- A. Overview
- B. Position of CC
- C. Legal status in German copyright law
- D. Relationship to CC licences
A. Overview
1 The CC0 release was developed between 2007 and 2009.
B. Position of CC
2 The Creative Commons organisation explains the CC0 release on its English-language website
3 In the FAQ on CC0, the Creative Commons organisation also explains that the CC0 release can (and should) specify the jurisdiction under which the respective work is released. In principle, CC0 is suitable for software licences, but does not cover patent licences, which is why other licences such as GPL 3.0 or Apache 2.0 may be more suitable. Although CC0 contains a waiver of attribution, there may be professional or ethical standards that nevertheless require attribution. CC0 does not exempt you from this requirement. Furthermore, the release of rights refers exclusively to copyrights and related rights and not to other rights such as data protection or personal rights.
C. Legal status in German copyright law
4 The possibility of a total waiver of one's own copyright originates from the US legal system, where it is referred to as "copyright abandonment". Interestingly, this abandonment of intellectual property was originally compared to the abandonment of ownership of livestock. The prerequisites were the will to abandon ownership and a real act that made this will recognisable.
I. No waiver of copyright
5 Under German copyright law, it is not possible to completely waive individual copyright.
II. Subsidiary licence
6 Due to this special nature of the CC0 release as a waiver of rights with a subsidiary licence, it has been described as a "belt-and-braces tactic".
1. Mandatory provisions of copyright contract law
7 Even if it is understood as a licence, the CC0 release is restricted by mandatory provisions of copyright law. The licence applies to all uses ("[...] for any purpose whatsoever"). For clarification, the licence text expressly includes commercial uses. The wording "in any current or future medium" also includes previously unknown, future types of use. According to Section 31a (1) sentence 1 UrhG, such a contract must be in writing, but this requirement does not apply if the author grants a simple right of use to everyone free of charge (Section 31a (1) sentence 2 UrhG). The CC0 release is such a free, simple right of use for everyone, so that the validity of the CC0 release does not depend on the written form. Of course, the CC0 release is available in writing as a standardised licence text anyway, and the granting of use under the CC0 release in the employment contract should also be set out in writing.
8 However, there is a statutory right of revocation for the licence for unknown types of use, which contradicts the irrevocable CC0 release. According to Section 31a (4) UrhG, the right of revocation under Section 31a (1) sentence 3 UrhG cannot be waived. If the author revokes the licence for a new type of use after it has arisen, it remains effective in all other respects.
2. Special features of CC0 as general terms and conditions
9 Furthermore, Creative Commons licences are pre-formulated contractual terms and conditions, i.e. general terms and conditions, for a large number of cases (see VorCCPL Rn. 9 ff.).
10 First of all, the question arises as to whether the CC0 release, in its endeavour to enable the maximum possible waiver of rights as a licence, constitutes a case of reduction to maintain validity if a complete waiver of rights is not possible. This is not permissible under general terms and conditions law, This is not permissible under general terms and conditions law, as the most customer-unfriendly interpretation must be assumed in principle and any ambiguities that may exist are also to the detriment of the party using the general terms and conditions (Sections 305c (2) and 307 (1) sentence 2 BGB).
11 For the independent use of the CC0 release, the legal standard for reviewing terms and conditions applies to users. Here, the revocability of the licence for unknown uses, which is not provided for by the CC0 release, could be surprising within the meaning of Section 305c (1) of the German Civil Code (BGB), but statutory provisions are not surprising, rather they are the catch-all provision in the event of a clause being invalid (Section 306 (2) BGB).
12 The situation is different in the case of the release of rights of use for works created in an employment relationship (see VorCCPL margin no. 40 ff.). One activity relevant to CC0 releases is, for example, museum photography. In this case, the employment contract may stipulate that the museum may make the photographs accessible under the CC0 release. The museum, as the employer, is then the user of the general terms and conditions vis the employed photographers. The same may apply to the creation of scientific texts for a collection catalogue, the development of learning materials such as handouts or tutorials, and the creation of database works or software.
13 If the specific granting of rights of use under the CC0 release exceeds the scope required by the purpose of the employment relationship, this may constitute unreasonable discrimination against the employee. In this context, the special provisions applicable under labour law must be taken into account (Section 310 (4) sentence 2 BGB). However, these strengthen the position of the employer vis the employed author. If the CC0 release is granted to the employer, the written form requirement under Section 31a (1) sentence 1 UrhG applies due to the inclusion of unknown types of use.
III. Waiver of copyright
14 In the event that part of the licence should be invalid, CC0 contains a severability clause: on the one hand, the rest of the licence shall remain valid; on the other hand, the licensor waives the exercise and enforcement of its copyrights. For German law, the CC0 release has therefore been described as a three-stage instrument: if the waiver of rights is invalid, CC0 constitutes a licence for use without conditions; if this is also not permissible, CC0 communicates a waiver of enforcement of rights.
IV. Limits of moral rights
15 According to its licence text, the CC0 licence operates within the scope of the legally prescribed leeway. In this context, the limits of moral rights must be taken into account in addition to the provisions of copyright contract law. In principle, the waiver intended by the CC0 licence also covers moral rights, although no general waiver is possible in this regard. The CC0 licence does not cover moral rights, which are guaranteed by In principle, the waiver intended by the CC0 release also includes moral rights, for which, however, no general waiver is possible.
16 The right of publication (Section 12 UrhG) is not normally affected by the CC0 release, as this (also in accordance with the recommendations of Creative Commons) should be carried out by the rights holders themselves . For employed creators, the considerations regarding rights of use apply here: for compulsory works, the employer is granted the right of publication (Section 12 UrhG) for exercise (VorCCPL Rn. 47).
17 Section 13 UrhG gives authors the right to determine whether the work should be marked with a copyright notice and which designation should be used: their real name, a pseudonym or a waiver of attribution. In 2023, the Federal Court of Justice had to assess the waiver of attribution in the terms and conditions of a photo portal. The court considered the advantage of a greater reach to be a decisive argument for not assessing such a form-based waiver as an unreasonable disadvantage.
18 In general, the limit of copyright-permitted changes to which authors have consented in accordance with Section 23 of the Copyright Act is seen in the prohibition of distortion.
D. Relationship to CC licences
19 The CC0 release cannot be combined with the other Creative Commons licence modules. It includes the waiver of the rights reserved in the CC licences to attribution, the immutability of the work and the requirement to contribute adaptations to the Commons. The CC0 release is also not limited to non-commercial uses. All rights reserved in the other CC licences are waived in the CC0 release.
20 Furthermore, the CC0 release cannot be used alongside the public domain mark. While the public domain mark identifies public domain materials to which no rights remain (and which cannot therefore be licensed), the CC0 release operates on the basis of existing copyrights. The CC0 release therefore ends as soon as the licensed work enters the public domain. After that, the CC0 release should be replaced by the public domain mark.
21 In practice, however, the CC0 release is also used for public domain materials, for example in the online presentation of museum collections. Here, the CC0 release serves as a practical catch-all licence to avoid ambiguities. For example, a photograph of a public domain sculpture, which is itself protectable as a photographic work, can be released under CC0, whereas for the reproduction of a sheet from a graphic collection, no photographic rights can be licensed at all due to Section 68 of the German Copyright Act (UrhG) – in this case, only the Public domain mark may be applied to the image data. However, a CC0 release may refer to the metadata co-published with the image. If this metadata reaches the threshold of originality, it is released.
Creative Commons License
Open Access Kommentar, Commentary on CC0 1.0 Universal is licensed under a Creative Commons Attribution 4.0 International License.
