- A. The idea, need and realisation of openness
- B. Initial scepticism
- C. Impact on legislation
- D. On the nature of the present work as a commentary
1 It is fair to say that copyright law responds to developments in copying, storage and communication technology as well as to the shift in economic power relations associated with these changes . The emergence of copyright law itself can be interpreted as a reaction – albeit a delayed one – to the invention of the printing press, which made it possible to reproduce texts on a previously unknown scale. The same applied to images produced using woodcuts and etchings. The democratisation of reproduction equipment in the 20th century prompted copyright law to respond with the introduction of statutory remuneration claims, thereby establishing the principle of exclusive rights. Copyright law then responded to the democratisation of reproduction equipment in the 20th century with the introduction of statutory remuneration claims, thereby partially setting aside the exclusive right in favour of ensuring remuneration for authors.
2 However, the greatest challenge proved to be digitisation. As a result, actions that were previously free of copyright – such as reading a book, i.e. comprehending its content – were now subject to exclusive reproduction rights, because in the the digital world, every use is technically linked to reproduction processes. This was particularly problematic in the case of computer programmes, where the proprietary code blocked access to the unprotected ideas underlying the programme. But the creative use of third-party works, which only became possible on a larger scale through digital cut & paste, also conflicted with copyright law. Added to this was the magazine crisis, which made the financing model of scientific publishing appear increasingly questionable. From an instrument for ensuring the production and dissemination of intellectual works, copyright law in these areas threatened to turn into its opposite.
A. The idea, need and realisation of openness
3 The reactions of those involved to this fundamental change were contradictory. While rights holders on the one hand felt that their control interests were being compromised, on the other hand the call for open, copyright-free spaces became increasingly urgent. For example, Richard Stallman of the Free Software Foundation (FSF) wrote the GNU General Public Licence (GPL) in early 1989, a genuine copyleft licence that used statutory copyright to create a de facto copyright-free zone . The "trick" was to grant users a comprehensive, free, non-exclusive licence of use, which, however, is subject to the obligation that any software containing components licensed under the GNU licence may only be distributed under the GNU licence. Shortly afterwards, in 1991, Paul Ginsparg at Los Shortly afterwards, in 1991, Paul Ginsparg at Los Alamos National Laboratory (LANL) began archiving physics articles and subsequently laid the foundation for the open access movement and all subsequent open access repositories with the open access preprint archive "arXiv.org". And finally, this series also includes the Creative Commons initiative founded in 2001 by Lawrence Finally, this series also includes the Creative Commons initiative founded in 2001 by Lawrence Lessig, then a professor at Stanford Law School. Its goal was to create a universally accessible repository of creative works for reuse as freely as possible.
4 To achieve this goal, Creative Commons licences adopted the idea of contractually secured copyright freedom on the one hand. On the other hand, with their "some rights reserved" approach, they chose a middle ground between the "no rights reserved" of genuine copyleft licences and the "all rights reserved" of traditional copyright. Above all, however, Creative Commons provided users of Creative Commons licences with a limited and therefore clear number of standardised licence terms to choose from. These are also available in three formats: as a legal contract text, in a short form that is also understandable to laypeople, and finally in the form of a digital code, so that works under a Creative Commons licence can also be found as such on the internet. In contrast to previous practice, where individual terms of use were either stored in a comprehensive database or added to the work in question in a digital header, Creative Commons takes advantage of the possibility offered by the internet to centrally store the licence terms, which are referred to in connection with the respective work simply by a series of fairly simple icons, each representing the individual components of the licences . Since all licences provide for free use, unlike before, no further contact between the author and the user is required. All this serves the need for legally secure framework conditions for the use and reuse of copyright-protected works made available under Creative Commons licences.
5 Initially, Creative Commons licences were tailored entirely to US copyright law. This had the disadvantage that some of the clauses – such as the complete disclaimer – were incompatible with national terms and conditions regulations. The Creative Commons organisation therefore sought to adapt the provisions separately for each country to the specific features of the individual national copyright laws. However, this also proved impractical, as it led to different versions of the licences being made available via the internationally accessible internet, resulting in provision via the internationally accessible Internet to almost insoluble problems of international and intertemporal private law. For this reason, the international Creative Commons community decided with version 4.0 to return to an international version of the licence terms, the provisions of which are commented on in their official German translation.
B. Initial scepticism
6 The introduction of Creative Commons did not initially meet with unanimous approval from the copyright community.
7 Many authors were initially sceptical about the Creative Commons model, fearing that the principle of free use and redistribution of protected content could undermine the legally guaranteed exclusive rights and lead to a decline in users' willingness to pay. An echo of this scepticism can still be found in a 2006 resolution by the renowned international copyright association ALAI (Association littéraire et artistique internationale), in which the Creative Commons system is no longer rejected as such, but in which urgent warnings are issued about its "negative" consequences (no remuneration, loss of the possibility of granting exclusive licences, irrevocability, no support in the event of infringements).
8 Collecting societies also initially had difficulties with authors who published some or all of their works under a CC licence. This probably had less to do with the fact that Creative Commons as an alternative form of licensing is based on the principle of free of charge and thus contradicts the mandate of collecting societies to obtain remuneration . The reason was more likely that collecting societies exercise the rights granted to them by authors on an exclusive basis, so that after the complete fiduciary transfer of rights, the granting of non-exclusive CC licences was ruled out. At the same time, individual licensing of all or only certain works of individual authors on the basis of Creative Commons licences by individual authors was inconsistent with the nature of collective licensing of rights by collecting societies. The same applied to the flat-rate collection and distribution of income from statutory remuneration claims. The most successful synchronisation of the collecting society model and the Creative Commons licence model was achieved in the field of images, which, unlike the field of text and, above all, music, is not characterised by comprehensive management of rights by the relevant collecting society and by what is in any case largely individual licensing of works .
9 However, Creative Commons licences have now become a firmly established part of both the national and international copyright system, offering authors additional opportunities for licensing and distributing their works and gives users easy, legally secure access to works licensed under a Creative Commons licence without the need for additional licence negotiations.
C. Impact on legislation
10 The desire to create a pool of works that are released for more or less free use has also impressed legislators, who had previously shown openness to both the open source movement (Section 32 (3) sentence 2 UrhG) and open access publishing (§ 38 (4) UrhG). Legislators now also believe that the use of third-party protected material to create creative user-generated content that is shared on online platforms should not be burdened by cumbersome and expensive licences.
11 At European level, the 2019 DSM Directive responded to this by stipulating that users must be able to upload quotations, critiques and reviews, as well as caricatures, parodies and pastiches (Art. 17 (7) UntA 2 letters a and b of the DSM Directive). At the same time, permission obtained by an online service provider also covers actions by non-commercial users, provided that they do not generate significant income from their activities (Art. 17 (2) DSM Directive).
12 In addition, in the course of implementing the DSM Directive, the German implementing legislator has made use of the possibility under EU law of a pastiche exception in national law with Section 51a UrhG (German Copyright Act). It wants to interpret the term "pastiche" broadly, so that It wants to interpret the term "pastiche" broadly, so that "in particular [...] practices such as remixes, memes, GIFs, mashups, fan art, fan fiction or sampling" are covered (BT-Drucks. 19/27426, p. 91). The Federal Court of Justice, in its questions referred to the ECJ under number C-590/23, considers it possible that the pastiche exception could, at least for artistic expression, constitute a catch-all provision to which no additional restrictive criteria such as the requirement of humour, stylistic imitation or homage apply. Whether this view, which has not met with unanimous approval in the literature, will ultimately prevail must be decided by the CJEU as the highest authority in the never-ending "Metall auf Metall" legal dispute. D.
D. On the nature of the present work as a commentary
13 At first glance, it may seem surprising that the editors have chosen the form of a commentary for the following explanations on Creative Commons licences. Traditionally, the form of the commentary is reserved for annotations to legal works, whereas the design of contractual licence terms is usually in the form of manuals.
14 Nevertheless, there is a good reason for choosing commentary as the format. As a comprehensive set of standards with identical content and only comparatively few options and variations, Creative Commons licences are quite similar in character to legal provisions. As with legal norms, the individual provisions of Creative Commons licences raise questions about their interpretation, their interaction and their practical significance. This justifies explaining and annotating the individual contractual provisions separately in terms of their content and their respective cross-references using the same method as is used in conventional commentaries on individual statutes.
15 In conclusion, I can only hope that this work will be widely distributed, provide the right answers to the legal questions arising in the course of Creative Commons, and in this way contribute to further legal certainty.
Karlsruhe, September 2024
Prof. em. Dr Thomas Dreier
Creative Commons License
Open Access Kommentar, Commentary on Foreword is licensed under a Creative Commons Attribution 4.0 International License.
