[OSM-legal-talk] [cc-community] CC-BY, does the anti-TPM clause apply to adaptations?

Sarah Pearson sarah at creativecommons.org
Wed Jan 23 00:06:24 GMT 2013

Hi Anthony,

Thanks for raising this question. The short answer is no, we do not think
CC BY is incompatible with the ODbL. People can remix BY-licensed databases
and license them under the ODbL.

The reason why we think they are compatible requires a bit of a longer
answer. First, we should explain how we think about compatibility. A
license is compatible with another license if you can take work licensed
under the first license, adapt it, and then license the rights you have in
the adaptation under the second license. As a legal matter, this is allowed
as long as the first license: (1) allows you to create adaptations, and (2)
does not dictate that you license your rights to an adaptation under
particular terms and conditions. CC BY v3 meets both of these conditions.
So long as a licensee appropriately attributes the BY licensor when they
share their adaptation, they may apply the ODbL (or any other license) to
their copyright in the adaptation.

As a practical matter, compatibility is slightly more complicated because
of the concept I explained in my prior
this thread: an adaptation is always subject to two copyrights. When
those copyrights are licensed on different terms, it can be difficult for
those using the adaptation to sort out their obligations. In this context,
someone using the ODbL-licensed adaptation would have to comply with both
the ODbL and CC BY (to the extent they make a use of the adaptation that
implicates both copyrights).

The TPM restriction in CC BY does not complicate reuse from this
perspective. Although the ODbL permits application of TPMs if a free
version is distributed in parallel, it by no means requires application of
TPMs. Therefore, it would be easy to comply with both licenses by simply
not applying TPMs to the adaptation.

You also asked whether the new clause in the current working language of
Version 4.0 about how to license adaptations of BY-licensed works changes
anything. The answer to that question is no, the clause only makes explicit
what I have explained above. The license applied to the adaptation must be
one that allows someone using the adaptation to simultaneously comply with

This email only scratches the surface of all of the interesting and
complicated issues relating to compatibility. We are in the process of
developing a more in-depth explanation of these issues. Please look for
more on that in the near future.


Sarah Hinchliff Pearson, Senior Counsel
Creative Commons
444 Castro Street, Suite 900
Mountain View, California 94041
skype: sarah-h-pearson
email: sarah at creativecommons.org

On Thu, Jan 17, 2013 at 6:06 PM, Anthony <osm at inbox.org> wrote:

> Given the TPM restriction, is CC able to definitely state that CC-BY
> is not compatible with ODbL (as in, a derivative database of a CC-BY
> database cannot be licensed under ODbL)?
> Does the new rule about adaptations alter that at all?
> On Wed, Jan 16, 2013 at 12:31 AM, Sarah Pearson
> <sarah at creativecommons.org> wrote:
> > Happy new year! Over the past month or so, we have been working on
> refining
> > draft 3 of Version 4.0, and we plan to publish it shortly. In the
> meantime,
> > we wanted to follow up on this particular thread about the reach of the
> > restriction because it touches on a lot of complicated issues relating to
> > the licenses. Most importantly, it hinges on what happens to the original
> > work when an adaptation is created. We have done a lot of thinking about
> > these issues over the last several weeks as we endeavored to make the
> > concepts more clear in Version 4.0.
> >
> > The starting point to answer this question is a fundamental concept about
> > how adaptations work under copyright law. That is, the rights in an
> > adaptation never touch the rights to the original from which it is
> > derived.[1] That means an adaptation is always subject to two
> copyrights: in
> > the CC license context, one copyright is held by the adapter with
> respect to
> > the new contributions, and one is held by the original licensor with
> respect
> > to the original.
> >
> > This helps to answer the question about the TPM restriction because it
> > demonstrates how adaptations necessarily include the licensed work.
> > Therefore, if you are not allowed to lock down the licensed work by
> applying
> > TPMs, by default you are not allowed to lock down an adaptation by
> applying
> > TPMs, at least to the extent the TPMs restrict access to the original
> > licensed work.
> >
> > This same concept applies to all obligations in the licenses that apply
> to
> > the licensed work, including the provision dictating that the CC license
> > always follows the original work, offering a new license to downstream
> > recipients when licensees share the work, and to the provision
> prohibiting
> > licensees from imposing new legal terms or conditions upon the original
> > work. Because adaptations necessarily include the licensed work,
> downstream
> > recipients of adaptations get access to the original work under the
> original
> > CC license without any new terms and conditions imposed by the licensee.
> >
> > This might start to sound a bit like ShareAlike, but there is an
> important
> > difference, and it relates to the fundamental concept explained above:
> there
> > are always at least two copyrights in an adaptation. With that in mind,
> > under the ShareAlike licenses, licensees are required to share their own
> > rights in the adaptation under identical terms and conditions. In the
> > non-ShareAlike licenses, licensees are free to share their own rights in
> an
> > adaptation on any terms, even though the original CC license always
> follows
> > the adaptation with respect to the original work.
> >
> > In the upcoming draft of Version 4.0, we have made an important change to
> > the above concepts. We have included a limited rule as to how
> adaptations of
> > non-ShareAlike licenses must be licensed. The rule, which will be
> included
> > only in CC BY and CC BY-NC, states that adaptations may be licensed on
> any
> > terms, so long as people using the adaptation are able to comply
> > simultaneously with those terms and the original CC license (since both
> > licenses apply).[2] This ensures that licensees are not releasing their
> > rights to adaptations in a way that would make it impossible for
> downstream
> > recipients to reuse the adaptation as a whole.
> >
> > Another important change in this upcoming draft of 4.0 relates to TPMs.
> > Licensors have always had the ability to apply TPMs to their own works
> (even
> > though doing so frustrates the purpose of the license because it makes it
> > difficult for licensees to exercise their rights). In the new draft, we
> have
> > included express permission to circumvent any TPMs that are applied by
> > licensors.[3]
> >
> > We look forward to hearing from you on these and other important proposed
> > changes to the licenses during the upcoming public comment period.
> >
> > best,
> > Sarah
> >
> > FNs:
> > [1] Article 2(3) of the Berne Convention: “Translations, adaptations,
> > arrangements of music and other alterations of a literary or artistic
> work
> > shall be protected as original works without prejudice to the copyright
> in
> > the original work.” (emphasis added)
> >
> > [2] The current working language for d3 is: “You may release Your
> Copyright
> > and Similar Rights in the Adapted Material on any terms and conditions
> > provided users of the Adapted Material are able to simultaneously satisfy
> > those terms and conditions and this Public License.”
> >
> > [3] The current working language for d3 is: “ You are authorized to
> exercise
> > the Licensed Rights in all media and formats whether now known or
> hereafter
> > created, and You are authorized to make technical modifications
> necessary to
> > do so.  The Licensor waives or agrees not to assert any right or
> authority
> > that the Licensor may have to forbid You from making such technical
> > modifications, including modifications necessary to circumvent effective
> > technological measures applied by the Licensor ”
> >
> >
> > Sarah Hinchliff Pearson, Senior Counsel
> > Creative Commons
> > 444 Castro Street, Suite 900
> > Mountain View, California 94041
> > skype: sarah-h-pearson
> > email: sarah at creativecommons.org
> > ______________________________
> >
> >
> >
> > On Wed, Nov 28, 2012 at 10:32 AM, Anthony <osm at inbox.org> wrote:
> >>
> >> "When You Distribute or Publicly Perform the Work, 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."
> >>
> >> Does this apply to Adaptations as well, or does it only apply to the
> >> original Work?  Assume the Adaptation is not released under CC-BY.
> >>
> >> Does this answer change in 4.0?
> >> _______________________________________________
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> >
> >
> >
> > _______________________________________________
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