What if CC signals functioned as a contract instead?

[CC-signals]

We’re aware of efforts to develop new licenses and contracts, including to shape more responsible AI development (e.g., Responsible AI Licenses), curtail extractive practices (e.g., Post-Open Zero Cost Licenses), and practice digital sovereignty (e.g., Nwulite Obodo Open Data License). Others have proposed ways to adapt CC licenses to address AI training.

Right now, we’re being cautious about relying on licenses or contracts to build a fairer digital future.

For a license to be enforceable, it needs to be tied to an intellectual property right. CC licenses only apply when copyright applies, and they don’t impose contractual obligations on actions otherwise allowed by law through exceptions and limitations to copyright (e.g. research, criticism, parody, and more).

AI training currently falls outside the scope of copyright in many situations, and different countries are still figuring out how they will approach this issue. For example, in a jurisdiction like Japan, the CC license would have no effect on the act of reproducing a work for purposes of AI training because it is permitted under an exception to copyright law. As such, compliance with the license conditions may not be required when using CC-licensed works for AI training.

Contract law is not an ideal way of filling that gap, at least on the public web. Contracts are hard to enforce when access to information is technically unrestricted. Without the control of copyright or another intellectual property right, a contract can only create enforceable obligations if both parties actively agree to it. Even if a contract is formed between two parties, other parties might still access the data from somewhere else in the AI pipeline, and they wouldn’t have to follow the contract.

Using contracts to control things that aren’t covered by copyright creates legal enforcement and ethical problems, because it can upset the balance between free expression and the rights of authors. When copyright doesn’t give the right to control a certain use of a work, it’s usually because the law has struck a balance between the interests of creators and the public. Being able to reuse works without permission is important for protecting free expression.

This is why CC licenses are only connected to the acts copyright restricts, and not onto acts protected under exceptions and limitations to copyright. This has been a fundamental principle of CC licensing.