Commons-Talk

Creative Commons and Creative Commons licenses

When the initial Creative Commons licenses (version 1.0) were introduced in December 2002, the licenses were based on United States (US) copyright law. These licenses, although based on US copyright law were referred to as “generic” inasmuch as they do not specify a specific jurisdiction or governing law that would apply in the interpretation of the licenses. By the end of 2003, Creative Commons embarked in the internationalization of the licenses, by porting the generic licenses according to the applicable laws in different jurisdictions around the world.¹ Considering the feedbacks that were gathered after the release of version 1.0, version 2.0 was released (Some of the changes were: Attribution becomes standard; the Link-back attribution was clarified, the Synch rights was similarly clarified, and other music-specific rights were likewise clarified; Warranties were left to licensors; and emphasis was made on Share-Alike, i.e. that it is Share Alike Across Borders; and that BY-SA and BY-NC-SA are not compatible.) on May 2004. Version 2.5 was released on June 2005, to provide a modification in the attribution clause.

Considering that the generic licenses are based on US copyright law, and in light of an internationalization process, there was a quandary as to the status of the “generic” licenses. The solution was to convert the “generic” licenses as the United States ported licenses; while the “generic” licenses have to be recrafted to utilize the language of the international intellectual property / copyright conventions or treaties. Version 3.0 “Unported” (departing from the term “generic”), which was released on February 2007, relied upon the language of the Berne Convention for the Protection of Literary and Artistic Works, Rome Convention of 1961, the WIPO Copyright Treaty of 1996 , the WIPO Performances and Phonograms Treaty of 1996, and the Universal Copyright Convention.²

Creative Commons Philippines

Creative Commons Philippines (CC-PH) began on 2 March 2005 with the signing of the iCommons MOU and the designation of Atty. Jaime N. Soriano, CPA, MNSA, as Legal Project Lead. The Arellano University School of Law, where he sits as Executive Director of the e-Law Center, is the lead public institution. The first draft of the cc-ph license, as part of the porting process, was officially submitted to Creative Commons International on 27 April 2005 and appeared on or about 27 May 2005 on-line at the Creative Commons website as a project jurisdiction. The Philippines participated in the 1st iCommons Summit in Harvard Law School in June 2005. Since then, it has also collaborated with Atty. JJ Disini and Atty. Rissa Ofilada of the College of Law (Internet & Society Program) of the University of the Philippines, in elation to the porting process. For a year, the legal project lead has pre-occupied himself with the public discussion of the first draft of the cc-ph license and the propagation of the rationale and the working principles behind Creative Commons before the legal community and some groups of artists in the country.³ When the unported version 3.0 was released, and since version 3.0 revision was substantial,⁴ the Philippine porting process was reinitiated by late March 2007. The ported Creative Commons Philippine licenses were made consistent to the provisions of the Philippine Intellectual Property Code (Republic Act 8293) and the Civil Code of the Philippines (Republic Act 386). The result was the Philippine ported licenses, which became live on 15 December 2007 and which were publicly launched on 14 January 2008.

The Creative Commons Philippine-ported licenses

The effect of the porting process was to make the terminologies found in the “unported” or generic version consistent with the terminologies of the Philippine law so as to make the license, which is to be treated as a contract (This was made to remove any doubt as to the nature of the document to assure its enforceability; since there being only five sources of obligations here in the Philippines: law, contract, quasi-contract, delict and quasi-delict. The licenses, considering their true nature, are not laws or government regulation that could lose jurisdiction outside the Philippine territory.), enforceable in Philippine courts, especially in case the licensor’s rights are violated by non-compliance of the terms of the license by the license user or licensee. If the unported or generic licenses are the ones used, they remain to be enforced in the Philippines as the Philippines is a signatory of the treaties in which the licenses are based, but one has to explain the correlation of the terminology found in the unported licenses with the terminologies found under the Philippine Intellectual Property Code. Further, there may be other stipulations in the unported licenses, which are taken too broadly to allow the unported licenses to serve as templates for various jurisdictions to port and create their jurisdictional licenses, and which may not have the desired applicability in the Philippines as they are not recognized, or differently appreciated, under Philippine laws (The list of changes are outlined in http://itlawjournal.arellanolaw.net/2008/01/14/ported-license-modifications/). Notwithstanding certain adjustments in the stipulations in the jurisdictional licenses, due care was made to make the jurisdictional licenses consistent with the unported licenses (and hence, also other jurisdictional licenses), so as not to depart from the intent and effect of the stipulations provided therein.

Why use Creative Commons Philippine licenses? For those who have used generic/unported Creative Commons licenses or are geared towards adopting Creative Commons licenses in the near future, seamless enforceability is one. I hope you find more with the explanations above.

1. Garlick, Mia. “Creative Commons Version 3.0 licenses explained — A brief explanation” [↩]
2. Ibid. [↩]
3. http://soriano-ph.com/wp-content/uploads/2006/08/CC-Philippines%202006%20Report%20to%20the%202nd%20Creative%20Commons%20Summit.pdf [↩]
4. Definitions, moral rights provision, and clarification of the collecting society schemes [↩]

February 1st, 2008 | Category: Creative Commons | Subscribe to comments | Leave a comment | Trackback URL