Report of the Working Group to Investigate Use of CC BY to designate holders of public domain collections

Summary CC Open Culture Platform WG 5 to Investigate Use of CC BY to designate holders of public domain collections

CC Open Culture Platform Working Group 5 focused on analyzing the need for cultural heritage institutions (CHIs) to be credited for the digital reproduction of the material, even when the material is in the public domain, to attest the origin of digitization while informing every potential user about the institution of preservation.

To respond to this need, CHIs mostly used CC BY attribution licenses to share the digital reproductions of their collections in the public domain instead of CC0 or PDM.

Is it legally accurate and good practice with CC licenses and public domain tools to apply a CC license to material in the public domain using the attribution copyright clause to indicate information about CHIs? Is this practice a sign that CHIs need support to better use CC tools that can accomplish their need without interfering with the public domain?

The WG 5 analyzed benefits and risks associated with different potential interventions (technological, legal and social) and decided to propose a combination of social and technological ones. Social interventions are suitable to discourage CHIs from inappropriate CC license use, assist users in crediting CHIs, and raise awareness for crediting. We also propose a range of technical interventions to add non-binding courtesy request options (generic, customizable, or add-on) that allow the accessibility of the content by exploiting the functions of metadata and the machine-readable standard.

The need for institutions to have their digitization process recognised seems legitimate. More generally, the credited information can also play an essential role in source traceability and validating the image’s origin for the users.

Report

Introduction

A user of a copyright protected work, including CC-licensed works with a BY requirement, is often required to provide attribution to the creator (1). In general, a work in the public domain (2) does not legally require attribution (3). However, many Cultural Heritage Institutions (CHIs) inappropriately use CC BY licenses to share digital reproductions of public domain works from their collections. Copyright licenses (including CC licenses) on public domain material are unenforceable, as is their requirement for attribution. A Working Group of the Creative Commons Open Culture Platform was established in 2022 to look into the use of CC BY to designate holders of public domain collections. This report analyzes this issue and proposes guidelines, standards, or actions to address it.

Many CHIs use CC BY licenses for a variety of reasons, including because they want to get recognition for preserving works in their collections and making them available for use, to inform users where the originals are held, and to keep track of reuse of their collection. Creative Commons public domain tools (4) in contrast, do not require attribution, so many CHIs prefer using licenses that require attribution.

This report proposes three categories of solutions to this issue along the lines of technological, legal, and social interventions (5). In our conclusion we recommend that a combination of these be used.

1. Technological interventions

It is understood that CC licenses cannot be enforced when used with a work in the public domain. It is also understood that the CC Public domain tools cannot add legally enforceable attribution requirements. We describe three solutions to add a courtesy (non-binding) request to all deed pages.

The technological options are not meant to be implemented at the same time. Creative Commons should consider relevant situations and resources available to them to decide the best options or combination thereof.

1.1. Generic (non-binding) courtesy request

A simple version of a (non-binding) courtesy request is to add a general notice to all deed pages of all licenses and public domain tools that include a request to mention the publishing platform / CHI that make the work available.

Pros

A simple request could improve the overall attribution and distribution of works made available with the CC legal tools and the Public Domain Mark (PDM) and the recognizability of major publishing platforms that host these works.

Cons

Not all creators will be happy with a request to mention the different platforms that their works are hosted on. Creators might think a request to credit the holding institutions detracts from their own attribution.

1.2. Customizable (non-binding) courtesy request

One of the possible solutions is to add a customizable (non-binding) courtesy request for credits accompanying all CC licenses and tools, as demonstrated in the mockup below (6).

We propose to add optional information to all deeds of the CC licenses and tools , including PDM and CC0. This information is communicated via the parameters of the license URI. It includes:

• The Title of the work
• The name of the Creator of the work
• A Credit line

Pros

A flexible, non-legal intervention in the license that allows CHIs to communicate a credit line and additional provenance information.

Cons

Information cannot be curated by Creative Commons and false or derogative information can be injected into the deed pages. This may present a threat to the brand image of Creative Commons.

The range of Creator to be attributed is not self-evident, and not only CHIs, but also a broader range of parties may start showing interest in receiving credit. See also the Cons for the Legal Intervention below for the similar potential problem.

1.3.Add-on (non-binding) courtesy request options

The third option, which is an extension of the second, is to provide a means to add the request for credit, along with machine-readable code and an icon indicating such request exists as an element of the CC0 and / or PDM. This is similar to defining and providing a new license element (BY, NC, ND, SA) except that the courtesy request element is non-binding.

Pros

CHIs often have interest in not only receiving credits, but also receiving reports on usage. Creating a framework in which other types of courtesy requests could be presented in a standardized and machine-readable way may be useful in responding to the broader need of CHIs for such information. When a broader set of needs are met, CHIs are less likely to resort to unstandardized terms of use and other (binding) means which would present higher barriers for reusers. CHIs would be more motivated to provide digital collections and an increase in supply would benefit potential reusers and broader societies.

Cons

This is a high cost option for Creative Commons to implement.

It is not clear whether the courtesy options would proliferate over time. For example, some CHIs have interest in receiving a copy of works in which materials from their archive is used. Others may have other requests. Creative Commons may not be interested in supporting many courtesy requests for many different parties through this framework.

2. Legal tool intervention

One possible solution is to create a new legal tool that is suitable for CHIs that aim to receive credits for their role and request users to credit them when they are using/reusing a digital reproduction of a public domain collection item that is made available by CHIs. Everyone that uses the digital reproduction released with this tool could use/reuse it, including giving credit to the CHI.

Pros

This solution could give a direct response to the CHIs’ needs, through a standardized and customizable tool instead of CC licenses.

CHIs may be more motivated to provide digital collections and such increase in supply would benefit potential reusers and broader society.

Cons

This solution could be an incentive for many other (types of) institutions wanting to receive credit, not just within the field of CHIs, but also in other applications such as open data, AI-generated materials, animal selfies, sensor-generated data, and so on. This will lead to increased barriers to free reuse.

In addition, creating and changing the licenses is costly to Creative Commons and is time-consuming. Indeed, as experience teaches us, the reasoned and participatory creation of a new legal tool that will work effectively requires time and interactions with different actors.

Furthermore, compliance is not guaranteed. The CHI will still need to spend resources in order to enforce the new legal tool.

Most importantly, the creation of a new mandatory legal tool for this purpose is against the spirit and principles of openness and it imposes limitations on the public domain.

In fact, in those cases and in those jurisdictions where a new copyright (or other rights, such as neighboring rights, related rights, and special rights) would still arise when a public domain work is digitized, CC advises CHIs to waive those rights, not claim them and not to contractually/legally require credit, because that diminishes the public domain.

3. Social interventions

The following three options are essentially “social” mechanisms encouraging CHIs and/or others to change their practices.

3.1. Discourage CHIs from inappropriate CC license use

The first option is to organize a campaign to discourage CHIs from using CC licenses inappropriately, for example, by pointing out that such uses are unenforceable and/or legally inaccurate.

This campaign should be led by Creative Commons HQ, for example, by a series of blog posts, additions to the CC FAQ, and specific communication to the largest users of CC BY on PD materials.

Pros

This option could be started immediately.

Cons

1. There is a cost to ensuring that the message is clear, consistent, and from a reliable source, and it is not clear who that source would be.
2. Telling CHIs not to use certain CC licenses may lead to confusion.
3. If CHIs are simply discouraged from using CC licenses without a good alternative option, CHIs may be less motivated to provide their digital collections. It means a smaller commons than otherwise.
4. CHIs may resort to various terms of use for their digital collections, requiring credits and other things, in diverse formats not as accessible as Creative Commons licenses for users to understand.

3.2. Assist users to credit CHIs

A second option is to assist users to credit CHIs by promoting crediting through norms and providing tools to support credits. Entities such as Creative Commons may be able to work with existing search engines and repositories, for example, to make it easy for reusers to give credit to CHIs.

Pros

This option is relatively easy for reusers to use and understand.

Cons

There is no obligation to use the credits, and adoption may be uneven, e.g., use in the academic sector may be stronger than by the general public.

3.3. Raise awareness for crediting

A third option is to help CHIs to achieve their goal to be credited appropriately by raising their awareness of various tools, platforms, guidelines, and practices. The academic community has a well-functioning norm of giving credit to ideas and findings informing the authors, and it is done regardless of the copyright status. The norm dictates that authors give credits even when using others’ ideas or simple numerical data sets, which are typically not protected by copyright, and findings from very old studies whose copyright protection have expired.

Pros

Reusers would simply have to follow the guidance provided by CHIs.

Cons

This is potentially costly for CHIs because they would have to investigate various alternatives in order to decide on what best suits them. Furthermore, there is no guarantee that CHIs would stop using CC licenses inappropriately.

Recommendations

After collaborative research, conversations with experts, and rich discussions around a multitude of considerations, the working group developed a series of possible interventions, explained in detail in this document. As we pondered the pros and cons of each of the various options, it became clear that flexibility was a key factor to enable wide adoption by the community. Given this finding, we recommend the following:

1. We do not recommend any of the legal interventions (section 2), as they risk compromising the freedoms associated with the public domain and entail a time-consuming process to amend the CC licenses.
2. Creative Commons and its community should encourage and promote combinations of the proposed social interventions among CHIs to ensure that their institutions receive appropriate credit.
3. Additionally, Creative Commons should consider adopting technological interventions according to their specific needs and available resources.

We look forward to continuing this conversation and to finding concrete solutions to address CHIs’ real and pressing needs.

Notes

(1) All six CC licenses request to respect the BY attribution clause.

(2) A work is in the public domain when a) copyright protection on the work has expired OR b) it failed to meet the requirements for copyright protection (e.g. facts, ideas, non-original expressions, etc.) OR c) its author placed the work in the public domain using a CC0 license.

(3) In some jurisdictions moral rights do not expire and attribution of the creator is perpetually required. Also in certain jurisdictions new copyright can be attracted when a public domain work is digitized. CC strongly disapproves of these rights in the reproduction of the material / digital surrogate.

(4) Creative Commons Public Domain Mark, and the Creative Commons Zero Public Domain Dedication tools.

(5) We classified an intervention as “technological” if it requires writing or modifying existing software code for an intervener, typically Creative Commons and other similar entities. Legal interventions involve some element that has legal force, such as adding or modifying the existing legal text of CC0. Social interventions involve collaboration with other entities. Classifications are not meant to be taken strictly because some interventions fall into more than one of these categories.

(6) This option takes inspiration from similar work done by the Rights Statements consortium. See page 5 of the “RightsStatements.org White Paper: Requirements for the Technical Infrastructure for Standardized International Rights Statements”

About the working group

Current members of the WG:

• Deborah De Angelis
• Tomoaki Watanabe
• Laura Sinigaglia
• Alaafiabami Oladipupo
• Brigitte Vézina
• Maarten Zeinstra
• Jean Dryden
• Ellen Van Keer
• Jesse Carson
• Erich Luth

Meetings of the working group

• 1st Call (January 28th, 2022)
• 2nd Call (February 10th, 2022)
• 3rd Call (February 24th, 2022)
• 4th Call (March 10th, 2022) Special guest: Thomas Margoni
• 5th Call (March 24th, 2022) Special guest: Jean Dryden
• 6th Call (April 07th, 2022) Special guest: Kat Walsh
• 7th Call (May 05th, 2022)
• 8th Call (May 19th, 2022) Special guest: Timid Robot
• 9th Call (September 8th, 2022)
• 10th Call (October 20th, 2022)
• 11th Call (October 27th, 2022)
• 12th Call (November 10th, 2022)
• 13th Call (November 24th, 2022)

Consulted experts

• Thomas Margoni
• Jean Dryden
• Kat Walsh
• Timid Robot Zehta

Iconografy of the Report of the
Working Group to Investigate Use of CC BY to designate holders of public domain collections