The Creative Commons licenses are a set of legal tools that allow creators to share their works freely under some simple conditions. These licenses are intended to allow the flourishing of artistic, educational, scholarly, and expressive culture, and so the conditions on use of CC-licensed material are minimal. Someone who uses a CC license wants to share, and asks very little in return. For CC BY, credit for their work and acknowledgement of the license; for the other licenses, only a few conditions on how the work may be reused.
However, the simplicity of what is required to use a CC-licensed work should not be confused with unimportance.
A CC license on a published work is intended to be both an easily-followed guide to reuse *and* a sign of an author’s intentions. The health and sustainability of the commons depend on these intentions being respected. We believe it is important that reusers make their best efforts to comply with the terms and conditions of the license, and we support enforcement of the licenses when CC-licensed materials are being used without regard to those simple terms. Great care was taken by hundreds of legal experts around the world to ensure that the CC licenses are legally enforceable internationally, and we believe this robust legal backbone is central to the power and success of the CC license framework. At the same time, we are pleased that there has been such limited litigation around CC licensing over two decades of their use. Most disputes around compliance have been resolved outside of court, and we view this as a sign of a well-functioning commons.
In recent years, however, there has been an increase in threatened and actual litigation involving CC licensed works. A recent academic study of this phenomenon found that a single creator filed more than 40 lawsuits in U.S. courts claiming license violations in 2019-2020. One reason for the uptake in litigation likely relates to the proliferation of subscription services like Pixsy, which use automated tools to scour the web for instances of non-compliance to help creators enforce their copyrights. License enforcement can be lucrative because of the hefty penalties afforded by copyright law.
“License-enforcement-as-business model” is a perversion of the founding ideals of Creative Commons, which was intended to mitigate draconian copyright laws and penalties. Just as significant, aggressive enforcement of the licenses is harmful to the overall CC licensing endeavor. It lessens trust in CC licensed content by the reusing public, and it can result in problematic case law around the licenses as courts become increasingly frustrated by overly litigious licensors. In other words, aggressive license enforcement poses a threat to the commons.
In response, Creative Commons is releasing a collection of new resources designed to increase understanding of and compliance with the licenses, to establish community principles around license enforcement, and to help support both creators and reusers involved in licensing disputes. We view this as a first step in a wider, long-term effort to address what we see as the crux of this issue—making it easier to understand and comply with CC licenses. Everyone wins when more licensors want to license their works under CC licenses because they don’t feel it puts them at a disadvantage, and when more of the public feel safe using CC and that they won’t be unfairly penalized for mistakes.
The new resources will include:
- Statement of principles around license enforcement (draft below)
- A guide for creators who find that someone is infringing the CC license on their works
- A new marking guide for licensors with tips designed to make it easier for reusers to comply with the license conditions (in development)
- New interpretation from CC about “reasonable” attribution (in development)
- A set of resources for people who receive a demand letter enforcing a CC license (in development)
We release these new materials with the hope and expectation that you will help us adapt and improve them over time. What would make the licenses more understandable to you? Are there actions you think CC or CC licensors could take to make it easier to comply with the license conditions? When do you think enforcement of the licenses in court is appropriate? We look forward to hearing your input and to working together to ensure that enforcement of the licenses is fair to both licensors and licensees, and reinforces the commons rather than threatens it.
(DRAFT) Statement of Enforcement Principles
version 2, updated 21 September 2021
**Full text available for public comment in this Google doc. Please provide your input!**
Creative Commons licenses are copyright licenses, enforceable by law. While we believe that it’s important to respect the terms of CC licenses, enforcement of the licenses should be a way of making sure that creators are treated fairly, not a scheme to trap well-meaning reusers who would be willing to correct errors. If users are afraid to use CC-licensed material because the cost of error is unfairly high, CC’s goals are not met.
In brief, these three principles should guide enforcement of the CC licenses:
- The primary goal of license enforcement should be getting reusers to comply with the license.
- Legal action should be taken sparingly.
- Enforcement may involve monetary compensation, but should not be a business model.
These principles, explained more fully below, are designed to articulate the values and priorities of what CC believes is license enforcement that upholds the spirit and intent of the licenses. However, CC is not a copyright holder for the vast majority of CC licensed works,so it has limited capacity to put these principles into practice directly.
Here are some ways we hope these principles can be useful:
- If you are a large rightsholder of CC-licensed works, you can make a public commitment to enforcement in line with these principles to reassure reusers.
- If you are a platform that accepts uploads of CC-licensed works by third parties, you can require uploaders to agree that they will enforce copyrights of their works in line with these principles, and you are encouraged to require 4.0 licenses for uploaded works.
- We hope that these principles will create expectations for licensors and licensees about how CC intends for the licenses to be enforced, so that licensors are fully informed when they license works, and disputes can be resolved more quickly and amicably.
- Most resolution of disputes over copyright has happened outside the courts, by licensors and licensees communicating to resolve their issues. Where a dispute does reach the courts, we hope that this document can be used by the parties as guidance on how the licenses are intended to function.
These principles are based heavily on the free software community’s Copyleft Compliance Projects, a set of guidelines endorsed by many of the key organizations enforcing free software copyrights. (Ours here differ in some important ways, but have similar intent.)
1. The primary goal of license enforcement should be getting reusers to comply with the license.
The intent of the CC licenses is for the licensed work to be used and shared so that everyone may benefit from it, knowing that they too are empowered to use and share it. Taking down a work may stop a copyright infringement, but it also stops distribution of the work. In a successful resolution of a dispute over CC licensing, the work continues to be shared and the license conditions are followed. This is particularly applicable where a reuser has clearly attempted to comply but done so improperly or incompletely; a successful resolution should involve the reuser doing what they already intended to do.
License Termination: CC licenses prior to version 4.0 said that licensee rights were terminated upon breach of the license. However, version 4.0 includes a provision first adopted by many other license stewards in the free software community, allowing for automatic reinstatement if someone in violation of terms corrects the error within 30 days of learning of it. As a licensor, you may always choose to reinstate a license that has been terminated, no matter which version of the license you’ve used. When you contact someone about a violation of the pre-4.0 license terms and they take the necessary steps to correct their errors, it is recommended that you follow the 4.0 practice of reinstating the license.
2. Legal action should be taken sparingly.
The best way to win a court case is never to have it. Litigation is expensive and difficult, even for an “easy win.” And most people who violate the license terms are confused or ignorant about how the licenses work, rather than intentionally misusing licensed materials. It can also be difficult for good-faith reusers to make judgments about when fair use or another exception or limitation to copyright applies, and some may fail to comply with license terms because they believe their use falls under a limitation or exception to copyright.
The best and least costly way for all parties to resolve disputes is for the errors to be corrected and any identifiable harms repaired as best as possible without legal action. We recognize that in some cases this isn’t sufficient and the dispute cannot be resolved this way, especially where a license violation is intentional or the reuser is unresponsive, but these situations are the exception to the rule.
3. Enforcement may involve monetary recovery, but should not be a business model.
There are times when monetary compensation is an appropriate remedy for harm caused by someone failing to comply with a CC license. Sometimes, this relates to making the licensor whole for financial harm. For example, a licensor may seek monetary damages equal to the amount they would have requested in a negotiated license agreement permitting use outside of the CC license. Other times, monetary damages are an appropriate tool for deterrence. For example, a damage award may be the only way to get a repeat offender to respect the terms of the CC license.
But damages awarded for copyright infringement can sometimes be far out of proportion to the magnitude of the harm, and often inappropriate in the case of a good faith reuser. When enforcement becomes profitable, especially when licensors act in a way that suggests they want reusers to violate the license so they can collect fees, it crosses over into trolling and runs counter to these principles. (In particular, one characteristic of copyright trolling is overstating the possible statutory damages by basing the number on copies, rather than works, to encourage victims to pay more to make the claim go away.)
To be clear, these principles are not intended to help bad faith reusers avoid compliance. Nor should they be used to diminish the importance of respecting license conditions, even when the harm caused by non-compliance is not monetary. The CC licenses reflect a deep-seated belief that authors deserve credit for their work, consistent with moral rights in force around the world. To that end, enforcement measures should include steps to remedy past harm. As far as possible, anyone who has already received a copy of the infringing work should receive any information that was previously omitted, such as information about the author and the license; this should generally be the responsibility of the reuser who omitted the information.
CC believes that enforcement of its licenses is an important part of ensuring that they are meaningful for creating a sharing commons. But if CC license enforcement is perceived as punitive or profit-seeking rather than fair, the whole community suffers. Creative Commons licenses are designed to make sharing and reusing work easy, in contrast to the litigious, restrictive culture of standard all-rights-reserved copyright. A reasonable approach to enforcement that focuses on carrying out the original intent of the licensor and is fair to all parties is most likely to sustain a healthy commons.