For those not familiar with this area, my big picture layman’s summary of the semantic web / linked data: Make more stuff machine readable so that we can do smarter and better things with machines.

One of the strands of developing semantic web technology deals with building out copyright (and other IP) permissions into the framework. You can find out what the rights cover what, and where to go to get copyright permissions, etc, generally through adding metadata (data about data).

Going back to my lay interpretation, this means “making copyright permissions machine readable so that machines can do smarter and better stuff when dealing with copyright permissions”.

Creative Commons for example has started this through giving each of its licenses a set of machine readable code and through developing standards around these machine readable expressions of their licenses such as ccREL. Incidentally they give their licenses out in three versions: human readable (a summary), lawyer readable (the actual license) and machine readable (the extra stuff in the copy and paste code they provide).

Incidentally, at ISWC, there was a really interesting presentation on a paper (PDF) on looking at attribution, Creative Commons, and Flickr within a semantic web framework and ways to make compliant attribution in CC licenses easier.

I’m not qualified to go into deep detail on the technical side of implementing rights into the semantic web, so I’ll leave that to others. I’m thinking more about the big picture on how you build out such a framework for copyright and what approach you take.

Where do you start when trying to describe copyright licenses for the web?

I see (and have seen presented by others) three options:

• Option 1. Start with copyright law and write out permissions based on each of the individual rights bundled up with copyright.
• Option 2. Start with what users may do with a work and then whether you grant them permission.
• Option 3. Start with current copyright licensing practice and how copyright gets bundled and used by licensors currently.

I see options 2 or 3 as the only real way to go. Starting with copyright law (Option 1), and expressing the rights – such as simply “distribution” – paints with entirely too broad a brush. To express a permission in terms of “distribution” misses the fine grained control that copyright gives rightsholders.

For example, industry practice (say in the movie industry) often break down the broad distribution right into very fine grained levels, such as:

• by geographic region – North America market versus European market
• by media type – theatrical vs satellite rights vs DVD rights
• by time – licenses last for set number of years

Option 1 – starting with copyright law – also has a further wrinkle: What copyright law do you use? Copyright consists of national rights harmonised by international treaties. The Berne Convention (or rather, Berne via TRIPs) sets a floor and not a ceiling, and member states have fairly wide variation in how the implement and enforce it. Using Berne as a “copyright law for the global internet” may be tempting but is inaccurate – 171 countries on the internet mean 171 different sets of copyright law. One specific right such as “distribution” means in one place may mean something different somewhere else, and you have to find ways to express both of those differences (though that is not to say that this can’t be done or that semantic web technologies aren’t addressing the problem of different definitions).

Options 2 and 3 admittedly aren’t too far apart from each other. Mainly I see this as a difference in tone rather than a deep divide:

• Option 2 starts with the hypothetical user and asks what could he or she possibly do with the work, versus
• Option 3 starts with industry practice in licensing and asks how do licensors typically license their works.

I think Option 3 is probably the more practical of the two, as while copyright law may allow super fine grained control at times, the key is what level of control most rightsholders usually exercise and how they bundle those rights. Mechanical rights, for example, are the name given by the industry to the right to reproduce and distribute a music CD, but aren’t a single right granted by statute.

Either way, more fine grained expressions of copyright will get built into the next generation of web technologies – indeed this has already started with ccREL and others. Starting with existing copyright practice and building out from there seems to make the most sense to me.

YMMV

Commercial versus Non-commercial Use

Defining the difference between “commercial” and “non-commercial” can be extremely difficult. Parliament considered and ultimately rejected a proposal to add “non-commercial” to a fair dealing exception during the 1988 revision because of this difficulty. [Footnote 1.] One American court, in relation to a fair use analysis, has stated that the problem with this distinction is that it “somewhat unrealistically paints the world into two corners.” [Footnote 2].

Creative Commons-style licenses, with their attendant restrictions on non-commercial use, are too new to have developed any case law construing the meaning of the term as used in the license. The question of construction of “non-commercial” in relation to Creative Commons (CC) and similar licenses may need to be focused on what the licensor (the author) intends when she uses the term “non-commercial” and what the users think when they read the restriction. When users, both as licensors and as licensees, use the term, do they refer to:

• The use of the work or the status (as a non-profit) of the organisation using it?
• Direct or indirect compensation?
• Monetary or non-monetary compensation?
• A Continental-style private copying exception?

Commercial/non-commercial issues in relation to fair dealing and fair use may not be the best place to start because they have different public policy concerns. Fair dealing and fair use as a policy balances the property rights of the copyright holder with the general public interest. The point of a Creative Commons-style license is not to grant users rights that they already have, but to grant additional rights. Fair dealing and fair use do, however, help to illustrate some of the problems with the term “non-commercial” in relation to the four areas above.

UK copyright law has only recently included the term “non-commercial” in relation to s. 29, the research and private study exception—it was added as part of the implementation of the Information Society Directive. [Footnote 3]. The statute, however, neglects to define the term. The Directive doesn’t categorically define the term either, but it does provide that whether an act is non-commercial “should be determined by that activity as such” and that “the organisational structure and the means of funding concerned are not the decisive factors in this respect.” [Footnote 4]. This is a definition based more on the use of the work rather than the status of the organisation using it—though status is still a factor. This formulation also tracks the American use of the term. [Footnote 5]. It is important to note though that the phrase “non-commercial use” to a layperson may indicate a general right to use by non-profit entities, even though the term is not used in that manner by other law.

Because s. 29 does not define the term, one treatise notes that commercial/non-commercial should be used with their “ordinary meanings”; in other words, a dictionary definition. [Footnote 6]. A dictionary definition also fits into the contract or contract-like nature of a copyright license. The Oxford English Dictionary, in relevant part, defines commercial as “[e]ngaged in commerce; trading”; “[h]aving reference to, or bearing on commerce”; and “looking toward financial profit.” [Footnote 7]. The OED definition sets up a rather broad scope for commercial activities; covering “any activity conducted with a view to making a profit.” [Footnote 8]. This definition raises the issue of whether this includes direct or indirect compensation as profit, and whether that compensation needs to be monetary or non-monetary.

Selling an object for direct profit plainly fits into the commercial category. Outside of this simple case, including indirect compensation into the analysis incorporates a wide variety of activities into the term “commercial”. In the United States, where a body of case law exists dealing with this distinction in relation to fair use and copyright, the Supreme Court states that the question is “whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” [Footnote 9]. This view places virtually any use for which there is a market as a commercial use—the “profit” is saving money by not paying the usual price. The “market view” is the same view expressed when referring to the rights holder’s “normal exploitation” of a work, which is specifically demonstrated in relation to database rights in the EU [Footnote 10] or more generally as part of the Berne convention’s “three step test”. [Footnote 11]. The “market view” is also present when examining the encroachment of licensing for photocopies in academia in the UK.

Including non-monetary compensation also broadens “commercial” to include a wider array of activities. In both a U.S. and a Finnish case, a warez group’s web site was seen as commercial because members contributed goods or services in order to receive copyrighted works. [Footnote 12]. This logic has the potential of making online file trading on a quid-pro-quo basis a commercial activity. Because most of the goods involved with Creative Commons-like licenses are digital and presumably freely available on the internet, it is not clear how much of an issue this would be—it would seem to be difficult to barter for a good that is freely available from elsewhere.

UK law doesn’t provide for a general right to make private copies, and allowing non-commercial use would seem to track the Continental concept of private copying—Article 5(2)(b) of the InfoSoc directive. This term could explicitly permit the technically-infringing-but-as-a-practical-matter-unenforceable activities that many people perform every day. Rather than have these activities infringe, Continental systems institute equipment levies to ensure that rights holders receive “fair compensation”. Problems with this framework may arise in the future as technology allows more and more enforcement of restrictions on these everyday activities.

Conclusion and Recommendations

In the end, judicial construction of the term “non-commercial” would likely involve an inquiry into all of the circumstances surrounding a transaction and then considering all of the factors together. Using the market or normal exploitation approach and including non-monetary compensation greatly extends the reach of what is “commercial”. This has two primary affects: (1) many activities may be seen as commercial that were not intended by licensor or are not obvious to the licensee, and (2) licensors have a greater chance of being able to stop an activity because of the broad reach of their potential markets. The market or normal exploitation form of commercial use therefore only gives up uses which are difficult to enforce and don’t currently earn revenue. This approach, however, seems rather narrow.

CC-style licensing concentrates on more liberal notions of use and distribution—users are encouraged to distribute the works in ways that affect the market or normal exploitation—such as P2P systems. Limiting the term commercial to direct monetary compensation may better fit the goals of Creative Commons-like licensing, but, as demonstrated, it is not necessarily the only reading of the term. Creative Commons recognises this issue, and as an example, the generic (US) Creative Commons license defines non-commercial as:

[A]ny manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works. [Footnote 14 - JH note that the licensing structure has changed since 2005 but the language has stayed the same].

The above clause attempts to limit “non-commercial” to direct monetary compensation, and to eliminate any judicial construction of the term to include exchanging works as payment.

It may be advantageous to determine what users feel should be the standard for non-commercial use. Some situations that might be indicative of their views on the subject might be:

• Whether they would consider a website hosting CC-licensed content with advertising, such as Google Ad Words, as non-commercial use.
• Whether they would consider Pay Pal tip jars or other similar donation programs as non-commercial.
• Whether recovering only the actual costs of distribution would be non-commercial, such as charging the cost of a blank CD-R for physical distributions of CC-licensed music.
• Whether recovery of actual operating costs for hosting the material (bandwidth charges, etc) would be considered non-commercial.
• Whether a television station could broadcast CC-licensed material without including advertisements.
• Whether a teacher copying the work for distribution to a class would be non-commercial.
• Whether advertising for a non-profit would be non-commercial.

These situations would help determine what users, both licensors and licensees, mean when they encounter the term “non-commercial”, and consequently whether the licenses fit their intent.

Footnotes.

1. For CDPA s.29 Research and Private Study. See Cornish and Llewelyn at 443, 511
2. Salinger v. Random House, Inc. , 650 F. Supp. 413, 425 (S.D.N.Y. 1986); See Nimmer on Copyright 13.05 [A][1][c]. The court was addressing fair use factor, 17 U.S.C. 107(1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
3. Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
4. Id. Recital (42).
5. Nimmer on Copyright 13.05 [A][1][c].
6. Copinger and Skone James on Copyright 9-28.
7. OED.com “commercial”.
8. Copinger and Skone James 9-28.
9. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).
10. The British Horseracing Board Ltd v. William Hill Organisation Ltd (Case C-203/02) 9 November 2004.
11. Exceptions must (1) be confined to certain special cases; (2) not conflict with the normal exploitation of a work; and (3) not unreasonably prejudice the legitimate interests of the right holder.
12. United States v Slater, 348 F3d 666 (2003, CA7 Ill); Adobe Systems Inc. and Others v. Tomi Kristian Kaajamaa Supreme Court, Helsinki 1 November 1999 [2001] E.C.D.R. 1.
13. See Egypt v Gamal-Eldin [1996] 2 All ER 237, EAT(construing commercial activity as a balancing test in relation to sovereign immunity).
14. “Attribution Non-commercial” 4(b) @: <http://creativecommons.org/licenses/by-nc/2.0/legalcode> [JH addition in 2008 - note that the new "generic" is the unported licence available at http://creativecommons.org/licenses/by-nc/3.0/legalcode ]

http://ur1.ca/y41

This survey is very important as people have a difference of opinion on some of the boundaries of what non-commercial means. For a public licence, such as Creative Commons licences, having community input on the meaning of more ambiguous terms such as this is key to building a common understanding: It keeps the “Commons” part a common understanding and not a difference in law for people to argue over.

I have some background research on the non-commercial termm that I’ll try to post over the next few days.

We are pleased to release for public comment the next beta draft of CC0 Waiver, which comes several months after the last draft of CC0 was published in April. You can view the beta draft 3 at ccLabs.

While this draft is being released later than planned (more on that, below), we are very excited about the progress we’ve made on CC0 in the interim. We look forward to receiving your comments and suggestions for improving CC0 still further. Read on to hear more about what has changed and our plans for finalizing CC0 this fall.

Full draft here.

Information Governance Conference 2008

Information governance has rapidly become an integral part of organisational strategy in both the public and private sector. Organisations of all types and size are generating ever greater volumes of sensitive data and that data must be handled lawfully to avoid damaged reputations and unnecessary costs. Breaches of the law can result in enforcement notices, fines and even criminal convictions for directors and managers.

The SCL Information Governance Conference tackles this fastmoving subject to provide authoritative, practical advice for advisers and their clients. The panel of expert speakers will give an insider’s view of the challenges facing organisations and distil that collective experience into practical know how on information governance.

Of particular interest to readers (and myself) is a session on Creative Commons concepts and personal data:

15:55 – 16:35
Application of DRM/Creative Commons Concepts to Confidential/Personal Information
Roger Bickerstaff, Bird & Bird

* The need for individual control over data usage
* How can DRM work for non-corporate information?
* Can the Creative Commons concept be applied to non-copyright information?
* Enforcement/jurisdiction/monitoring

Several people have either approached me directly or mentioned on various sites the application of the tools we are developing for open data at Open Data Commons to be applied in the personal data space. I think that there are some distinctly different issues involved as privacy issues have a different set of rules than straight IP issues, as well as of course a distinct set of different concerns (privacy). It will be great to get such a distinguished perspective on some of the issues. More of course, after the event.

The system works by scanning the iris as the eye is put to the viewfinder when the shot is composed.

So this is a combo of digital watermarking technologies and iris recognition hardware and software that produces images that can be linked back to the photographer. Digital watermarks are invisible information hidden within a digital file that can be used to identify information about the digital file. You can use them in online copyright enforcement to track the origin and subsequent usage of content. The iris scanning watermark idea raises some interesting privacy and data protection issues, but those comments are for another blog. In terms of online copyright enforcement, it looks like the main advantage is an easy way to watermark images as they are created so that they can later be tracked.

Watermarks can fall into what is often called “digital rights management” in that it can be used to associate the rights granted with that digital file. A much narrower area of DRM are TPMs — technological protection measures that try to actually restrict what can and can’t be done with a work through the use of “digital locks”. Watermarks are much less invasive in that they can only associate information with a digital file, and don’t involve — on their own — locking what can be done with the file.

Creative Commons licences don’t allow for the use of technical means of restricting the rights granted to users of the work. In section 4a of the unported Attribution license (CC BY 3.0 unported), for example, it states:

You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License.

However, as I’ve argued elsewhere in an article titled “Can TPMs Create a Commons? Looking at Whether and How TPMs and Creative Commons Licences can Work Together.” [SSRN] [Indicare article], watermarking technologies could fit with use of CC licences:

Watermarking … is the least invasive method and thus most likely to comport both philosophically and legally with the Creative Commons family of licenses. Simply placing some information in the work would not hamper the ability to copy and distribute the work. They would perhaps be most useful for those using the “No Derivative” CC license. Watermarking could allow for users to authenticate the integrity of the content and for content creators to track use. The use information can then be passed on to funding agencies or used internally in order to assess the usefulness of the licenses in encouraging re-use. These watermarks could also help prevent commercial use for organizations using the non-commercial (NC) option.

So from a CC/Flickr perspective, you could take a photo with one of these Canon iris cameras, upload your photos to Flickr and select a CC licence, such as the non-commercial no-derivatives version (CC-BY-NC-ND), and you would have an additional tool to try to enforce your rights if they were used without your permission by a commercial image company.

English subtitles were made available for the film on its release, a gambit which has paid off as almost immediately people began translating them into their own native languages. So far there are working subs available in Russian (tnx Beast + Lord Russian Nightmare), Finnish (tnx Janne Peltola), Italian (tnx to Chiara Micheli), German (thx Christian), Spanish (tnx Habladorcito) and Portuguese (tnx Felipe) on the website; Dutch, French, and Greek translations are on their way.

This is something that I identified and commented on in my article “Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law” [via SSRN] [via SCRIPTed]. Anime fansubs are fan translated and subtitled versions of Japanese-language content (usually TV episodes). Fans obtain raw content via Japanese p2p networks or through other means and then, often in a distributed production process much like open source, subtitle and encode the resulting content for distribution:

The English-language fansubs produced by fans aimed at the American market, of course, serve all parts of the English-reading world. In addition, English, either as a first or second language, is more widely known than Japanese, and so many fansub groups that translate into languages such as Turkish use the English fansub as a base for their translations.[171] Continuing to allow at least some English-language fansubs could be a way to expand the market for distributors intent on markets outside the U.S., whether English speaking or not.

Having an English version acts as a key that unlocks the door to greater distribution. However in the context of fansubs, this translation and distribution isn’t authorized. The legality of taking unauthorized content off of a p2p network and translating it and further distributing it is very doubtful.

Creative Commons licences that allow adaptations of the work allow for translation:

“Adaptation” means a work based upon the Work, or upon the Work and other pre-existing works, such as a translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or phonogram or performance and includes cinematographic adaptations or any other form in which the Work may be recast, transformed, or adapted including in any form recognizably derived from the original, except that a work that constitutes a Collection will not be considered an Adaptation for the purpose of this License.

The above is from the CC Attribution Unported licence [CC-BY], but is present in all six of the basic CC licences. CC has a “No Derivatives” option that prohibits adaptations as defined above, including translations. So licensing your work under Creative Commons only allow translations if you use:

• Attribution (BY)
• Attribution | Noncommercial (BY-NC)
• Attribution | ShareAlike (BY-SA)
• Attribution | Noncommercial | ShareAlike (BY-NC-SA)

So if you were going to distribute content and wanted to give permission to your users to translate your work into their own language — and use a CC licence to do it — you could use one of the above. There is another option however when considering one of the No Derivatives options that prohibit translation. You could have a supplementary licensing document that grants a specific right to translation, but not other adaptations. Just because you have placed the work under a No Derivative CC licence, doesn’t mean that you’ve given up the right to license derivatives. You could also, as I mentioned in an earlier post, not give permission up-front for translations but take a ‘light enforcement’ strategy when thinking about how to enforce your rights against unauthorized translations.

Some people prefer to allow limited access to their work without charge. One way to do this is by using a Creative Commons licence.

I thought that was pretty neat, though I’d like to see some description of open content licensing within the UK IPO site in order to give their users an orientation to what the CC licences are and how they work.

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 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.

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.

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.

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:

And the human readable summary for the CCZero waiver:

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

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.