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Creative Commons for Educators and Librarians/Chapter 4

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 4 

Using CC Licenses and
CC-Licensed Works

Now that you know how the CC licenses work and how they are designed, you are ready to use CC licenses and CC0 for your own work, and reuse CC-licensed works created by others.

This chapter covers what you need to know as a CC licensor and as a reuser. When your own CC-licensed work incorporates CC-licensed work made by others, you are both!

This chapter has five sections:

  1. Choosing and Applying a CC License
  2. Things to Consider after CC Licensing
  3. Finding and Reusing CC-Licensed Work
  4. Remixing CC-Licensed Work
  5. Additional Resources

4.1 | CHOOSING AND APPLYING A CC LICENSE
The act of applying a CC license is easy, but there are several important considerations to think through before you do.

FIGURE 4.1 CC BY License Icon

CC BY License Button. Trademark:
Creative Commons.

​LEARNING OUTCOMES
  • Name the most important considerations before applying a CC license or CC0
  • Apply a license using CC’s License Chooser and a CC0 using CC’s Public Domain Dedication
  • Evaluate which license to apply based on the relevant factors

THE BIG QUESTION: WHY IT MATTERS
What should creators consider before applying a CC license or CC0 to their work? There are several options for creators who choose to share their work by using CC. There are also many things to think about before applying any CC license or CC0, including whether you have all the rights you need and if not, how you must indicate that to the public.

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
How would you go about choosing a particular CC license for your work? Do you know how to go about actually attaching a license to your work once you have chosen one? What if you change your mind about the license?

Acquiring Essential Knowledge
Before you decide that you want to apply a CC license or CC0 to your creative work, there are some important things to consider:

  • The licenses and CC0 are irrevocable. The word irrevocable means that a legal agreement cannot be canceled. This means that once you apply a CC license to a work, that license applies to the work until the copyright on the work expires. This aspect of CC licensing is highly desirable from the perspective of reusers because they can be confident that the creator cannot arbitrarily pull back the rights granted them under the CC license.
    • Because the licenses are irrevocable, it is very important to carefully consider your options before deciding to apply a CC license to a work.
  • You must own or control copyright in the work. You should control copyright in the work to which you apply the CC license. For example, you don’t own or control any copyright in a work that is in the public domain, and you don’t own or control the copyright to an Enrique Iglesias song. ​Furthermore, if you created the material in the scope of your employment, you may not be the holder of the rights and may need to get permission from your employer before applying a CC license to it. Before licensing, be mindful about whether you have copyright to the work to which you’re applying a CC license.

WHICH CREATIVE COMMONS LICENSE SHOULD I USE?
The six CC licenses provide a range of options for creators who want to share their work with the public while still retaining copyright. The best way to decide which license is appropriate for you is to think about why you want to share your work, and how you hope others will use that work.

For example, here are a few questions to consider:

  • Do you think people might make interesting new works out of your creation? Do you want to give people the ability to translate your writing into different languages, or otherwise customize it for their own needs? If so, then you should choose a license that allows your work to be adapted.
  • Is it important to you that your images are able to be incorporated into Wikipedia? If so, then you should choose either CC BY, BY-SA, or CC0, because Wikipedia does not allow images licensed under any of the NonCommercial or NoDerivatives licenses except in limited circumstances.
  • Do you want to give away all of your rights in your work so that it can be used by anyone in the world for any purpose? Then you might want to think about using the Public Domain Dedication tool, CC0.

If you need some help deciding which license might be best for you, this flowchart from CC Australia might be useful (please note that the information it contains is not legal advice): see figure 4.2 or go to http://creativecommons.org.au/learn/fact-sheets/licensing-flowchart/.

HOW DO I APPLY A CC LICENSE TO MY WORK?

Once you’ve decided you want to use a CC license and know which license you want to use, applying it is simple. Technically, all you have to do is indicate which CC license you are applying to your work. However, we strongly recommend including a link (or writing out the CC license URL, if you are working offline) to the relevant CC license deed (e. g., https://creativecommons.org/licenses/by/4.0). You can do this in the copyright notice for your work, on the ​

FIGURE 4.2 Which Creative Commons license is right for me?

Image from Creative Commons Australia: http://creativecommons.org.au/learn/fact-sheets/licensing-flowchart/
Author: CC Australia | CC BY 3.0 | Desaturated from original

​
FIGURE 4.3 Screenshot of the footer of BC Open Textbooks

footer of your website, or any other place that makes sense in light of the particular format and medium of your work. The important thing is to make it clear what the CC license covers and locate the notice in a place which makes that clear to the public. See “Marking Your Work with a CC License” (licensed CC BY 4.0 and available at https://wiki.creativecommons.org/wiki/Marking_your_work_with_a_CC_license) on the Creative Commons website for more information.

Indicating which CC license you choose can be as simple as the notice from the footer of BC Open Textbooks (https://open.bccampus.ca/find-open-textbooks), shown in figure 4.3.

If you are on a platform like Medium or Flickr, you should use the built-in CC license tools on the platform to mark your work with the CC license you choose.

If you have a personal blog or a website, we recommend using the CC license chooser to generate code that identifies your chosen license. That code can be copied and inserted into your work online.

You should take some time to play around with the CC license chooser, at https://creativecommons.org/choose/, now (figure 4.4). After you select the boxes that indicate your preferences, the chooser generates the appropriate license based on your selections. Remember, the license chooser is not a registration page, it simply provides you with standardized HTML code, icons and license statements.

In figure 4.4, do you see the text and icon just above the code? That text/links can also be copied and pasted onto your work to mark the work with a CC license.

If you want to mark the work in a different way or need to use a different format like closing titles in a video, you can visit https://creativecommons.org/about/downloads/ and access downloadable versions of all of the CC icons.

How to Apply a CC0 License

Like the licenses, CC0 has its own chooser. If you want to dedicate your work to the public domain, you can go to https://creativecommons.org/choose/zero/waiver. Complete the required fields, agree to the terms, and then get the metadata to mark your work with a CC0 license.

​
FIGURE 4.4 CC License Chooser
​Whatever method you use to mark your content, there are several important steps for proper CC license marking. Here are three cases in which you will mark CC-licensed works:
  1. Marking your own work so that others can easily discover it, reuse it, and give you credit or attribution. The best practice for marking your work is to follow the TASL approach for your own portions of the content, and for the portions of the content created by others:
    • T = Title
    • A = Author (tell reusers who to give credit to)
    • S = Source (give reusers a link to the resource)
    • L = License (provide a link to the CC license deed)
    When providing attribution, the goal is to mark the work with full TASL information. When you don’t have some of the TASL information about a work, do the best you can and include as much detail as possible in the marking statement.
    You should note that starting with Version 4.0, the licenses no longer require a reuser to include the title as part of the attribution statement. However, if the title is provided, then Creative Commons encourages you to include it when attributing the author.
    For more examples of how to mark your own work in different contexts, spend some time looking through Creative Commons’ extensive marking page “Marking Your Work with a CC License” (licensed CC BY 4.0 and available at https://wiki.creativecommons.org/wiki/Marking_your_work_with_a_CC_license). See the caption of figure 4.5 as an example of marking an image with TASL information. It is a good example of CC marking because TASL with all appropriate links is provided in the attribution statement.
  2. Indicating if your work is based on someone else’s work. If your work is a modification or adaptation of another work, you should indicate this and provide attribution to the creator of the original work. You should also include a link to the work you modified and indicate what license applies to that work. Figure 4.6 is an example of this.
  3. Marking work created by others that you are incorporating into your own work. Figure 4.7 is an example here from a Saylor Academy course. ​

FIGURE 4.5
Creative Commons 10th birthday
celebration in San Francisco

Image from Flickr: flickr.com/photos/sixteenmilesofstring/8256206923
Author: tvol | CC BY 2.0
Desaturated from original

This work, “90fied,” is a derivate of “Creative Commons 10th Birthday Celebration San Francisco” (flickr.com/photos/sixteenmilesofstring/8256206923) by tvol (https://www.flickr.com/photos/sixteenmilesofstring/), used under CC BY (https://creativecommons.org/licenses/by/2.0/). “90fied” is licensed under CC BY by [Your name here].

FIGURE 4.6
Example of a modification of
another work and the attribution
you would apply
Desaturated from original

In every case, the goals are the same: you want to make it easy for others to know who created which parts of the work. To do this, you should (1) identify the terms under which any given work, or part of a work, can be used, and (2) provide information about the works you used to create your new work or that you incorporated into your work.

Final Remarks

When applying a CC license to a work, you should (1) use the CC license chooser to determine which CC license best meets your needs. Apply the license code if possible, or copy and paste the text and links provided. (2) If you are using an online platform, use the built-in CC license tools to mark your work with a CC license. (3) Mark your work and give proper attribution to others’ works using the TASL approach. ​

Introductory Statistics:

  • Provided without attribution as requested by the work's original creator or licensor.
  • Licensed under CC BY-NC-SA 3.0

Khan Academy Resources:

Al Greene/SOPHIA Resources:

Boundless Resources:

Susan Dean and Barbara Illowsky's Collaborative Statistics:

FIGURE 4.7 Example of marking works created by others

There is no single answer for which CC license is the best one for your work. It is important to remember why you are sharing your work and what you hope others might do with it, before making your CC license choice.

4.2 | THINGS TO CONSIDER AFTER CC LICENSING
Applying a CC license alone is not enough to ensure that your work is freely available for easy reuse and remix. Licensors must also consider additional factors that affect the accessibility and usability of their works for future users.

LEARNING OUTCOMES

  • Explain why CC discourages changing the license terms
  • Explain how a paywall affects CC-licensed content
  • Describe why the technical format of content is significant
  • Describe what happens when someone changes their mind about CC licensing
​THE BIG QUESTION: WHY IT MATTERS

One of the most important aspects of Creative Commons licenses is that they are standardized. This makes it much easier for the public to understand how the licenses work and what reusers have to do to meet their obligations.

But CC licenses do not apply to works in a vacuum. CC-licensed works usually live on websites that have their own terms of service. Or sometimes, these works are not in formats that make it easy to reuse or adapt them. And the works are often available in hard-copy form for a price.

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Have you ever found a CC-licensed work that you weren’t easily able to copy and share? What made it hard to reuse as intended? Was it an issue of technical format, or were there access restrictions on the work, or something else?

Acquiring Essential Knowledge
Creative Commons licenses are standardized licenses, which means the terms and conditions are the same for all works subject to the same type of CC license. This is an essential feature of their design, enabling the public to remix CC-licensed works. It also makes the licenses easy to understand.

But people and institutions that use the licenses have diverse needs and wants. Sometimes creators want slightly different terms rather than the standard terms that CC licenses offer.

Creative Commons strongly discourages people from customizing open copyright licenses because this creates confusion, requires users to take the time to learn about how the custom license differs, and eliminates the benefits of standardization. If you change any of the terms and conditions of a CC license, you cannot call it a Creative Commons license or otherwise use the CC trademarks. This rule also applies if you try to add restrictions on what people can do with CC-licensed work through your separate agreements, such as website terms of service. For example, your website’s terms of service can’t tell people they can’t copy a CC-licensed work (if they are complying with the license terms). You can, however, make your CC-licensed work available on more permissive terms and still call it a CC license. For example, you may waive your right to receive attribution.

Creative Commons has a detailed legal policy, Modifying the CC Licenses, (licensed CC BY 4.0 and available at https://wiki.creativecommons.org/wiki/Modifying_the_CC_licenses) which outlines these rules. However, the best way to apply them is to ask yourself: “Is what I want to do going to make it easier or ​harder for people to use my CC-licensed work?” If the latter, then generally it’s a restriction and you can’t do it unless you remove the Creative Commons name from the work.

Note that all of the above applies to creators of CC-licensed work. You can never change the legal terms that apply to someone else’s CC-licensed work.

CHARGING FOR A CC-LICENSED WORK
The first part of this section dealt with the requirements connected to changing the legal terms on a CC-licensed work, whether by actually changing the license terms or using separate contracts to try to do so.

But what if you simply want to sell a CC-licensed work?

If you are the creator, then selling your work is always okay. In fact, selling physical copies (e. g., a textbook) and providing digital copies for free is a very common method for making money while using CC licenses.

Figure 4.8 highlights Cards Against Humanity, a card game available under a Creative Commons BY-NC-SA 2.0 license. Cards Against Humanity offers their cards decks online for free download but sells physical copies.

Charging for access to digital copies of a CC-licensed work is more difficult. It is permissible, but once someone pays for a copy of your work, they can legally distribute it to others for free under the terms of the applicable CC license.

FIGURE 4.8 Stack of Cards Against Humanity packs

Photo from Flickr: flickr.com/photos/jareed/9669594018/
Author: jareed | CC BY 2.0 | Desaturated from original

​If you are charging for access to someone else’s CC-licensed work—whether a physical copy or digital version—you have to pay attention to the particular CC license applied to the work. If the CC license includes the NonCommercial (NC) restriction, then you cannot charge the public to access the work.

MAKING YOUR WORK ACCESSIBLE
Formats: Simply applying a CC license to a creative work does not necessarily make it easy for others to reuse and remix it. Think about what technical format you are using for your content (e .g., PDF or MP3). Can people download your work? Can they easily edit or remix it if the license allows? In addition to the final polished version, many creators distribute editable source files of their content to make it easier for those who want to use the work for their own purposes. For example, in addition to the physical book or e-book, you might want to distribute files of a CC-licensed book that enable people to easily cut and paste the content into their own works.

DRM: Using a distribution platform that applies digital rights management (DRM), such as copy protection technology, to your work is another way you can inadvertently make it very hard for reusers to make use of the permissions in the CC license. If you have to upload your CC-licensed works to a platform that uses DRM, you should consider also distributing the same content on sites that do not use DRM.

Note that the CC licenses prohibit you from applying DRM to someone else’s CC-licensed work without their permission.

WHAT IF YOU CHANGE YOUR MIND ABOUT THE CC LICENSE?
Inevitably, there are creators who apply a CC license to a work and then later decide they want to offer that work on different terms. Even though the original license cannot be revoked, the creator is free to also offer the work under a different license. Similarly, the creator is free to remove the copy of the work that they placed online.

In these cases, anyone who finds the work under the original license is legally permitted to use it under those terms until the copyright expires. But as a practical matter, reusers may want to comply with the creator’s new wishes as a matter of respect.

​WHAT IF SOMEONE DOES SOMETHING WITH MY CC-LICENSED WORK I DON’T LIKE?

As long as users abide by the license terms and conditions, authors/licensors cannot control how their material is used. That said, all CC licenses provide several mechanisms that allow licensors to choose not to be associated with their material, or to uses of their material with which they disagree.

  • First, all CC licenses prohibit using the attribution requirement to suggest that the licensor endorses or supports a particular use.
  • Second, licensors may waive the attribution requirement, choosing not to be identified as the licensor, if they wish.
  • Third, if the licensor does not like how the material has been modified or used, CC licenses require that the licensee remove the attribution information upon request. (In Version 3.0 and earlier, this is only a requirement for adaptations and collections; in 4.0, this also applies to the unmodified work.)
  • Finally, anyone modifying licensed material must indicate that the original has been modified. This ensures that changes made to the original material—whether or not the licensor approves of them—are not attributed back to the licensor.
  • Furthermore, it is important to remember that:
    • The Commons is full of good people who want to do the right thing, so we rarely see much “abuse” of openly licensed works. Using CC licenses gives good, responsible people the freedom to use and build on your work.
    • Copyright and/or open copyright licenses don’t keep “bad” people from doing “bad” things with your work if they don’t care about copyright in the first place.

LEGAL CASES: OPEN EDUCATION
In the sixteen years since our licenses were first published, the number of lawsuits turning on the interpretation of a CC license has been extremely low, especially considering that more than 1.6 billion CC-licensed works are available on the Internet. CC licenses have fared incredibly well in court, and disputes are rare when compared to the number of lawsuits between the parties to privately negotiated, custom licenses.[1]

​In 2017–18 there were three legal cases that involved CC licenses: Great Minds vs. FedEx Office, Great Minds vs. Office Depot, and Philpot vs. Media Research Center. The outcomes of the court decisions for these three cases favored the enforceability of CC licenses and their role in enabling the sharing of content with the public.

Great Minds vs. FedEx Office and Great Minds vs. Office Depot
Two of the three cases were raised by Great Minds, a curriculum developer.[2] In these two cases, Great Minds received public funding from New York State to develop OER (open educational resources) for school districts, which the organization licensed under CC BY-NC-SA 4.0. Great Minds brought the court cases against commercial copy shops that were hired by school districts to reproduce NC-licensed OER. The OER were for school use, which qualified as a noncommercial purpose.

Great Minds made a common assertion in both cases: school districts are not allowed to outsource the reproduction of educational materials licensed under CC BY-NC-SA 4.0 to contractors (the contractors were the commercial print shops in these cases) that make a profit on those reproductions. Great Minds’ theory was that it was lawful for a school district employee to go to a copy shop and pay to use their copiers; however, if the same school employee paid the copy shop to hit “PRINT” instead, the copy shop is no longer working on behalf of, or under the direction of the school district—but is instead acting independently; therefore, the copy shop has to directly rely on its own NC license to make and charge a fee for the very same copies.

Because they had applied a noncommercial license to their OER, Great Minds claimed that the school districts working with the OER were not allowed to engage FedEx or Office Depot to reproduce the materials, and that because the copy shops had made a profit, they had violated the license. Importantly, Great Minds never alleged that the school districts’ use of the reproduced materials violated the noncommercial restriction of the license.

The central question in both cases was whether a licensee (a school district that is properly using the work for noncommercial purposes) may outsource the reproduction of the works to another entity that makes a profit on those reproductions, without the entity it pays becoming a copyright infringer under the NC license.

​In both cases, the district courts agreed with the copy shop and found that no copyright infringement or violation of the CC license had occurred. For additional details on the court cases, see the Additional Resources section at the end of this chapter.

Philpot vs. Media Research Center
The third case, Philpot vs. Media Research Center, Inc.,[3] involved Larry Philpot, who voluntarily shared two photographs on Wikimedia under a Creative Commons license. Philpot complained that Media Research Center (MRC) had infringed his copyrights when it published his photographs in articles without attribution.

Following discovery (the phase of litigation during which factual evidence is gathered), MRC filed a motion for a summary judgment asking the court to find that it had not infringed Philpot’s copyrights because it used the photos for purposes of news and commentary, and those uses constitute fair use under U. S. copyright law.

In its decision granting the motion for summary judgment, the U. S. District Court for the Eastern District of Virginia rejected Philpot’s argument that a “meeting of the minds” had to occur before the CC license used by Philpot applied.

The district court ultimately found that MRC’s uses of the two photographs constituted fair use under U. S. copyright law, and as a result MRC had not violated Philpot’s copyrights. The court concluded that because fair use applied, attribution under the CC license was not required, and so MRC had not infringed Philpot’s copyrights. Compliance with the license had not been violated because a copyright license does not apply where fair use applies.

Fair use eliminates the need to rely on or comply with a CC license. This is the core design of all CC licenses—CC licenses grant permission when permission is required under copyright law. They communicate the licensor’s intention to grant permission where permission is needed. And CC licenses are designed to be effective and enforceable without necessarily meeting the requirements of a contract. The law of contracts or obligations varies around the world, and there are some legal systems that may treat CC licenses as enforceable under the law of obligations. This court correctly determined that under U. S. law the licenses effectively grant permission without needing to meet the formal requirements of a contract because the intention to grant permission is all that is needed.

​Final Remarks

Sharing your content using Creative Commons licenses is generous, but that alone is not enough to make it easy for others to reuse and remix your work. You should spend some time thinking from the perspective of someone who finds your shared content. How easy is it for them to download, reuse, and revise it? Are there legal or technical obstacles that make it difficult for them to do the things the CC license is designed to allow?

4.3 | FINDING AND REUSING CC-LICENSED WORKS
The “knowledge commons” of CC-licensed and public domain works is a plentiful resource that is available to all of us. But when you draw from it, remember to give credit to the creator and follow the other relevant license terms.

LEARNING OUTCOMES

  • Search for and discover CC-licensed works
  • Give proper attribution when reusing CC-licensed works

THE BIG QUESTION: WHY IT MATTERS
There are more than a billion CC-licensed works on the web. How do you find what might be useful to you? And once you do, what do you need to do when you reuse it?

There are several different ways to go about discovering CC-licensed works. Search engines can help you search across the web, or you can target particular platforms or sites. When you find a work to reuse, the most important thing to do is provide proper attribution to the work’s licensor.

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Think about a few of the CC-licensed works you have seen or interacted with. How did you find them? Did you know how to attribute the author if you shared the work?

Acquiring Essential Knowledge
When you are seeking CC-licensed works to reuse, there are several strategies to consider. One good starting point is CC Search ( ​https://search.creativecommons.org/), which is a tool that lets you search twelve major repositories of CC content online. Creative Commons is currently working on a project to improve the search tools it offers to help people discover works in the commons. Check out the prototype of a new version of CC Search at (https://ccsearch.creativecommons.org/), which lets you create and save lists of works you like and includes a tool that enables you to give attribution with a single click.

These search tools only scratch the surface of what is in the commons. Many platforms that enable the CC licensing of works shared on their sites also have their own search filters to find CC content, like OER Commons.

If there is a particular type of content you’re looking for, you may be able to narrow down particular sources to explore. Wikipedia offers a fairly comprehensive listing (licensed CC BY-SA 3.0) of many major sources of CC material across various domains at https://en.wikipedia.org/wiki/List_of_major_Creative_Commons_licensed_works.

You can also search for works under a particular CC license. Take a look at the Creative Commons overview of each license that includes examples of pro­jects and people using those licenses:

REUSING CC CONTENT
When you find a CC work you want to reuse, the single most important thing to know is how to provide attribution. All CC licenses require that attribution be given to the creator. (Remember that unlike the CC licenses, CC0 is not a license but a Public Domain Dedication tool, so it does not require attribution in its terms. Nevertheless, giving credit or citing the source is typically considered best practice even when not legally required.)

The elements of attribution are simple, though generally speaking, the more information you can provide, the better. People like to understand where CC-licensed works come from, and creators like to know that their names will remain attached to their works. If an author has provided extensive information in their attribution notice, you should retain it where possible.

​As mentioned in section 4.1, the best practice for attribution is applying the TASL approach.

T = Title
A = Author
S = Source
L = License

The attribution requirements in the CC licenses are purposely designed to be fairly flexible in order to account for the many ways content is used. A filmmaker will have different options for giving credit than a scientist publishing an academic paper. Explore the CC wiki page “Best Practices for Attribution” (licensed CC BY 4.0 and available at https://wiki.creativecommons.org/wiki/Best_practices_for_attribution). Among the options listed, think about how you would prefer to be attributed for your own work.

Creative Commons is also exploring ways to automate attribution. Explore this feature by going to the CC search tool (https://ccsearch.creativecommons.org) and searching for “golden retrievers.” Then, click on a couple of different photos to see how attribution is given, and experiment with the “copy credit as text” and “copy credit as HTML” functions.

The other main consideration when copying works (as opposed to remixing, which will be covered in the next section of this chapter) is the NonCommercial restriction. If the work you are using is published with one of the three CC licenses that includes the NC element, then you need to make sure that you’re not using it for a commercial purpose.

Remember, you can always reach out to the creator if you want to request extra permission beyond what the license allows.

Final Remarks
Attribution is arguably the single most important aspect of Creative Commons licensing. Think about why you want credit for your own work, even when it may not be legally required. What value does attribution provide to authors, and to the public who comes across the work online?

​4.4 | REMIXING CC-LICENSED WORKS

Combining and adapting CC-licensed works is where things can get a little tricky. This section will give you the tools you need.

LEARNING OUTCOMES

  • Describe the basics of what it means to create an adaptation
  • Explain the scope of the ShareAlike clause
  • Explain the scope of the NoDerivatives clause
  • Identify what license compatibility means and how to determine whether licenses are compatible

THE BIG QUESTION: WHY IT MATTERS
The great promise of Creative Commons licensing is that it increases the pool of content from which we can draw to create new works. But to take advantage of this potential, you have to understand when and how you can incorporate and adapt CC-licensed works. This requires careful attention to the particular CC licenses that apply, as well as a working understanding of the legal concept of adaptations as a matter of copyright.

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Have you ever wondered how to use a CC-licensed work created by someone else in something you are creating? Have you ever come across a CC-licensed work you wanted to reuse, but were unsure about whether doing so would require you to apply a ShareAlike license to what you created?

Acquiring Essential Knowledge
Copying a CC-licensed work and sharing it is pretty simple. Just make sure to provide attribution and refrain from using the work for commercial purposes if it is licensed with one of the NonCommercial licenses.

But what if you are changing a CC-licensed work or incorporating it into a new work? First, remember that if your use of someone else’s CC-licensed work falls under an exception or limitation to copyright (like fair use or fair dealing), then you have no obligations under the CC license. But if that is not the case, then you need to rely on the CC license for permission to adapt the work. The threshold question then becomes, is what you are doing creating an adaptation?

​An “adaptation” (or a “derivative work,” as it is called in some parts of the world) is a special term in copyright law.[4] It means a “modified” or “transformed” work that has been created from a copyrighted work and that is sufficiently original to itself to be protected by copyright. (It can thus be regarded as a “new” work.) Whether a transformed work differs sufficiently from the original work to be called an “adaptation” is not always easy to determine, though some bright lines do exist. Read the explanation on the Creative Commons site at https://creativecommons.org/faq/#what-is-an-adaptation about what constitutes an adaptation. Some examples of adaptations include a film based on a novel and a translation of a book from one language into another.

Keep in mind that not all changes to a work result in the creation of an adaptation—such as spelling corrections. Also remember that to constitute an adaptation, the resulting work must be considered based on or derived from the original. This means that if you use a few lines from a poem to illustrate a poetry technique in an article you’re writing, your article is not an adaptation because your article is not derived from or based on the poem from which you took a few lines. However, if you rearranged the stanzas in the poem and added new lines, then almost certainly the resulting work would be considered an adaptation.

Here are some particular types of adaptations to consider (some of them should be familiar from earlier sections of this book):

Fundamental principle

As of Version 4.0, all CC licenses, even the NoDerivatives licenses, allow anyone to make an adaptation of a CC-licensed work. The difference between ND licenses and the other licenses is that if an adaptation of an ND-licensed work has been created, it cannot be shared with others. So an individual can create adaptations of an ND-licensed work, but he/she is not allowed to share these with others, including the learners at an educational institution.

​If your reuse of a CC-licensed work does not create an adaptation, then
  • you are not required to apply a ShareAlike-license to your overall work if you are using an SA-licensed work within it;
  • the ND restriction does not prevent you from using an ND-licensed work; and
  • you can combine that CC-licensed material with other work as long as you attribute and comply with the NonCommercial restriction if it applies.

If your reuse of a CC-licensed work does create an adaptation, then there are limits on whether and how you may share the adapted work. We will look at those next. But first, a note about collections of materials.

ADAPTATIONS AND REMIXES VS. COLLECTIONS
Introductory note: The distinction between adaptations and collections is one of the trickiest concepts in copyright law. While there are many situations in which the differences are clear, there are also several ambiguous scenarios. The distinction between adaptations and remixes is even less clear; it varies by jurisdiction, and even within a given jurisdiction, a judge’s determination between the two can be subjective, since there are few definitive rules on which to rely.

In contrast to an adaptation or remix, a collection involves the assembly of separate and independent creative works into a collective whole. A collection is not an adaptation. One community member likened the difference between adaptations and collections to smoothies and TV dinners, respectively:

  1. Like a smoothie (figure 4.9), an adaptation or remix mixes material from different sources to create a wholly new work.
In an adaptation or remix (and a smoothie), you often cannot tell where one constituent work ends and another one begins. While this flexibility is useful for the new creator, it is still important to provide attribution to the individual parts that went into making the adaptation.
An example of an educational adaptation would be an open textbook chapter that weaves together multiple OER in such a way that the reader can’t tell which resource was used on which page. That said, the endnotes of the book chapter should still provide attribution to all of the sources that were remixed in the chapter. ​

FIGURE 4.9 CC Smoothie

Author: Nate Angell | CC BY
Derivative of “Strawberry Smoothie on Glass Jar” by Element5
(pexels.com/photo/strawberry-smoothie-on-glass-jar-775032/)
in the public domain, and various Creative Commons license icons
by Creative Commons
(https://creativecommons.org/about/downloads)
used under CC BY.
Desaturated from original

  1. Like a TV dinner (figure 4.10), a collection groups different works together; however, a collection keeps them organized as distinct and separate objects. An example of a collection would be a book that consists of a group of essays from different sources, or by different authors.
When you create a collection, you must provide attribution and licensing information about each of the individual works in that collection. This gives the public the information they need to understand who created what and which license terms apply to specific content. You can revisit section 4.1 “Choosing and Applying a CC License” to learn how to properly indicate the copyright status of third-party works that you incorporate into your new work.
When you combine material into a collection, you may have a separate copyright of your own that you may license. However, your copyright

FIGURE 4.10 CC TV Dinner

Author: Nate Angell | CC BY
Derivative of “tv dinner 1” by adrigu (https://flic.kr/p/6AMLDF) under CC
BY, and various Creative Commons license icons by Creative Commons
(https://creativecommons.org/about/downloads) used under CC BY.
Desaturated from original

​
only extends to the new contributions that you made to the work. In a collection, this is the selection and arrangement of the various works in the collection, and not the individual works themselves. For example, you can select and arrange pre-existing poems published by others into an anthology, write an introduction, and design a cover for the collection, but your copyright and the only copyright you can license extends to your arrangement of the poems (not the poems themselves), and your original introduction and cover. The poems are not yours to license.

WHAT HAPPENS WHEN YOU CREATE AN ADAPTATION OF A CC-LICENSED WORK OR WORKS?
General rules

  • If the underlying work is licensed under a NoDerivatives license, you can make and use changes privately, but you cannot share your adaptation with others, as discussed above.
  • If the underlying or original work is licensed under a ShareAlike license, then ShareAlike applies to your adaptation of it, and you must license the adaptation under the same or a compatible license. There is more on this below.
  • You need to consider license compatibility. License compatibility is the term used to address the issue of which types of licensed works can be adapted into a new work.
  • In all cases, you have to attribute the original work when you create an adaptation.

Scenarios
When creating an adaptation of a CC-licensed work, the simplest scenario is when you take a single CC-licensed work and adapt it.

The more complicated scenario is when you are adapting two or more CC-licensed works into a new work.

In both situations, you need to consider what options you have for licensing the copyright you have in your adaptation; this is called the Adapter’s License. Remember that your rights in your adaptation only apply to your own contributions. The original license continues to govern the reuse of the elements from the original work that you used when creating your adaptation. The “CC Adapters License Chart,” shown in figure 4.11, may be a helpful guide. When creating an adaptation of material under the license identified in the left-hand column, you may license your contributions to the adaptation under one of the licenses indicated on the top row if the corresponding box is dark gray. Creative ​

Adapter’s license chart Adapter’s license
BY-NC-ND BY BY-NC-ND BY-NC BY-NC-ND  BY-NC-SA  BY-NC-ND BY-ND BY-NC-ND BY-SA BY-NC-ND PD
Status of
original
work		 PD
BY
BY-NC
BY-NC-ND
BY-NC-SA
BY-ND
BY-SA

FIGURE 4.11 CC adapter’s license chart

Figure from Creative Commons: https://creativecommons.org/faq/#can-i-combine-material-under-different-creative-commons-licenses-in-my-work
CC BY 4.0 | Desaturated from original

Commons does not recommend using a license if the corresponding box is white, although doing so is technically permitted by the terms of the license. If you do, you should take additional care to mark the adaptation as involving multiple copyrights under different terms, so that downstream users are aware of their obligations to comply with the licenses from all rights holders. The light gray boxes indicate those licenses that you may not use as your adapter’s license.

HOW TO PICK YOUR ADAPTER’S LICENSE
If the underlying work is licensed with BY or BY-NC, we recommend that your adapter’s license include at least the same license elements as the license applied to the original. For example, if one adapts a BY-NC work, she will apply BY-NC to her adaptation. If one adapts a BY work, she could apply either BY or BY-NC to her adaptation.

If the underlying work is licensed with BY-SA or BY-NC-SA, your adapter’s license must be the same license applied to the original or a license that is designated as compatible to the original license. We’ll discuss license compatibility in more detail below.

Remember, if the underlying work is licensed with BY-ND or BY-NC-ND, you cannot distribute adaptations, so you don’t need to be concerned about what adapter’s license to apply.

​UNDERSTANDING LICENSE COMPATIBILITY

When people talk about licenses being “compatible,” they can be referring to several different situations.

One type of license compatibility involves the question of what licenses you can use for your adapter’s license when you adapt a work. This is what we discussed above. For example, BY-NC is compatible with BY, in the sense that one can adapt a BY work and use BY-NC on her adaptation.

By definition, the ShareAlike licenses have very few compatible licenses. All SA licenses after Version 1.0 allow you to use a later version of the same license on your adaptation. For example, if you remix a BY-SA 2.0 work, you can, and should, apply BY-SA 4.0 to your adaptation. There are also a small number of non-CC licenses that have been designated as CC Compatible Licenses for ShareAlike purposes. You can read more about this at https://creativecommons.org/share-your-work/licensing-considerations/compatible-licenses.

Another type of license compatibility relates to what licenses are compatible when adapting (more commonly referred to as “remixing” in this context) more than one pre-existing work. The remix chart in figure 4.12 may be a helpful guide in these circumstances. To use the chart, find a license that applies to one of the works on the left-hand column and the license that applies to the other

FIGURE 4.12 CC License Compatibility Chart

Figure from Creative Commons: https://creativecommons.org/faq/#can-i-combine-material-under-different-creative-commons-licenses-in-my-work
CC BY 4.0 | Destaurated from original

​work on the top right row. If there is a checkmark in the box where that row and column intersect, then the works under those two licenses can be remixed. If there is an “X” in the box, then the works may not be remixed unless an exception or limitation applies.

When using the chart, you can determine which license to use for your adaptation by choosing the more restrictive of the two licenses on the works you’re combining. While this technically isn’t your only option for your adapter’s license, it is best practice because it eases reuse for downstream users.

Final Remarks
It can be intimidating to approach remixing in a way that is consistent with copyright. In this section, hopefully you gained some tools for how to approach the task. The threshold question is whether an adaptation under copyright is created. Once that is answered, you have the information you need to determine what works from the commons you can incorporate into your work.

4.5 | ADDITIONAL RESOURCES
Additional Details on the Court Cases in Section 4.2 “Things to Consider after CC Licensing”
In the FedEx Office case, the decision was affirmed by the U. S. 2nd Circuit Court of Appeals, which stated: “In sum, the unambiguous terms of License permit FedEx to copy the Materials on behalf of a school district exercising rights under the License and charge that district for that copying at a rate more than FedEx’s cost, in the absence of any claim that the school district is using the Materials for other than a ‘non-Commercial purpose.’ The motion to dismiss is granted.”

With the Office Depot case, Great Minds claimed that the copy store had violated the BY-NC-SA 4.0 license for the same reasons FedEx Office did; however, Great Minds also claimed that because Office Depot had reached out to school districts to solicit reproduction orders, the solicitation was additional evidence of a license violation. The other difference with the FedEx Office case was that Great Minds and Office Depot had entered into a contract specifying that Office Depot could reproduce the same publicly funded educational materials for school districts and would pay royalties to Great Minds.[5]

The U. S. District Court for the Central District of California agreed with Office Depot, stating that it “concludes that the Creative Commons Public License unambiguously grants the licensee schools and school districts the ​right ‘to reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only,’ and does not prohibit the schools and school districts from employing third parties, such as Office Depot, to make copies of the Materials…. Because the schools and school districts are the entities exercising the rights granted under the Creative Commons Public License, it is irrelevant that Office Depot may have profited from making copies for schools and school districts.”

Furthermore, the district court stated: “The Creative Commons Public License at issue authorizes schools to: (1) reproduce and use the Materials for NonCommercial purposes, (2) expressly permits the schools to provide those Materials to the public ‘by any means or process,’ and (3) does not prohibit the schools from outsourcing the copying to third-party vendors. Because a licensee may lawfully use a third-party agent or contractor to assist it in exercising its licensed rights, absent contractual provisions prohibiting such activity, Great Minds has failed to allege that Office Depot’s conduct was outside the scope of the license and, thus, Great Minds’ claim for copyright infringement against Office Depot fails.” The court also addressed Office Depot’s alleged solicitation of school districts’ reproduction business. The court did not find the difference urged by Great Minds persuasive or that it should change the outcome. The Office Depot case remains pending on appeal before the U. S. 9th Circuit Court of Appeals as of August 15, 2019. Oral argument appears likely in November 2019, and a decision will follow.

More Information about Modifying the Licenses
The following two entries are selected “Frequently Asked Questions,” by Creative Commons. CC BY 4.0.

​More Information about Marking Licensed Works

More Information about License Compatibility

More Scholarship about CC Licenses

  • “Creative Commons Licenses Legal Pitfalls: Incompatibilities and Solutions,” by Melanie Dulong de Rosnay at the Institute for Information Law at the University of Amsterdam and Creative Commons Netherlands. CC BY 3.0 NL.
    This is a detailed report on the more nuanced and legal aspects of incompatibilities which apply in a variety of international applications: https://www.creativecommons.nl/downloads/101220cc_incompatibilityfinal.pdf.
  • “User-Related Drawbacks of Open Content Licensing,” by Till Kreutzer in Open Content Licensing: From Theory to Practice, edited by Lucie Guibault and Christina Angelopoulos (Amsterdam: Amsterdam University Press, 2011). CC BY NC 3.0 ​
    This is a book chapter about some complicated issues that pertain to the users of openly licensed materials (including CC licenses).

Participants’ Recommended Resources
CC Certificate participants have recommended many additional resources through Hypothes.is annotations on the Certificate website. While Creative Commons has not vetted these resources, we wanted to highlight the participants’ suggestions here: https://certificates.creativecommons.org/cccerteducomments/chapter/additional-resources-4/.

NOTES

  1. ↑ One of Creative Commons’ roles is to serve as a responsible public license steward, actively providing guidance and education about its licenses. When Creative Commons considers weighing in on disputes with commentary or the filing of friend-of-the-court briefs, CC always acts as an advocate for the licenses and their proper interpretation, never in favor of or against a particular litigant. For a detailed analysis of Creative Commons case law, see section 3.4 “License Enforceability.” Creative Commons maintains a database of court decisions and case law from jurisdictions around the world on the Creative Commons wiki for Case Law (licensed CC BY 4.0, available at https://wiki.creativecommons.org/wiki/Case_Law).
  2. ↑ The official names of the court cases are: “Great Minds v. FedEx Office and Print Services, Inc., U. S. District Court for the Eastern District of New York (Civil Action 2:16-cv-01462-DRH-ARL)” and “Great Minds vs. Office Depot, Inc., U. S. District Court for the Central District of California (CV 17-7435-JFW).”
  3. ↑ 3The official name of the court case is “Larry Philpot v Media Research Center Inc., U. S. District Court for the Eastern District of Virginia, Case 1:17-cv-822.”
  4. ↑ You learned about the terms adaptation and derivative work in chapter 2, and how CC licenses use those terms.
  5. ↑ According to the complaint, this contract was entered into while FedEx Office was pending. However, once the district court granted the motion to dismiss in favor of FedEx Office, Office Depot terminated its contract with Great Minds shortly before it expired and, in reliance on the FedEx Office decision, continued to reproduce Great Minds’ materials for school districts without paying royalties to Great Minds.
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