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.
(This is just one part of CC’s strategy for addressing license enforcement.)
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, or an appropriate way to address a reuser who has profited from their misuse.
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.