordingly enjoy immunity from legal process are also IGOs for the sole and exclusive purposes of this Licence. IGOs may include as members, in addition to states, other entities."
19 The clause states that licensors or licensees who enjoy certain privileges and immunities from prosecution do not waive these immunities under CC licensing. The first sentence appears to extend the scope of application exclusively to traditional subjects of international law, but the second sentence extends it to all organisations that enjoy immunities and are active at the intergovernmental level. Other internationally active organisations are always excluded, including corporations, international associations, and international NGOs, which are often also referred to as "IOs" (international organisations) and do not enjoy immunities and privileges. Correctly, the latter differentiation is decisive, while the link to the "IGO" term does not seem to add any meaningful differentiation. With the simplification to the criterion of privileges and immunities in version 4.0, it has therefore probably succeeded in expressing the content of the regulation more clearly and concisely without losing anything.
20 However, licences under "IGO 4.0" can be found in isolated cases.
Creative Commons License
Open Access Kommentar, Commentary on Section 8 – Interpretation is licensed under a Creative Commons Attribution 4.0 International License.
