Teresa Scassa - Blog

It is not every day that courts are asked to interpret Creative Commons licenses, which is what makes the recent U.S. decision in Drauglis v. Kappa Map Group, LLC of particular interest.

Creative Commons offers a suite of licenses that can be used by those seeking to license their copyright-protected works under terms that facilitate different levels of sharing and use. Some licenses are virtually without restriction; others restrict uses of the work to non-commercial uses; contain requirements to give attribution to the author of the work; or require that any derivative works made using the licensed work by made available under similar license terms (Share-Alike). The licenses are available in multiple languages and have been adapted to the laws of a variety of different countries. They are even used for open government licensing of works in countries like Australia and New Zealand.

In this case, the plaintiff Art Drauglis was a photographer who had posted a photograph on Flickr under a Creative Commons Attribution-ShareAlike 2.0 license (CC BY-SA 2.0). The defendant was a company that published maps and map-related products. It downloaded a copy of the plaintiff’s photograph from Flickr, and used it on the cover of an atlas it published titled “Montgomery co., Maryland Street Atlas”. The atlas was sold commercially, and the defendant claimed copyright in it. The copyright notice for the atlas appeared its first page, along with its table of contents. On the rear cover of the atlas, the title of the plaintiff’s photograph was provided as well as the information about the name of the photographer and the fact that it was used under a CC-BY-SA-2.0 license.

The plaintiff’s first claim – that the defendant had breached his copyright in the photograph – was quickly rejected by the Court. The District Court (District of Columbia) found that the defendant had used the image under license. Further, the license specifically permitted commercial uses of the image. Thus the plaintiff was limited to arguing that the defendant’s use of the photograph was not in compliance with the terms of the license. There were 3 main arguments regarding non-compliance. These were that: 1) the Share-Alike condition of the license was breached by the defendant’s commercial sale of the atlas; 2) the defendant did not include a proper Uniform Resource Identifier for the CC license as required by the license terms; and 3) the defendant did not provide the proper attribution for the photograph as required by the license.

The CC BY-SA 2.0 license requires that derivative works made using the licensed works also be made available under the same or comparable license terms. The plaintiff therefore argued that the defendant breached this term by publishing the atlas commercially and not under an equivalent license. The court disagreed. It found that the CC license contemplated two categories of re-use of the licensed work – in a “collective work” (defined in the license as a “periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form” is included with other contributions into a collective whole), or as a “derivative work” (defined in the license as a “work based upon the Work. . . in which the Work may be recast, transformed, or adapted”.) It is only derivative works that must be licensed under comparable license terms. The court found that the use of the photograph in this case was as part of a collective work. That collective work was the atlas, consisting of a series of separate works (maps) compiled together with other elements, including the plaintiff’s photograph, in a book. The court rejected arguments that the photograph had been cropped, and was thus “recast, transformed or adapted” rather than incorporated “in its entirety in unmodified form”. It was not persuaded that any cropping had taken place; if it had it was so minor in nature that it was inconsequential.

The CC BY-SA 2.0 license also requires that the licensee “must include a copy of, or the Uniform Resource Identifier for, this License with every copy . . . of the Work”. The plaintiff argued that this clause had been violated by the defendant because it only referred to the license as a CC-BY-SA 2.0 license and did not provide a URL for the license. The court distinguished between a Uniform Resource Identifier (URI) and a URL, noting that ‘URI’ is a term with a broader meaning than URL. While providing a URL might meet this requirement, providing the abbreviated name and version of the license met the requirement for a URI. The court noted that anyone searching the internet for “CC BY-SA 2.0” would easily arrive at the proper license.

The plaintiff also argued that the defendant did not properly attribute authorship of the photograph to the plaintiff in accordance with the terms of the license. The license required that any credit given to the author of a work in a derivative or collective work must, at a minimum, “appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.” (Section 4(c)). Because the copyright information for the atlas as a whole appeared on the inside front page and the credit for the cover photo appeared on the back of the atlas, the plaintiff argued that this condition was not met. However, the court found that copyright information was provided for each map on each page of the atlas, and that this type of credit was comparable to that provided for the cover photograph. The court found that “the Photograph is more akin to each of the individual maps contained with the Atlas than to the Atlas itself; the maps are discrete, stand-alone pictorial or graphic works, whereas the Atlas is a compilation of many elements, arranged in a specific and proprietary fashion, and constituting a separate and original work.” (at p. 18) As a result, the attribution provided for the cover photo was comparable to that provided for other works in the collective work.

This would appear to be a case where the plaintiff’s expectations as to what the CC license he used for his work would achieve for him were not met. It is perhaps a cautionary tale for those who use template licenses – the simplicity and user-friendliness of the human readable version of the license does not mean that the detail in the legal code should be ignored – particularly where the licensor seeks to place specific limits on how the work might be used.

A recent (though not yet in force) amendment to Canada’s Trade-marks Act will permit an unprecedented purging of trademark records in Canada. This destruction of records should be understood within the disturbing context described in a recent Maclean’s article by Anne Kingston, titled “Vanishing Canada: Why We’re All Losers in Canada’s War on Data”. The new section 29.1 is aptly titled “Destruction of Records”. It provides that, notwithstanding the Registrar’s duty to maintain trademark data…