Dissecting CCZero

Scalpels

Creative Commons has just launched a new legal tool for discussion known as CCZero, and I’m going to go through the current version and comment. Cool scalpel pic from Wikipedia and in the public domain.

As readers will know, I was the primary drafter, together with Dr. Charlotte Waelde, on a Talis-funded project that produced the Open Data Commons — Public Domain Dedication & Licence. This tool implements the Science Commons Protocol for implementing Open Access Data, which generally calls for the waiver of copyright and database rights for data in order to facilitate sharing. I’ve also been involved in Creative Commons Scotland and several research projects examining Creative Commons and other open content licences. In comparison with Open Data Commons, Creative Commons has also implemented the Science Commons protocol, but within the greater context of any works and not just data and databases. This new legal tool is CCZero or CC ∅, and these comments are part of a larger ongoing conversation about how to implement the protocol and the two beta drafts.

The homepage for the beta version of the new CCZero tool is at:
http://labs.creativecommons.org/license/zero

CCZero homepageCCZero actually uses two underlying legal tools: One waives rights (CC ∅ Waiver 1.0 United States) and the other asserts that rights do not exist (CC ∅ assertion 1.0 United States). The waiver works for authors and rightsholders and the assertion means that someone thinks that the work has no copyright in the United States. Right — screenshot of CCZero start page.

Comment on the overall structure

This is a draft based on the law of the United States

Unlike the current six main Creative Commons licences, CC has not made an ‘unported’ version of the licence based on international treaties. Instead the CCZero text is the US version of a document that they hope will be ported by their international partners. International copyright treaties don’t set standards for waiving copyright, so basing a waiver document on the Berne Convention (such as the unported licences) won’t work.

C Zero image

CC ∅ Waiver 1.0 United States

Human readable summary available here(BETA).
Underlying legal code available here(BETA).

No signup process

I mentioned on the Open Data Commons site that I thought that any application of a legal tool involving a public domain waiver should have a “signed writing” to make sure that people really knew what they were doing by dedicating a work to the public domain and also so that the dedication would fit existing or likely legal standards. (Read that post here).

The CCZero Waiver does not have a confirmation process whereby a series of emails get exchanged before the user gets to use the final legal document. The Creative Commons Public Domain Dedication, a legal tool currently available on the CC website, does use an email confirmation process. Below — Screenshot of public domain dedication tool CC currently uses.

CC Public Domain Dedication screenshot

Why is the email confirmation process not used with CCZero?

Waiver too broad?

While discussing the steps in the CCZero waiver process, I’d also like to suggest that the waiver language next to the check box could be too broad (this is the first step to waiving rights to a work under CCZero). Below — Screenshot of first page of the CCZero waiver process.
CCZero waiver first page

The text asks (emphasis mine):

I hereby waive all rights to this work. To the extent possible under the law, I waive all copyright, moral rights, database rights, and any other rights that might be asserted over the work.

One of the issues that came up with the Open Data Commons project was the relationship that the dedication to the public domain would have with other IP rights such as trademark and patents. Waiving these rights are not required under the Science Commons protocol nor do I think that they should be waived. Patents could best be addressed in a secondary document when appropriate, and trade marks have only a tangential relationship with the core goal of placing the work in the public domain.

Besides just the above page, the actual legal code might also include these other IP rights when it states that the “Affirmer”:

“waives and relinquishes all of her or his copyright and related or neighboring legal rights in the Work available under any federal or state law, treaty or contract …”

I suggest that the legal code and any associated text make it clear whether they do or do not cover trade marks and patent rights.

Database rights

I initially missed it, but the CCZero 1.0 Waiver US legal code seems to cover European sui generis database rights (emphasis mine):

The Affirmer hereby fully, permanently and irrevocably waives and relinquishes all of her or his copyright and related or neighboring legal rights in the Work available under any federal or state law, treaty or contract, including but not limited to moral rights, publicity and privacy rights, rights protecting against unfair competition and any rights protecting the extraction, dissemination and reuse of data, whether such rights are present or future, vested or contingent (the “Waiver”).

Full CCZero waiver legal code.

It looks like they intend for this to cover the sui generis database right because the first page to sign up for the CCZero waiver (screenshot above) includes database rights (emphasis again mine):

I hereby waive all rights to this work. To the extent possible under the law, I waive all copyright, moral rights, database rights, and any other rights that might be asserted over the work.

The legal code of the waiver should explicitly mention database rights if this is the intent. Rather than using the “any rights protecting the extraction, dissemination and reuse of data”, I would suggest using language that tracks the Database Directive (Directive 96/9/EC) such as (both of which originate from Open Data Commons drafts):

Any rights protecting the extraction or re-utilisation of the whole or a substantial part of data

Or

Any rights resulting from the Chapter III (”sui generis”) rights in Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. (as applied in national law) as well as any similar rights available.

However it is possible that the legal text was drafted with US law in mind, particularly the law of unfair competition (additional thoughts on unfair competition), and so the language was not meant to cover database rights. If so, the coverage of database rights should be clarified and so should the accompanying pages in the CCZero sign up process.

Moral rights

The ongoing discussion on moral rights and Creative Commons deserves more than a brief mention inside this post, and so I’ll write more about it later. However I want to flag up that the CCZero text associated with the waiver (the initial process, icons, and legal code) waive moral rights and that this is not possible in all jurisdictions. Use of the work could still be subject to claims in moral rights. Note CC has proposed a version 3.01 that addresses moral rights issues.

The human readable summary of the waiver should be adjusted

The human readable summary of the CCZero waiver does not cover moral rights or database rights, which are both part of the copy and paste text given at the end of the CCZero process to assert your work under CCZero (shown below).

Screenshot of final page containing code:
CCZero result

And the human readable summary for the CCZero waiver:

CCZero human readable summary

The CCZero waiver human readable summary should mention all the rights involved, including moral rights (and database rights).

CC Zero image

CC ∅ assertion 1.0 United States

Human readable summary available here(BETA).
Underlying legal code available here(BETA).

The assertion allows for third parties to state that they believe that the work does not have a copyright in the United States. I don’t have much to say about the legal text at the moment, but do have some comments on the interface for creating the licence.

Clarify the scope of the assertion

The text on the pages involved in asserting the non-existence of copyright do not indicate that the legal code limits this to the United States. Creative Commons has an international following and should make it clear that the assertion only applies to the copyright law of the United States so that it doesn’t get used for other jurisdictions.

Indicate the risk of legal liability

The process for the CCZero assertion does not make it clear that the asserter could face legal liability for a wrong assertion that a work isn’t covered by copyright. I would suggest putting this in the process, especially as it forms a part of the legal code:

The Asserter understands and acknowledges that her or his good faith efforts to verify the copyright status of the Work may not shield the Asserter from claims of liability arising from the Assertion.

Notifying users of the CCZero assertion would encourage them to use the assertion more accurately because they would be aware of possible penalties.

Icons and human readable summary should reflect US only application

The resulting icons do not make the US-only application clear. CC creates small icons that can be attached to a work to quickly indicate its status (used above). The CCZero icons do not indicate their US-only limits. Work could not have a copyright in the United States but have one in another jurisdiction. Users should be forewarned that the CCZero assertion may not be valid in their jurisdiction. This also goes for the human readable summary page.

I’ll be posting follow ups as the CCZero conversation continues.

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5 Responses to Dissecting CCZero

  1. Jordan says:

    Also be sure and check out elliott bledsoe’s commentary on CCZero.

  2. Pingback: Pages tagged "rights"

  3. Pingback: OCLN | Open content legal news - 18 January 2008

  4. Jeff says:

    I think a small test is in order…to see if people really understand the rights they are giving up with CC-ZERO / PD. I’m working on one for those who wish to post to my site (which is for articles dedicated to the public domain)

  5. Pingback: OCLN | Open Content Legal News - 22 Feb 2008

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