1 According to the last sentence, the annex expressly does not form part of the licence. However, it contains important information on the use of the Creative Commons trademark, the licensing of the licence texts themselves, and the role of the Creative Commons organisation in relation to the licensor and licensee.
A. CC as licensor
2 CC licensing takes place exclusively between the licensor and the licensee. The licensor is the party that grants the rights of use to the licensed material. The Creative Commons organisation merely provides the licensing tools and is not a contractual partner. Only if the organisation itself licenses content, as mentioned on page 2, licences content itself, it is the licensor and, as such, a party to the licence agreement. However, this is not the norm for CC-licensed materials. The Creative Commons organisation provides brochures, for example, which it places under a CC licence. There are no special features of the organisation as a licensor.
B. Public domain licence agreement text and trademark protection
3 The Creative Commons organisation considers the licence agreement text to be in the public domain or makes it available without conditions under copyright law by means of a CC0 release declaration. Nevertheless , the use of the CC licence kit is not free of conditions: the name Creative Commons, the logo and the associated pictogram are protected by trademark law. These are registered trademarks pursuant to Section 4 No. 1 of the German Trademark Act (MarkenG). Trademark-related use of the name and logo is therefore only permitted in Germany pursuant to Section 14 MarkenG with the consent of the Creative Commons organisation. CC generally grants such permission to use the trademark within the scope of the Annex for the purpose of referring to CC licensing. Further uses and conditions are set out in the "Trademark Policy" of the Creative Commons organisation.
4 Other trademark-related uses within the scope of the protection classes registered by the Creative Commons organisation, in particular the use of trademarks for modified versions of the licence text, are not permitted.
5 The question of whether and when a trademark-infringing modification of the licence triggers liability claims by the licensee against the licensor remains unresolved. This will probably depend on the individual case. The problem with these constellations is that the trademark infringement can initially only be challenged by the Creative Commons organisation. Licensees who have used a work in reliance on the marking with a suitable CC licence but subsequently discover that the licensor has based the licence on a modified text do not have this option of complaint; at best, they can argue that the modification constitutes a surprise clause within the meaning of Section 305c (2) of the German Civil Code (BGB) and was therefore not effectively included.
6 Incidentally, it can be left open whether the mere labelling of a work with one of the CC pictograms falls under trademark use within the meaning of Section 14 MarkenG or – as is strongly suggested – merely constitutes a descriptive indication of the nature of the work within the meaning of Section 23 (1) No. 2 MarkenG. In case of doubt, however, the annex should also be read as consent within the meaning of Section 14 MarkenG, whereby at the same time an offer to conclude a corresponding trademark licence agreement is made, which in turn is generally implied by the use of the trademark, so that the use of the trademark in these cases is permissible regardless of its classification.
Creative Commons License
Open Access Kommentar, Commentary on Annex is licensed under a Creative Commons Attribution 4.0 International License.
