Draft Licence

This Creative Commons Scotland public licence enables You to Use Works worldwide for Non-Commercial purposes provided that You credit the Author under 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

"Author" means the owner of the copyright in the Work, who is the Licensor unless otherwise stated. We asked: is there a need for this definition as well as a definition of 'Original Author'? We think there is, because they may be different. The words 'unless otherwise stated' allow the licensor to state that somebody else (for example, a sponsoring institution, or a wiki collective) is the owner of copyright, as in the proposed CC generic licence 2.5. They also allow the licensor to state that the author (or the original author) is 'Nobody' (cf. Odyssey, book IX) or 'anonymous' or a pseudonym. See comments thread on Debian Legal.

"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.

"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 just above 2.1 d) 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 2.4 below.

"Derivative Work" means a work that Uses the Work (or any substantial part of the Work) in any material form whatsoever, other than as a whole and in unmodified form; a Collective Work is not a Derivative Work for the purpose of this Licence.

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

"Non-Commercial" means not primarily intended for commercial advantage or payment; and exchange for other copyrighted work without payment is Non-Commercial. V.1.4 amended this, with the corresponding deletion of the definition of 'Commercial' which it was thought might lead to confusion. There has been much discussion on marginal cases, but this licence simply follows the generic licence (in simpler language).

"Original Author" means the person who created the Work, who is the Licensor unless otherwise stated. See definition of 'author' above. Words 'person who created' substituted for 'original owner of the copyright in' in v.1.4.2, to follow generic licence.

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

"Publish" includes distribute, perform, or in any other way make available to anyone. 'Anyone' means anyone at all, whether this is public or not.

"Use" includes any form of use whatsoever, such as viewing, copying, editing, adapting, translating, arranging, dramatising, abridging, or Publishing; whether in the original medium or any other. Clarified, v.1.4. Views differed as to whether the list of examples here should be extended.

"Work" means the work protected by copyright which is offered under the terms of this Licence.

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 in any Non-Commercial way for the duration of its copyright. This gives a general right to use, rather than a list of permitted uses, when read with the definition of ‘Use’ above, but the difference is unlikely to permit anything which could not be done under the generic licence. In licences that allow commercial use, the word 'Non-commercial' is omitted.

So you may, for example:

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

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

c) Publish, archive, broadcast, or otherwise give out 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.

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 (in practical terms, 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).

d) 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).

e) sublicense the Work, except as described in clause 2.3 below; or

f) 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 has 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).

And, unless agreed otherwise by the Licensor, you must:

g) make reference to this Licence (by URL, spoken word or as appropriate to the medium used) on all copies of the Work or Derivative Works or Collective Works Published by You (this is an important condition of this licence and if you fail to do so you will be in material breach of its terms);

h) recognise the Author’s copyright in any Work, Derivative Work or Collective Work that You Publish, and ensure that You credit the Author as appropriate to the medium used (this is an important condition of this licence and if you fail to do so you will be in material breach of its terms); and

i) keep intact any copyright notices and notices that refer to this Licence (this is an important condition of this licence and if you fail to do so you will be in material breach of its terms). This reverts to the language of the generic licence, clauses 4a and 4d, (but 'any' for 'all').

The bracketed words are probably implicit in all three cases, but we thought it would be better to spell them out so that there could be no doubt.

2.2. 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.

2.3. Any Derivative Work 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. 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.

2.4. This Licence does not affect any rights that You or any other user may independently have under any applicable law (including fair use, fair dealing 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).

2.5. Rights reserved
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. There is a difficult interface between CC licences and collecting society membership, but we do not see how it could be clarified further in this licence.
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.This adds Public Lending Right (a public scheme for state payments to copyright holders for borrowings from public libraries) to the rights reserved; words in brackets added in v1.4.
d) All other rights not expressly granted by the Licensor are reserved. In those versions of the licence which allow commercial use, the word 'waived' is substituted for the word 'reserved' in a), b), and c) but not in d). This follows the generic licence. The England and Wales licence does not do so; see this message and subsequent discussion.

2.6. The Original Author asserts the right to be identified as the original author of the Work. This is necessary in United Kingdom jurisdictions because of the terms of sections 77 and 78 of the Copyright, Design and Patents Act 1988. We considered whether rights to anonymity, that is the right not to be identified if the author so wishes, and pseudonymity, should be stated here and welcomed views; in effect the definitions of 'Author' and 'Original Author' give these rights.

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. This uses the language of the England and Wales draft, which was in turn based on the international licence. We were not entirely happy with this language; the phrases 'as is' and 'as available' have no clear meaning. However, nobody was able to suggest a better form of words.

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. The detailed wording of this clause remains under consideration. It is necessary expressly to deal with liability for negligence; Smith v UMB Chrysler 1978 SC (HL) 1. 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 material 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. Persons who have received the Work, Derivative Works, or Collective Works from You under this Licence, however, will not have their licences terminated provided the use by such persons is in full compliance with a licence complying with Clause 2.2 or 2.3 above. 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. Should there be any further detail, such as that termination must be by notice in writing, or that it may be by a notice displayed on the licensor's website? We have had no comments on this question. See also clause 6.3.

5.2. If You are not in material 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 that this should be spelled out. In v.1.4, 'your rights under it' replaced 'it'.

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.

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 this may be a mirage. In v.1.4, we restricted this to claims made against the licensor.

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).

Clause 7 is deleted in v.1.4.1; it was pointed out that this was simply a rewrite of the language in the two boxes at the top and bottom of the generic licence and that CC does not regard this language as being part of the licence terms (ref).