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Creative Commons Scotland Public Licence Agreement

Non-Commercial : Attribution : Sharealike : Scotland

The Scottish licences were published in December 2005. There is a full set of six, allowing choices as to commercial re-use and the publication of works derived from the original; they can be chosen from this page.

The text of the Non-Commercial-Attribution-ShareAlike licence is published here with comments and explanations. Other licences are based on this one.'

Substantive description of legal changes

Introduction

At first sight the Scottish licence may appear to be very different from the generic license (the spelling in American-English). The differences are however far more in style than in the end effect. They are driven by the following considerations:

The changes following these considerations fall broadly into three groups.

First, the cutting out of unnecessary and repetitive language, and the use so far as possible of ordinary clear language in place of legalistic phrases (many of which have no clear meaning to us as Scottish lawyers); thus, as examples, in defining commercial use we have substituted ‘payment’ for ‘private monetary compensation’, and throughout we have substituted ‘person’ for ‘individual or entity’. The Scottish licence is about sixty per cent of the length of the generic licence.

Second, the order of provisions is recast (largely following the order of the England and Wales licence) so that for example the provisions as to how credit must be given to the author are made clearer.

Changes falling into these two groups are not usually individually noted below.

Third, to avoid any argument as to incompatibility (although we do not think there is any incompatibility anyway) we have included a clause, 6.6, which provides that the licence must be read compatibly with the generic licence .

Other changes are noted where they occur. Further versions of the licence, following the usual range, will be published from time to time.

Revision history

1.2.4: 28 February 2005; on Creative Commons Scotland page on International Commons site.

1.3.0: 26 March 2005; new provisions as to derogatory treatment in terms of section 80 of the Copyright, Designs and Patents Act 1988 and Berne Convention; delete definition of Licence as unnecessary; amended definitions of 'author', 'derivative work', and of 'use'; minor amendments.

1.3.1: 19 April 2005; delete reference to BBC Creative Archive Licence (which is incompatible) in 2.3; changes to language to clarify question as to 'derogatory treatment'; rewording of 2.5; new 5.2; minor amendments to simplify language (2.6, 6.2, 6.5); additional notes seeking views.

1.3.2: 24 April 2005; correction to 2.3.

1.4.0: 19 May 2005; deleted definition of 'commercial'; other changes are noted where they occur.

1.4.1: 24 May 2005; deleted part 7 for reason stated; some further explanations and references.

1.4.2: 31 May 2005; changes to definitions of 'derogatory treatment' and 'original author', with related changes, and to words before 2.1 d); other minor changes noted as they appear. The commentary is expanded at a number of points.

Published : 2 December 2005; numerous changes.

Links to background sites:

Scottish project body: AHRC Research Centre.

Licence

This Creative Commons Scotland public licence enables You to Use the Work worldwide for non-commercial purposes provided that You keep to the terms of this Licence.

‘The Licensor’ [the Person offering the Work under the terms and conditions of this Licence]

and

‘You’ [the Person acquiring rights under this Licence] This deletes the exclusion of persons in breach of licence terms, which would have the odd effect that the terms of the licence would not be binding on a person already in breach.

agree as follows:

1. Definitions of Capitalised Words

"Collective Work" means a work made up of the Work in its entirety in unmodified form, along with other work, assembled into a collective whole. The collective work may be the work plus one other piece of work; there need not be more than one other.

"Derivative Work" means a work that Uses the Work (or any substantial part of the Work) in any material form whatsoever, (such as a translation, dramatisation, or abridgment), other than (i) as a whole and in unmodified form or (ii) by modifying it as may be technically necessary to Use it in a different mode or format; but a Collective Work is not a Derivative Work for the purpose of this Licence. So, if the original work is text on a website and the user publishes it in paper, that is not a derivative work; all Creative Commons licences allow this, even those which do not allow derivative works. The idea of a derivative work is broadly similar to an ‘adaptation’ under section 21 of the Copyright Design and Patents Act, which typically has its own copyright.

"Derogatory Treatment" means derogatory treatment as defined by section 80 of the Copyright Design and Patents Act 1988, except as allowed by that Act: and it has that meaning wherever that treatment may take place and whoever may carry it out. This definition was added by v.1.3 for the purpose of the prohibition in the newly-suggested clause 2.1.f; see note there. Section 80 is here. In some circumstances it allows derogatory treatment. The effect of this provision in countries which do not have this concept is not something we can advise on (the words after the colon were added by v.1.4.2 because of suggestions that a UK statutory provision might not be recognised outside the UK; but we are using the statutory definition as a licence term, so it is hard to see why it would not be recognised). Note however that the change in the heading of clause 2 makes clear that any right to subject the work to derogatory treatment that arises other than from the licence (for example, a right to parody) is unaffected, and see note to 2.9 below.

"Licence Elements" means the following licence attributes indicated in the title of this Licence: Attribution, Non-Commercial, Share-Alike.

"Original Author" means the Person who created the Work. The ‘original author’ will be either a human being or the Crown, even if the copyright has been assigned. This definition is significant for moral rights.

"Person" means a natural person or a body of persons corporate or incorporate. From the Interpretation Act 1978. Clarified, v1.4.

"Use" , as a verb, means doing any act which is restricted by copyright, whether in the original medium or any other; and includes modifying the Work as may be technically necessary to Use it in a different mode or format.

"Work" means the work protected by copyright which is offered under the terms of this Licence, and includes the Work as incorporated in any Collective Work.

Words in the singular include the plural and vice versa. From the Interpretation Act 1978.

2. The Rights Granted New heading, v.1.4.2.

2.1. The Licensor grants to You a worldwide, royalty-free, non-exclusive, licence to Use the Work for the duration of its copyright. This gives a general right to use, rather than a list of permitted uses, but the difference is unlikely to permit anything which could not be done under the generic licence.

So you may, for example:

a) copy the Work, or create Derivative Works or incorporate it into a Collective Work;

b) copy Derivative Works, or the Work as incorporated in any Collective Work; and

c) publish, perform or communicate the Work and/or Derivative Works and/or the Work as incorporated in any Collective Work to anyone;

in any medium whether now known or created in the future.

2.2 However, this Licence does not allow you to: These words substituted in v.1.4.2 for 'However you must not' to make plain that rights which are independent of the licence are unaffected by these restrictions (this means for example that there may be a right to subject the work to 'derogatory treatment', either by agreement or as a fair use).
->a) use the work in any way primarily intended for commercial advantage or payment; but exchange for other copyrighted work without payment (whether by means of digital file-sharing or otherwise) is not to be taken to be so intended; ‘’ This language follows the generic license. We recognized that in practice it causes a good deal of difficulty in borderline cases, and this will require attention in the next edition, but for international compatibility this could not be spelled out further at this time.’’
->b) impose any terms or any technological measures on the Work, the Derivative Work or the Work incorporated in a Collective Work that alter or restrict the terms of this Licence or any rights granted under it or have the effect or intent of restricting the ability of any person to exercise those rights; 'Technological measures' substituted for 'digital rights management technology, following generic licence 4a and 4b.There has been a great deal of discussion on mailing lists as to the purpose, and effect, of this provision in the generic licence. It is hopefully clearer here; it does not prevent the use of DRM unless the intent/effect of this is to restrict the ability of anyone to use the work; DRM will not do so as long as a non-DRM copy is available (note added, v.1.4.0 and 1).
->c) sublicense the Work; or
->d) subject the Work to Derogatory Treatment. This sub-article was new in v.1.3 (and was revised in v.1.3.1). We particularly welcomed views on it, having regard to the problems in either retaining or waiving rights under section 80 of the 1988 Act and the international implications, such as reciprocity between licences. It could be argued that this is a matter best not mentioned in the licence at all or that a phrase other than 'derogatory treatment' or 'derogatory work' should be used or that it should be differently defined. Our provisional view, however, was that this should be included, and on the whole discussion and comment tended to confirm this. It has been suggested that this should be a Licence Element, so that this line was optional; this would need a change in the entire CC structure. Meanwhile, anyone who wishes to subject a work to derogatory treatment will have to ask the licensor (but see note to 2.4). Most jurisdictions with a similar legal concept have taken this approach in drafting CC licences (Canada is an exception).

2.3 You must, if you publish or distribute the Work or any Derivative Work to anyone else in any way, give reasonable credit to the Original Author as follows:
->a) by giving the name of the Original Author if that has been supplied; or a pseudonym if that has been supplied instead; and/or the name of any other person if that has been supplied for attribution in place of the Original Author;
->b) by giving the title of the Work if that has been supplied;
->c) by giving the Uniform Resource Identifier of the Work if that has been supplied, but you need not do so if this does not refer to its copyright terms or to its licensing information;
->d) in the case of a Derivative Work, by identifying how the Work has been used (for example, "French translation of the Work by X", or "Screenplay based on original work by X"); and
->e) in the case of a Derivative Work or a Collective Work, placing that credit in the same place, and at least as prominently, as any comparable authorship credit.

But, if what you are publishing or distributing is a Derivative Work or a Collective Work, you must remove any of these credits if you are asked to do so by the Licensor and if it is practicable to do so.

These are important conditions of this licence and if you fail to do so you will be in material breach of its terms.

2.4 The Original Author asserts the right to be identified as the original author of the Work; but only as and when required by clause 2.3 above. This is necessary in United Kingdom jurisdictions because of the terms of sections 77 and 78 of the Copyright, Design and Patents Act 1988.

2.5 You must also, if you publish or distribute the Work or any Derivative Work to anyone else in any way:
->a) include a copy of this Licence (or its Uniform Resource Identifier) with it; and
->b) keep intact any copyright notices for the Work and notices that refer to this Licence.
->These are important conditions of this licence and if you fail to do so you will be in material breach of its terms. 2.3 to 2.5 were rewritten between 1.4.2 and the published draft.

2.6. Each time You Publish the Work or any Derivative Work or the Work as included in a Collective Work, the Licensor offers to the recipient a licence to the Work on the same terms and conditions as this Licence. This follows generic licence, clause 8a.

2.7. Any Derivative Work you create must be under a licence which is either one with the same terms and conditions as this Licence, or a later version of this Licence with the same Licence Elements as this Licence, or another Creative Commons licence with the same Licence Elements as this Licence (for example, Attribution-Noncommercial-ShareAlike 2.5 Slovenia). This follows generic licence, clause 4b, and has the effect that creating a derivative work can neither increase nor reduce the rights of any end-user.

2.8 And:
->a) the right to collect royalties for any commercial use of the Work is reserved;
->b) the right to collect payments via a licensing body or collecting society for any commercial use of the Work is reserved;
->c) the right to collect payments under the Public Lending Right scheme (or any public scheme that provides payment for public borrowing or use) is reserved;
->d) the right to release the Work under different terms, or to stop distributing the Work, is reserved; and
->e) all other rights not expressly granted by the Licensor are reserved. ‘’The first three of these are reserved anyway under the generic non-commercial license, but there have been so many mistaken statements that they are not reserved (particularly from the music industry) that they are specifically mentioned here.’’

2.9. This Licence does not affect any rights that You or anyone else may independently have under any applicable law (including fair dealing, fair use or any other legally recognised limitation or exception to copyright infringement) to make any Use of this Work. Although this is a Scottish licence, and subject to Scots law, these are rights which will depend on the jurisdiction of the publication, because they are rights which flow from the general law and not from the licence. Thus, for example, in a jurisdiction that considers a particular treatment to be a fair parody, that treatment would be allowed even if it fell into the definition of 'derogatory treatment'; although it would not be allowed in a publication in Scotland or England, or in a jurisdiction where parody was not itself allowed. Note that in Scots law (as in most European and Commonwealth systems) publication on the internet is likely to be publication in Scotland if there is any substantial readership in Scotland, see e.g. Bonnier Media v Smith 2003 SC 56 (note added v.1.4.2).

3. Warranties and Disclaimer

3.1. The Work is licensed by the Licensor on an "as is" and "as available" basis and without any warranty of any kind, either express or implied, whether of title, of accuracy, of fitness for purpose, or otherwise.. This does not protect the licensor if they have used work that was somebody else’s copyright without the necessary permission from a claim by the copyright holder; and it does not protect against a claim for defamation.

4. Limit of Liability

4.1. Subject to any liability which may not be excluded or limited by law, the Licensor shall not be liable for, and expressly excludes, all liability for loss or damage however and whenever caused to anyone by any Use under this Licence, whether by You or by anyone else, and whether caused by any fault on the part of the Licensor or not. If liability may not be excluded by law, it is limited to actual and direct financial loss to the extent it is caused by proved negligence on the part of the Licensor. This clause, again, will not protect against delictual claims for defamation or breach of copyright. It is intended to protect against claims by users. It is possible (but we think highly unlikely) that the exclusion of liability might be challenged under the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083, reg. 6; no drafting could entirely exclude this possibility.

5. Termination

5.1. Any breach by You of the terms of this licence (for example, by distributing the work licensed without attributing authorship as appropriate) entitles the Licensor to terminate this Licence with immediate effect and without notice to you. Persons who have received the Work, Derivative Works, or Collective Works from You under this Licence, however, will not have their licences terminated provided their use is in full compliance with this Licence or a licence granted under clause 2.6 of this Licence. The generic licence provides for automatic termination in the event of any breach. We do not think this could be accommodated under Scots law, and instead we have provided a conventional right to the licensor to terminate.

5.2. If You are not in breach of the terms of this licence, the Licensor may not terminate your rights under it. New in v.1.3.1; comments elsewhere suggest ed that this should be spelled out. In v.1.4, 'your rights under it' replaced 'it'.

5.3 Unless terminated under clause 5.1, this Licence is granted to you for the duration of copyright in the Work. Again, this is spelled out because it is often misunderstood. It does not prevent the licensor re-issuing the work without a Creative Commons licence; for example, if music was originally published electronically under a no-derivatives licence, an enhanced edition could be sold later by the licensor with full copyright protection. In Scots law, the duration of copyright is usually the lifetime of the original author and seventy years thereafter; section 12 of the 1988 Act.

6. General

6.1. If any provision of this Licence is held to be invalid or unenforceable, that shall not affect the validity or enforceability of the remainder of the terms of this Licence.

6.2. This Licence is the entire agreement between the parties with respect to the Work licensed here. It replaces any earlier understandings, agreements or representations with respect to the Work not specified here. The words 'it replaces any' were substituted in v.1.3.1 for 'there are no' to make clear that the licensor and any user may of course make their own agreement; and the word ‘earlier was included for the same reason.

6.3. If You are in material breach of the terms of this Licence (for example, by distributing the work licensed without attributing authorship as appropriate) you will not be entitled to rely on the terms of this Licence or to complain of any breach by the Licensor. This clause is new; see note to 5.1; under the generic licence it was not necessary because the licence had ended automatically.

6.4. Neither You, nor anyone else, may enforce any provision of this Licence by specific implement or interdict. Scots common law, unlike Anglo-American common law, provides for third-party rights to enforce a contract in some circumstances. Specific implement and interdict are the two remedies in Scots law by which a person might seek to enforce a contract. We have provided that no user can use them to enforce a licence, even if the user is not in breach; this seems consistent with the absence of warranties to be enforced.

6.5. This Licence is governed by the law of Scotland and the parties accept the exclusive jurisdiction of the Courts of Scotland to decide any action or claim directed against the Licensor. Governing law provision: Contract (Applicable Law) Act 1990. Jurisdiction provision: Civil Jurisdiction and Judgments Act 1982 as amended, schedule 8 paragraph 6 and schedule 4 paragraph 12, also Council Regulation (EC) 44/2001, article 23 and other international conventions. Its purpose is to protect the licensor against any possibility of disputes being decided anywhere in the world but their own country, but claims for defamation or breach of copyright will not be restricted by this clause.

6.6. If there is any dispute as to the meaning or effect of any provision of this Licence, it must so far as possible be read and given effect in a way that is compatible with the provisions of the Creative Commons generic licence, version 2.5, which has the same Licence Elements. This is new; its purpose is obvious. The language follows the style of the Human Rights Act 1998 section 3. In v.1.4, we substituted 'version 2.0' for 'current', which was ambiguous; then updated to '2.5' in v.1.4.2 (see note to definition of 'author' above).

Unlike the England and Wales licence, we do not include the ‘trademark’ provisions of the two boxes at the top and bottom of the generic licence as part of the licence; CC does not regard this language as being part of the licence terms (ref).