- A. General questions of interpretation (Lina Böcker/Anna Kubiessa)
- B. Terms and conditions law (Lina Böcker/Anna Kubiessa)
- C. International applicability (Lina Böcker/Anna Kubiessa)
- D. Authorisation to license, employee copyright (Grischka Petri)
- E. Machine readability (John Weitzmann)
- F. Notes on the use of the CCPL (Paul Klimpel)
Literature: Matthias Berberich, On the guiding nature of copyright law principles, WRP 2012, 1055; Oliver Castendyk, Licence agreements and general terms and conditions law, ZUM 2007, 169; Tanja Dörre, Current case law on Creative Commons licences, GRUR-Prax 2014, 516; Thomas Dreier, Creative Commons, Science Commons – A paradigm shift in copyright law?, in: Ohly, Perspectives on intellectual property and Competition Law: Festschrift for Gerhard Schricker on his 70th birthday, 2005, 283; Sebastian Horlacher, Creative Commons Licences 4.0 – A (copyright) legal analysis based on open educational resources in higher education; Till Jaeger/Reto Mantz, LG Cologne: Non-commercial use under CreativeCommons licence, MMR 2014, 478; Jochen Marly, Practical Handbook on Software Law, 8th edition 2024; Stefan Maaßen, Warning letter for failure to name the author, GRUR-Prax 2013, 127; Till Jaeger/Axel Metzger, Open Source Software – Legal Framework for Free Software, 5th edition 2020; TillJaeger/Axel Metzger, Open Content Licences under German Law, MMR 2003, 431; Manuel Klatt-Kafemann, Creative Commons, cms-journal 2009, 81; Dominik König, The simple, free right of use for everyone, 1st edition 2016; Ansgar Koreng, News on Creative Commons licences, K&R 2015, 99; Till Kreutzer, Open Content – A practical guide to Using Creative Commons Licences, 2nd edition 2016; Till Kreutzer, LG Munich I: Validity of the GNU General Public Licence (GPL) under German law, MMR 2004, 693; Katja Kuck, Review of Model Contracts in Copyright Law, GRUR 2000, 285; Stefan Maaßen, Warning letter for failure to name the author, GRUR-Prax 2013, 127; Reto Mantz, Creative Commons licences in the context of international court proceedings, GRURInt 2008, 20; Reto Mantz, Open access licences and transfer of rights for open access works, in: Spindler (ed.), Legal framework conditions for open access publications, 2006, 55; Catharina Maracke, Creative Commons International – The International License Porting Project, JIPITEC 2010, 4; Jochen Marly, Practical handbook on software law, 7th edition 2018; Jan Bernd Nordemann, AGB-Kontrolle von Nutzungsrechtseinräumungen durch den Urheber, NJW 2012, 3121; Hermann-Josef Omsels, Open Source und das deutsche Vertrags- und Urheberrecht, in: Schertz/Omsels (eds.), Festschrift für Paul W. Hertin zum 60. Geburtstag on 15 November 2000, 2000; Gunda Plaß, Open Contents in German Copyright Law, GRUR 2002, 670; Karl Riesenhuber, When Concluding the Management Agreement, the Beneficiaries are Entrepreneurs within the Meaning of Section 14 BGB, ZUM 2002, 777; Thomas Schiffner, Open Source Software: Free Software in German Copyright and Contract Law, 2003, 185; Martin Schippan, Clear Words from the Federal Court of Justice on the Effectiveness of Fee Conditions for Freelance Journalists, ZUM 2012, 771; Peter Sester, Open-Source-Software: Vertragsrecht, Haftungsrisiken und IPR-Fragen, CR 2000 797; Kurt Siehr, Internationales Privatrecht: deutsches und europäisches Kollisionsrecht für Studium und Praxis, 2001, 360; Gerald Spindler, in: Spindler (ed.) Rechtsfragen bei Open Source, 2004, C. Copyright; Gerald Spindler, Expert opinion on legal issues relating to open source, 2003; Gregor Thüsing, in: Graf v. Westphalen/Thüsing/Pamp (eds.), Contract law and general terms and conditions, 50th Supplementary Delivery 2024, Transparency Requirement; Volker Triebel/Stephan Balthasar, Interpretation of English Contract Texts under German Contract Law – Pitfalls of Article EGBGB Art. 32 EGBGB Art. 32 (I) No. 1 EGBGB, NJW 2004, 2189; Gregor Völtz, Creative Commons licences in the light of consumer protection – More bad than consumer-friendly?, VuR 2016, 169; Kristina Wagner, Current possibilities and legal problems of Creative Commons licence models, MMR 2017, 216.
A. General questions of interpretation (Lina Böcker/Anna Kubiessa)
1 The use of CC licences creates a contract between the licensor and the licensee. The starting point for understanding this contract
I. Interpretation rules of the BGB
2 Unless copyright and publishing law provide for mandatory provisions, the general rules of interpretation in Sections 133 and 157 of the German Civil Code (BGB) apply.
II. Copyright interpretation rules
3 The statutory rules of interpretation of copyright law are generally based on a different set of interests than those involved in CC licensing: According to the rules of interpretation, authors should be protected from relinquishing their rights too extensively, whereas authors aim to grant the most extensive rights of use possible when issuing CC licences. What this means in concrete terms for the What this means in concrete terms for the individual rules of interpretation of copyright law in relation to CC licences is explained below.
1. Transfer purpose doctrine (Section 31 (5) UrhG)
4 The interpretation principle of the doctrine of transfer purpose from § 31 (5) UrhG states that, in case of doubt, the author only grants those rights of use that are indispensable for achieving the purpose of the contract . The principle is based on the guiding principle governing the entire copyright law of the widest possible participation of the author in the economic exploitation of his work (participation principle).
2. Further rules of interpretation (Sections 37–39 UrhG and Sections 88, 89 UrhG)
5 Section 37 UrhG contains further specifications of the doctrine of transfer of purpose for certain areas.
III. International understanding of the term
6 Since the original licences originate from the US legal system, it is essential to understand the international technical terms used, such as the terms "distribute" and " " (section 1.i Rn. 67)
IV. Statements by the Creative Commons organisation
7 It has not been definitively clarified to what extent statements by the organisations behind a licence ("licence stewards") can be used for interpretation purposes.
8 In both the international and German FAQs, a distinction must be made between whether the organisation pursues its own economic interests and whether it takes a position on the specific issue in a personal matter. The Creative Commons organisation does not represent any economic interests, as far as can be seen, and its fundamental statements and interpretations are likely to be decisive for the majority of users.
B. Terms and conditions law (Lina Böcker/Anna Kubiessa)
9 According to general opinion, CC licences are to be understood as general terms and conditions because they are pre-formulated for an indefinite number of contracts. According to § 305 (1) sentence 1 BGB, general terms and conditions are understood to mean all contract terms pre-formulated for a large number of contracts which the user of the other contracting party when concluding a contract. As a rule, this also includes standard form contracts.
10 The significance of consumer protection in the field of copyright law has not yet been definitively clarified, which is why the interpretation of clauses under general terms and conditions law must take into account the extent to which the interests of consumers worthy of protection can be balanced with those of authors.
I. Scope of application (Sections 305 et seq. BGB)
1. Special provisions for entrepreneurs (Section 310 BGB)
11The term "entrepreneur" as defined in § 14 (1) BGB includes not only collecting societies but also freelance authors, as they pursue an independent professional activity in the marketing of their works.
2. Individual agreements (Section 305b BGB)
12 Pursuant to § 305 (1) sentence 3 BGB, contractual terms that have been agreed upon by the contracting parties in individual contracts are excluded from the review of general terms and conditions. Pursuant to § 305b BGB, these take precedence over the general terms and conditions.
II. Inclusion of general terms and conditions
13 The inclusion of contractual clauses is governed by Sections 305(2), 305a-305c BGB. In this context, explicit attention must be paid to whether the licence agreement is concluded with the authors themselves or with a third party. If, for example, the rights holders work together with database providers and undertake to grant a licence for their work to every interested user, the rights holders generally use the terms and conditions for their own business purposes and the inclusion of the terms and conditions is attributed to them despite the intervention of third parties.
1. Notice and opportunity to take note
14 The user of the general terms and conditions must inform the other party of the general terms and conditions in accordance with Section 305 (2) of the German Civil Code (BGB) (No. 1) and give them the opportunity to take note of them (No. 2). For effective incorporation, the point in time at which the licensee first comes into contact with the licence must be taken into account.
15 There is disagreement as to what extent it is reasonable to expectknowledge of English (or other language) licence texts to be taken into account, even though contracts in Germany are normally concluded in German.
2. No surprise clauses (Section 305c (1) BGB)
16 According to Section 305c (1) BGB, surprise clauses do not become part of the contract. These are understood to be clauses that are objectively unusual and have a surprise or overwhelming effect.
a) Admissibility of the Share Alike module
17 Using the Share Alike module (CC BY-SA)
b) Admissibility of the reversion clause
18 The CC licences also contain a reversion clause
3. Ambiguity rule (Section 305c (2) BGB)
19 The ambiguity rule pursuant to Section 305c (2) BGB states that doubts in the interpretation of general terms and conditions are to the detriment of the user. However, this rule only applies if, after exhausting all possible interpretations, at least two interpretations remain legally justifiable. [68]
20 In principle, a copyright agreement must be interpreted both in accordance with Section 305c (2) BGB and in accordance with the doctrine of transfer of purpose. [69]
21 In the field of photography law, there has been discussion about how the Non-Commercial (CC BY-NC) module should be interpreted.
22 In addition, it may be unclear to some of those processing the work to what extent attribution
III. Content review (Sections 307–309 BGB)
23 The standard of review for content control is based on the general clause in Section 307 BGB, which is specified in more detail by the prohibited clauses listed in Sections 308 and 309 BGB. Sections 307–309 BGB apply comprehensively to consumers, so that the general clause in Section 307(1) sentence 1 BGB, which prohibits discrimination contrary to good faith, is only relevant to CC licences if, in exceptional cases, two entrepreneurs are facing each other.
1. Scope of content control
24 It should be noted that, according to Section 307(3) sentence 1 of the German Civil Code (BGB), the provisions on content control only apply to those provisions of the General Terms and Conditions whose regulations deviate from or are intended to supplement specific legal provisions. It can therefore be concluded that only the ancillary obligations are subject to content control, but not the main obligations of the parties.
25 In addition, the scope of the granting of rights itself should also be exempt from control,
2. Prohibition of discrimination (Section 307 (1) sentence 1 BGB)
26 According to the prohibition of discrimination pursuant to § 307 (1) sentence 1, (2) no. 1 BGB, unreasonable discrimination is to be assumed if the clause is incompatible with the fundamental principles of the statutory provision from which it deviates, or if it restricts essential rights or § 307 (2) No. 2 BGB restricts essential rights or obligations to such an extent that the achievement of the purpose of the contract is jeopardised.
27 For this assessment, the civil law gift agreement pursuant to § 516 BGB
28 There is debate as to whether the transfer purpose concept in Section 31(5) UrhG, beyond its character as an interpretation rule, also has a guiding function as a mandatory content standard.
29 Furthermore, it is disputed whether the limitations of copyright under Sections 44a et seq. UrhG
3. Admissibility of the Share Alike module
30 The anticipated stipulation by the author, which, via the Share Alike module, also imposes requirements on subsequent acts of distribution, could conflict with the principle of exhaustion.
4. Admissibility of the reversion clause
31 There is disagreement as to whether the reversion clause is permissible from a general terms and conditions perspective, as it reverses the provision of Section 314(2) of the German Civil Code (BGB).
5. Transparency requirement (Section 307(1) sentence 2 BGB)
32 The transparency requirement under § 307 (1) sentence 2 BGB requires that the licence agreement be unambiguous with regard to the manner in which the author is named and neither leave the terms of the agreement open nor leave them to the discretion of the licensor.
IV. Legal consequence
33 In principle, according to Section 306 (1) BGB, a violation of the provisions on standard terms and conditions results in the ineffectiveness of the clause. This appears to be in line with the interests of onerous contractual clauses, but CC licences are characterised precisely by clauses that favour the consumer. This would mean that the consumer would be disadvantaged precisely when a clause of the author is classified as invalid.
34 In addition to judicial incidental review, action may be taken against the user of invalid general terms and conditions to prohibit the use of the general terms and conditions within the framework of an abstract review procedure pursuant to Sections 1, 3 UKlaG .
C. International applicability (Lina Böcker/Anna Kubiessa)
I. Universal applicability
35 The licence version 4.0 should, in a departure from the model of ported country licences, promote the international dissemination of CC licences and joint cross-border projects by facilitating universal uniform application ("Unported" and "International").
II. Model of ported licences
36 As the CC licences originally stem from US law, they were initially only available in English .
1. Principle of territoriality
37 According to the strict – and internationally recognised – principle of territoriality, the geographical effect of intellectual property rights is limited to the territory of the state that recognises the intellectual property rights ipso jure if the legal requirements are met.
2. Differences in jurisdictions
38 The individual licence versions differ both in terms of language and in specific legal issues.
39 Accordingly, there is an increased risk of contradictions and inconsistent handling of the licences in the case of ported licences.
D. Authorisation to license, employee copyright (Grischka Petri)
I. Overview
40 According to Section 7 of the German Copyright Act (UrhG), authors are the creators of the works and thus, as a rule, the rights holders who may license the use of their works . Under German law, copyright is not transferable (Section 29 (1) UrhG), but only inheritable (Section 28 UrhG), so that copyright agreements instead cover the granting of rights of use (Sections 29, 31 UrhG). Creative Commons licences fulfil precisely this function. While it is generally unproblematic for authors to decide for themselves under which CC licence they wish to make their works available, there are situations in which the use of a work is already subject to restrictions, particularly if the work was created within the framework of an employment relationship. In this case, licence sovereignty does not lie with the employee, but with the employer. The situation is similar when contracts have been concluded with exploiters that grant comprehensive and exclusive rights of use, for example with publishers, the music industry or film producers. Finally, licensing agreements with collecting societies restrict the licensing sovereignty of authors, especially for commercial uses (see G. Collecting Societies, margin note 6).
II. Understanding of CC under US law
41 The Creative Commons organisation provides a brief reference to this constellation on its website: "If you created the material in the scope of your employment or as a work for hire, you may not be the holder of the rights and may need to get permission before applying a CC licence."
42 The term " work for hire " originates from US copyright law. 17 U.S. Code § 101 defines the term as "a work prepared by an employee within the scope of his or her employment", i.e. within the scope of an employment relationship, or – alternatively – as a work created in a contractual relationship, namely as a contribution to a compilation, a magazine or similar, to a film or other audiovisual work, a translation or instructions, provided that both parties agree that it is to be considered a "work for hire". The legal consequences initially concern the term of protection: "works for hire" are protected for 95 years from publication (or, in the case of non-publication, for 120 years from creation). The consequences for the use of a CC licence are that the creator of the work cannot alone determine the granting of rights of use through a CC licence, but rather the employer or client makes this decision.
III. Regulations in German employee copyright law
1. Basics
43 If it arises from the "nature of the employment or service relationship" (Section 43 UrhG), the employee has an obligation to grant the employer the rights of use.
44 If the employer makes the mandatory works produced for it available under a CC licence, this constitutes sublicensing in accordance with Section 35 UrhG. The author may not refuse to give the necessary consent in bad faith. Employment contract obligations may specify this duty of good faith and extend it to such an extent that the reservation of consent is waived. In order to avoid misunderstandings and legal uncertainty, this consent should not be agreed implicitly, but should be expressly included in the employment contract or result from a collective agreement.
2. Limits of general terms and conditions law: reservation of consent, unknown types of use
45 Under general terms and conditions law, the special features applicable in labour law must be taken into account appropriately (Section 310 (4) sentence 2 BGB). These initially strengthen the position of the employer vis the employed author via Section 43 UrhG .
46 Furthermore, the right of revocation cannot be waived in the case of unknown types of use. Sections 31a and 32c of the German Copyright Act (UrhG) must be applied consistently in the relationship between the employee author and the employer. There are no special features arising from the employment relationship in this case.
3. Restriction of moral rights in the employment relationship
47 The moral rights specified in Sections 12–14 of the UrhG may be subject to restrictions in an employment relationship .
48 The right to attribution under Section 13 UrhG gives the authors the right to determine whether the work should be marked with a copyright notice and which designation should be used. This right thus includes the designation with the real name, a pseudonym/artist name or the waiver of attribution ("ob").
49 Section 14 of the German Copyright Act (UrhG) prohibits distortions and other impairments that are likely to jeopardise the legitimate intellectual and personal interests in the work. The ND and SA licence modules outline different levels of permissible modification of the work. The CC0 release includes a far-reaching waiver of moral rights up to the limit of what is permissible (cf. section 2, margin numbers 14, 96). With the exception of the core moral rights, the prohibition of modification under Sections 14 and 39 UrhG may be made the subject matter of a contract.
IV. Publishing and other exploitation agreements
50 In German copyright law, a separate legal construction leads to results comparable to those of "work for hire", namely when comprehensive and exclusive rights of use are granted. In practice, this is regularly the case with publishing contracts, broadcasting contracts, film contracts and similar agreements. For example, Section 8 of the German Publishing Act (VerlG) grants the publisher the exclusive right to reproduce and distribute (publishing right); typically, publishers are granted very extensive rights of use without any time limit.
51 The secondary publication right under Section 38 of the German Copyright Act (UrhG) gives authors the right to make their work available after one year from the date of publication by a publisher. However, this right does not include any further scope for sub-licensing, but only the possibility of making the work freely accessible without prejudice to other existing rights of use. The secondary exploiting author is therefore not entitled to release his work for reuse under a CC licence.
V. The right to other exploitation under Section 40a UrhG and CC licences
52 Finally, reference should be made to Section 40a UrhG, which provides for a number of special features for agreements concluded since 1 March 2017 in the event of the granting of exclusive rights of use in return for a flat-rate remuneration.
53 Relevant to the field of Creative Commons is therefore the constellation in which an author has granted her contractual partner, who is not also her employer, exclusive rights of use on a permanent basis in return for a lump sum payment (i.e. a one-off payment) and therefore no longer has the possibility of granting licences herself. An example of this would be a publishing or other exploitation agreement.
54 After five years, the author may renew or extend the exclusivity agreement (Section 40a (2) UrhG). In this case, licence sovereignty remains with the author's contractual partner for the longer period, i.e. possibly for the entire statutory term of protection.
55 The requirement for an exclusive licence for the application of Section 40a UrhG makes it clear that Section 40a UrhG only has a scope of application for Creative Commons licences which, in accordance with the "some rights reserved" provision, provide for a licence component that can be separated as an exclusive right. These are the building blocks NC for commercial use and ND for adaptations, e.g. translations. This exclusivity does not exist for a CC BY licence, and certainly not for the CC0 release. These licences essentially represent a free waiver of the exercise of rights of use, which, due to the irrevocability of the open licence, does not grant the contractual partner any special economic position either.
56 The case in which no payment is made to the author, as is typically the case in scientific publishing contracts, is equivalent to a lump sum payment.
E. Machine readability (John Weitzmann)
57 Very early on in its development, Creative Commons promoted the feature of machine readability in relation to the legal tools it developed, and very clearly in relation to the CCPL in particular (cf. also the three-layer model, introduction para. 27). Version 1.0 of the CCPL was already referred to as "machine-readable copyright licences" in the press release announcing its official public launch on 16 December 2002. The terminology used for this feature has not always been consistent. Where the press release refers to "machine-readable translation", it later refers to "machine-readable layer", among other things, and the CC website currently refers to "machine-readable code". However, the meaning is always the same: a version of the respective licence text that can be processed by machine in terms of its legal functionality.
58 Machine readability in this sense therefore does not mean readability at the syntactic or character level, but at the semantic-functional level. The machine-readable version should therefore be "understood" by appropriately complex electronic IT systems and then also be able to be processed and "applied". More precisely, it would be better to speak of machine interpretability, but the term machine readability is widely established, despite its often purely syntactic meaning in other domains.
59 The processing of CCPL rights information enabled by such machine readability is potentially diverse and cannot be exhaustively listed here. The most obvious examples include – in addition to indexing by search engines and the rights-related handling of content in databases and by content management systems – all functions of the so-called Semantic Web, in which the licensing of certain web content plays a role. The approaches and ideas of Creative Commons itself are more likely to belong to the realm of content management systems, namely to make the machine readability of CC licences and the "CC Rights Expression Language" (ccREL) developed for this purpose usable for the creation of digital copyright registers.
60 The simplest and probably by far the most common use of ccREL is the simple inclusion of metadata for CC-licensed works in the HTML code of websites that display these works. The machine that processes the information in this case is the browser used to display the websites or, in terms of hardware, the computer on which the browser runs. One potentially useful functionality for the browser user that can be realised in this way is, for example, an icon displayed in the browser window indicating that the accessed web page contains CC-licensed works. Clicking on such an icon can then display the licence information, for example.
61 Technically, ccREL is implemented as part of the "Resource Description Framework" (RDF), the framework defined by the World Wide Web Consortium for encoding property statements on the web. By using, for example, the HTML tag <span>, which marks a span within the respective HTML document and thus a specific area of the web page created by it, statements with a subject-predicate-object structure can then be placed in the HTML document and interpreted by browsers and other software.
62 For the sake of clarity, a descriptive expression in ccREL is reproduced here as it might appear in the HTML text of a website:
<a href="https://example.com/example.html">Example</a>
63 However, according to Creative Commons' own statement, only the legal licence (contract) text is legally relevant and authoritative. If the content written in ccREL does not correspond to the standard legal texts or is incomplete, or if the machine-readable versions of the CCPL used are interpreted "incorrectly" by machines, this does not affect the legal construction. Cases in which users could invoke a grant of rights solely on the basis of ccREL, or in which something changes with regard to the scope of liability, are not covered by this interpretation. , this does not affect the legal construction. Against this background, it is difficult to imagine cases in which users could invoke a grant of rights solely on the basis of ccREL or in which the scope of liability for legal infringements would change.
F. Notes on the use of the CCPL (Paul Klimpel)
German:
"The Creative Commons Corporation ("Creative Commons") is not a law firm and does not provide legal services or legal advice. The distribution of Creative Commons Public Licences does not create any client relationship or other legal relationship. Creative Commons makes its licences and related information available as is. Creative Commons makes no warranty of any kind with respect to its licences, any materials licensed under their terms, or any related information. Creative Commons excludes any liability for damages resulting from their use to the fullest extent possible.
Use of Creative Commons Public Licences
Creative Commons Public Licences are standardised sets of legal terms that authors and other rights holders can use to release their own works and other materials protected by copyright or certain other rights, as specified in the Public Licence below, for use. The following considerations are for informational purposes only, are by no means exhaustive, and are not part of our licences.
Considerations for licensors: Our Public Licences are intended for use by those who are legally authorised to permit the public to use material that would otherwise be prohibited by copyright or certain other rights. Our licences are irrevocable. Licensors should read and understand the terms of the licence they select before using it. Licensors should also obtain all necessary rights required to use our licences so that the public can use the licensed material as intended. Licensors should clearly identify any material to which the licence does not apply. This also applies to other CC-licensed material and to material used in accordance with a copyright restriction or exception. Further considerations for licensors can be found in the Creative Commons Wiki (in English).
Considerations for the public: By using one of our Public Licences, a licensor gives the public permission to use the licensed material under certain conditions. If the licensor's permission is not required for any reason – for example, due to a copyright exception or limitation – then the corresponding use is not governed by the licence. The permissions in our licences only relate to copyright and certain other rights for which the licensor can grant permissions. However, the use of the licensed material may still be prohibited for other reasons, such as because third parties have copyright or other rights in the material. A licensor may also have special requests, such as requiring that all modifications be identified or described. Although this is not mandatory under our licences, you should endeavour to comply with such requests where possible. Further considerations for the general public can be found in the Creative Commons Wiki (in English).
English
English:
"Creative Commons Corporation ("Creative Commons") is not a law firm and does not provide legal services or legal advice. Distribution of Creative Commons public licences does not create a lawyer-client or other relationship. Creative Commons makes its licences and related information available on an "as-is" basis. Creative Commons gives no warranties regarding its licences, any material licensed under their terms and conditions, or any related information. Creative Commons disclaims all liability for damages resulting from their use to the fullest extent possible.
Using Creative Commons Public Licences
Creative Commons public licences provide a standard set of terms and conditions that creators and other rights holders may use to share original works of authorship and other material subject to copyright and certain other rights specified in the public licence below. The following considerations are for informational purposes only, are not exhaustive, and do not form part of our licences.
Considerations for licensors: Our public licences are intended for use by those authorised to give the public permission to use material in ways otherwise restricted by copyright and certain other rights. Our licences are irrevocable. Licensors should read and understand the terms and conditions of the licence they choose before applying it. Licensors should also secure all rights necessary before applying our licences so that the public can reuse the material as expected. Licensors should clearly mark any material not subject to the licence. This includes other CC-licensed material, or material used under an exception or limitation to copyright. Further considerations for licensors.
Considerations for the public: By using one of our public licences, a licensor grants the public permission to use the licensed material under specified terms and conditions. If the licensor’s permission is not necessary for any reason–for example, because of any applicable exception or limitation to copyright–then that use is not regulated by the licence. Our licences grant only permissions under copyright and certain other rights that a licensor has authority to grant. Use of the licensed material may still be restricted for other reasons, including because others have copyright or other rights in the material. A licensor may make special requests, such as asking that all changes be marked or described. Although not required by our licences, you are encouraged to respect those requests where reasonable. Further considerations for the public."
1 The usage notes serve to clarify that Creative Commons licences are provided as standard licences, but that their use is the responsibility of the respective users and consumers. It is expressly pointed out that Creative Commons Corporation, which provides the licences, is not a law firm and does not offer legal advice or other legal services; this is followed by the clarification that no client relationship is created by the use of the licences. Any liability that may arise from the use of the licences is expressly excluded.
2 For information purposes only, a number of basic statements are made about the nature of the licences and considerations regarding their use are made from the perspective of both the licensor and the licensee.
3 For the licensor, it is emphasised that the use of the licence is only possible if he has all the rights necessary for the granting of the licence and is entitled to dispose of them. This is an important point insofar as copyright and related rights are often seen by laypersons as a "monolithic block", as suggested by the © symbol suggests, overlooking the fact that copyright usage rights can also be granted with restrictions in terms of time, space or content. Copyright usage rights obtained solely for a specific use are not sufficient for the granting of CC licences. The author himself can therefore grant CC licences without further ado, provided that he has not previously granted exclusive rights elsewhere. If, on the other hand, it is not the author or the holder of ancillary copyright himself, a rights holder must have all exclusive – or at least transferable – rights of use.
4 Furthermore, reference is made to the irrevocability of the licence (see also section 2, margin note 25, and section 6).
5 It is expressly requested that, before granting a licence, the licence and the respective conditions for the use of the material be examined. It is also requested that material be marked if the licence does not apply to it. This note is particularly important if content within CC material is used on the basis of statutory permissions and the licence does not extend to it, e.g. if a quotation is used within a text that is protected by copyright and may only be used on the basis of the statutory permission of Section 51 of the German Copyright Act (UrhG).
6 For the licence holder, it is first clarified that a licence is only effective if the use is not already permitted for other reasons. If the use is already permitted by law, the licence does not apply (see section 2.a.2).
7 It is also pointed out that Creative Commons licences only apply to copyrights and related rights that the licensor can dispose of. Finally, it is requested that the licensor's wishes and conditions be observed even if they are not enshrined in the licence and are therefore not legally binding (however, mandatory restrictions that go beyond the licence conditions are not permitted, see Annex Rn. 4).
Creative Commons License
Open Access Kommentar, Commentary on Pre-CCPL is licensed under a Creative Commons Attribution 4.0 International License.
