Commons-Talk

Eugene Villa posted an inquiry, to wit: “Are the ported licenses the same thing as the unported licenses but only reinterpreted for the Philippine legal system or are they two completely different licenses?” on “Why use Creative Commons Philippine licenses?” The follow up questions provide that “[S]uppose I license a piece of creative work under the unported CC-BY-SA-3.0 license[, d]oes this mean that I have also licensed it under the Philippine CC-BY-SA-3.0 ported license when the work is used in the Philippines? Or do I have to specifically say that I also license it under the Philippine license for my intended licensing use to be enforced in the Philippines?“

I could answer the first question in an imperfect analogy of “twins.” Are they same? It would be a yes and a no. On the other hand, I could answer the subsequent question with another question such as “Why not shift to a CC BY-SA 3.0 Philippines license instead of maintaining the Unported one?” But then again, it would not help anyone for me to provide such simplistic answers, as they would not answer the question “Why?”

Let’s have again an overview of Creative Commons Unported/Generic licenses. Creative Commons Unported/Generic licenses are jurisdiction-agnostic. They do not mention any particular jurisdiction’s laws or statutes or contain any sort of choice-of-law provision. The licenses (before version 3.0) are based on the U.S. Copyright Act in many respects. The version 3.0 licenses, on the other hand, utilizes the terminologies of the Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979), the Rome Convention of 1961, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996 and the Universal Copyright Convention (as revised on July 24, 1971), and contains stipulations are generally made, and which may or may not necessarily applicable according to a certain jurisdiction’s law. Although there is no reason to believe that the licenses would not function in legal systems across the world, it is at least conceivable that some aspects of Creative Commons licenses will not align perfectly to a particular jurisdiction’s laws.¹

Due to the reality articulated in the immediately preceding sentence above, Creative Commons embarked on an internalization project, which includes a porting process, to ensure that Creative Commons licenses are enforceable in specific jurisdictions, as well as globally. It has been proffered that the Unported licenses serve two purposes. One, the unported licenses may be the actual licenses used by any licensor (copyright owner) around the world, especially if their jurisdiction has not released any jurisdictionally ported licenses yet, as what was the case in the Philippines prior to 15 December 2007. On the other hand, the unported licenses may also serve as a template for Creative Commons jurisdictional affiliates to develop jurisdictionally specific (ported) licenses which are consistent and compliant with the terminologies and mechanics of that specific jurisdiction’s laws, as what the Philippine affiliates did. Needless to say, the porting process involved a conscious balance between (1) maintaining the context of the generic licenses (especially as to matters of permissions and limitations in the legal code) so that the resulting jurisdictional licenses may interoperate with the unported licenses and other jurisdictional licenses, and (2) the proper alignment of the stipulations according to the jurisdiction’s laws to ensure their enforceability in said jurisdiction and elsewhere through treaty obligations. Creating a jurisdictionally ported license does not negate the applicability of the unported license in that jurisdiction.

Answering the questions

For the purpose of clarity and distinction, it might be convenient to paraphrase the first question into “Are the ported licenses (including the Philippine ported one) identical (or same) to the unported/generic license?“; the answer of which is no. On the other hand, “Are the ported licenses (including the Philippine ported one) equivalent or similar (or same) to the unported/generic license?” The answer is yes. The licenses are not the same, in the context that they are not identical. Porting the Creative Commons license according to Philippine laws did not merely require a translation of the terms of the unported licenses to be consistent with the terminologies of Philippine copyright law, nor involved a mere translation of the unported licenses in a local Philippine language. The end results of a mere translation would have been identical licenses, and a better understanding of the unported licenses but without necessarily approximating a perfect alignment of the licenses to a particular jurisdiction’s laws so as to ensure its full enforceability, which is a drawback in the practical sense of licensing. The ultimate aim is to allow the full enforcement of the licenses with the least difficulty in explaining the stipulations. On the other hand, licenses are the same, in the context that they are equivalent. The Philippine-ported Creative Commons license, are equivalent to the unported licenses and other jurisdictional licenses (following the balance in the porting process as stated above). Authors of works licensed under CC BY-SA 3.0 Unported can be enforced in the Philippines, although there may be a need to substantiate the applicability of a stipulation or the meaning of a certain terminology if such are not aligned with Philippine laws. The CC BY-SA 3.0 Philippines can provide clues as to the applicability of the unported stipulation(s) and the meanings of terminologies found in the unported license. This answers a subsequent paraphrased question, “Suppose I license a work under CC BY-SA 3.0 Unported, can I enforced the same in the Philippines, even if I have not license it under a CC BY-SA 3.0 Philippines license?“l the answer of which is yes.

Expounding the subsequent questions still, it can be paraphrased into “Suppose I license a work under CC BY-SA 3.0 Unported, do I need to licensed it concurrently as CC BY-SA 3.0 Philippines?” The answer is no. Multiple licensing under equivalent terms may be awkward for the licensor. The licensor usually licenses his work globally, and he might find it tedious to license his work with the latest unported license, the Philippine-ported license, and forty-three (43) other jurisdictional licenses (and counting) to ensure enforceability in each and every jurisdiction. Further, it might be confusing for the licensee to abide to multiple licenses especially if there are nuances in the chosen concurrent licenses and the licensee may, in the end, choose a concurrent license beneficial to him (and perhaps prejudicial to the licensor) in any claims against his use of such work. I think the other solution is to license it according to the terms of a jurisdictional license (to peg the jurisdictional laws in which one claims his right over the work and right to transact with another in such a manner), like the Philippine-ported one, and rely upon the mechanics of copyright law and treaty obligations to enforce one’s right in most jurisdictions. Again, there is no mandatory obligation to use jurisdictionally ported licenses in lieu of unported or generic ones, although if the jurisdiction — in which the licensor belongs in — has already ported the licenses according to the jurisdiction’s laws, a shift towards jurisdictionally ported license is recommended.

On the other hand, “Suppose I license a work under CC BY-SA 3.0 Unported, did I, in effect, licensed it under the precise terms of CC BY-SA 3.0 Philippines (since CC BY-SA 3.0 Philippines is available), if the work is used and the rights in the license are to be enforced in the Philippines?” The answer is no. Corollarily, “Can I use the terms of the CC BY-SA 3.0 Philippines as the real terms of the license when enforcing CC BY-SA 3.0 Unported in the Philippines? The answer is no. The terms of the unported licenses and the Philippine-ported licenses are not identical. The licensee can only be bound by the specific terms in which he has agreed on. Since inevitably there would be doubts as to the proper terminology and applicability of certain stipulations of the licenses, which are not aligned to a specific jurisdictional law, doubts may inure to the benefit of the licensee, especially if the licensor is not allowed by the court to clarify the context of the parties’ intent in agreeing to the license in question. Hence, to the paraphrased question “Can I use the terms of the CC BY-SA 3.0 Philippines to explain the terms of the CC BY-SA 3.0 Unported according to the context of Philippine law? “; the answer is a qualified yes, i.e. if parol evidence can be presented as an exception to the best evidence rule under Philippine Rules of Court.²

Endnotes

1. With reference to texts found in http://creativecommons.org/international/ [↩]
2. See Section 9 of Rule 130, http://www.supremecourt.gov.ph/rulesofcourt/RULES%20OF%20COURT.htm#rule_130. [↩]

March 22nd, 2008 | Category: Creative Commons | Subscribe to comments | Leave a comment | Trackback URL