Greetings Open Colleagues:

Creative Commons (CC) is in the final stages of preparing draft 3 of 4.0 for public comment.  I want to call your attention to an open proposal (not yet incorporated in the draft or in any way committed to by CC) that would benefit from your input at this time, as it would have the potential to impact the OER and OA communities if it advances.

At issue is whether to require licensors to undertake an affirmative representation and warranty that they have secured all rights the work subject to the CC license. This means that licensors would be required to assert that they have all the necessary rights to publish the content under a CC license. Introducing an affirmative representation and warranty on the part of the licensor would be a change from how CC licenses have operated since version 2.0, which places the responsibility on the side of the user of the CC licensed work, who must do the diligence to ensure that he/she has all the necessary rights to use the licensed work. (Note that there have been several proposals in the making, this is a general statement for purposes of eliciting feedback.) 

Introducing an affirmative representation and warranty on the part of licensors would be a change from how CC licenses have operated to date, with the exception of the version 1.0 licenses which contained such a provision. That provision was removed from the licenses at version 2.0, and has remained absent since. The reasons for that change in policy are collected and explained at the link below.

http://wiki.creativecommons.org/4.0/Disclaimer_of_warranties_and_related_issues

CC is only evaluating this proposal at this stage.  As part of that evaluation, it would be good to understand from the OER and OA communities, what impact, if any, the inclusion of an affirmative undertaking would have for 4.0 uptake by OER and OA providers and users (who often become providers in turn when they remix and share CC licensed resources).

Please review the link above, where many of the pros/cons of this proposal have been set out.

Note that we have already built into 4.0d2 the ability for licensors to make warranties as part of the CC license if they choose.  Under the proposal above, licensors would not be given the option but would be required to provide those if they wanted to use 4.0.  The same is true of users of those 4.0 SA works were they to remix 4.0 SA licensed learning materials, for example, and then share those materials with others.  This is because any adaptations of an SA work must also be licensed under the same (or later) version. Were this proposal to advance, the only option for licensors wanting to use CC but unable or unwilling to make a representation and warranty for any reason -- whether legal, policy, or simply as a matter of choice -- would be to stay with a pre-4.0 license (other than v1.0).

Once again, please keep in mind that this proposal is still in the discussion stage. CC will not be changing course from 3.0 absent a compelling proposal, an understanding of the chilling effects and tangible benefits associated with the tradeoff, among other things.

Thanks in advance for your consideration and constructive input.

Please send any comments to: Diane Peters, CC General Counsel: [log in to unmask]

My thanks,

Cable