This article is written by Nisha Modal, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawsikho.com.

Introduction

‘Intellectual property’ is the term used for all works that generate from an innovative mind, in which a person’s thinking, reasoning, creative and analytical skills are put to use. Any form of creative work, whether it is literary, artistic, cinematographic etc. in nature comes under the ambit of intellectual property. Such works are therefore legally protected through copyrights granted to the creators. The basic premise behind the idea of copyrights is that only the copyright holder will be legally permitted to utilize, publish, exhibit, reproduce, distribute his work to the public, or make any adaptations of the same. It also empowers the creator to restrict a third party from copying his work and exploiting the rewards.

While on one hand, the strict protection granted by copyrights proved beneficial, however on the other, it imposed a lot of restrictions due to which the public access to copyrighted works was greatly affected. Due to the legal sanctions under copyright statutes, any creative work which had a copyright granted to it could not be used, displayed or distributed except by those few who had obtained licenses, even if such use was for the benefit of the public at large. Owing to this, copyright protection was soon regarded as being restrictive and counterproductive, and there was the rising need for a system wherein rights of creators could be protected while allowing greater public access to their work. This led to the emergence of ‘Creative commons licenses.’

Creative commons licenses

In light of this dilemma, the idea of public copyright licenses was conceived. It was thought of as a mechanism to expand the scope of accessibility of copyrighted content, so as to enable more and more people to utilize and benefit from such content. These licenses allowed creators to grant permissions for the use of their work in the form of a license, wherein all people in the general public were the licensees.

A Creative commons (CC) license is a type of a public copyright license, issued by an American non-profit organization called ‘Creative Commons’, which has now been globally recognized for their work.^[i] By virtue of such licenses a creator can retain his copyright, while simultaneously granting permission to the general population to copy, distribute, build upon his work or engage in any other activities that would otherwise amount to infringement. CC licenses offer a variety of license types, each with their own set of terms and conditions. There is one common aspect found in most of the license types, which is the mandatory requirement of attribution being given to the creator. Besides this, there are certain variations in the rights extended to licensees with each different license type. Some allow only non-commercial use of the copyrighted work (CC- NC), while some do not permit for any derivative works to be created from the original content (CC- ND). There is also one distinct type of CC license through which the creator can relinquish his copyright and release his work into the public domain (CC0). Due to this vast array of license types, CC licenses are being increasingly adopted for several types of creative content, including music, artistic works, photographs, databases etc. in order to allow a vast majority of the people to benefit from these works.

CC license for a database

A database, in simple terms, means a compilation of all the information, analysis, statistics etc. gathered by an agency, company or individual. Data forms the backbone of any kind of work, since information is the very basic requirement for proceeding with any activity. Without access to proper data, any work will amount to shooting an arrow in the dark. Due to this growing importance of data, it often becomes necessary to use data that may have been acquired or gathered by others in order to gain more comprehensive intelligence regarding the subject. However, this sharing of data is hindered by the protective restrictions imposed upon databases, which allow limited access to the information. This led to a standstill in the process of creating a widespread network of data sharing, since each individual or company sought to protect their work by restricting the access of others.

As a solution to this, most databases are now being licensed out using CC licenses^[ii]. This serves the purpose of both the licensors and licensees, since it protects the interests of the database creator while allowing his work to aid and benefit others. The CC licensing mechanism allows a database to be widely accessed, while protecting the copyright vested in it and enforcing a requirement on the licensees to attribute the licensor while publically using his work. It protects the creator of the database by also enforcing his sui generis database rights. These rights safeguard the investment of the creator towards compiling the database, and thereby prevent the outright reuse and copying of major components of the data. It even imposes restrictions on the incessant extraction of the minor components of the data.

The most vital step that must be undertaken by a potential licensor before deciding to license out his database is to ensure that he exclusively possesses all the rights necessary to do so. If the database is sought to be licensed out by a database provider, who is not the original author of the same, he must obtain the necessary consent from the author before issuing a CC license. During the process of decision making about a license, the licensor must first and foremost reflect upon the purpose which he seeks to achieve through the open distribution of his work. Secondly, he must also consider any prior obligations that may have been imposed on him which will specifically require a particular license type to be chosen. CC offers a variety of choices to the licensors as to the type of license they opt for. These licenses contain one or more of the basic licensing terms of CC which are^[iii]:

• ‘BY’, which requires attribution to the licensor so as to help people identify by whom the work has been created.
• ‘SA’, which stands for ‘Share Alike’, which requires further licensing to be done on identical terms as those of the original content.
• ‘NC’, which means ‘Non-Commercial’ and allows for only non-commercial use for the content.
• ‘ND’ i.e. ‘Non-Derivative’ which does not permit derivatives from the original work

There are also two different versions of licenses to choose from. The older version of licenses, i.e. CC 3.0 licenses strictly enforce only the copyright, but not sui generis rights. This means that if a database carrying sui generis rights is substantially reused, but in a way that does not implicate copyrights, the licensee shall not be required to comply with the restrictions and prohibitions of the license terms. On the other hand, the CC 4.0 licenses cover sui generis rights as well as copyrights associated with a database. Another type of CC license commonly used with respect to databases is CC0, which allows the creator to give up the rights on his work, and release the data into public domain. This license is the most suitable for databases which relate to government workings or scientific research, as it allows the users to freely access the data without any restrictions, which helps in optimum utilization of the information. This license type has been applied to the databases of The National Library of Spain, The British Library etc.

When a CC license is applied to a database, the following aspects come under the ambit of the terms of licensing:

• The form and structure of the database, which includes its manner of arrangement and presentation of the data. However, the database structure can be licensed out only to the extent for which a copyright has been acquired.
• The information laid down in the database. However, for the database content to be licensed out, it must be copyrightable in the first place. Thus, the information must contain some aspect of originality and creativity of the database maker for it to be included under the terms of licensing.
• The sui generis database rights, if any, vested in the database creator.

It is the discretion of the licensor whether he wants to license all or some of the rights arising. Thus he may restrict the operation of the license to only certain aspects of the database, and retain the right of exclusive use of the other aspects. Taking into account all these determining factors, there are certain nuances regarding the use of a database with a CC license attached to it, which must be strictly abided by.

Using a database with a CC license

Once a database has been licensed, the various terms and conditions that are characteristic of CC licenses become applicable for the use of the licensed material. The way and purposes for which a database may be utilized will be dependent upon the type of license that has been applied. If a CC0 license is used, no restrictions are imposed upon the use of the database. This license type has been adopted by the Swedish National Library, by virtue of which their data and files have been released into the public domain^[iv]. 

The basic license terms such as attribution, non-commercial use etc. will be enforced in either versions of the license, however there is a distinction in the circumstances under which they will be enforced. If the database has been licensed through the prior version 3.0 version of CC licenses, the terms of use are far more liberal. This version of the license does not require compliance with the restrictions and prohibitions imposed by the license terms if the copyrights arising from the database are not implicated. Hence users may freely modify, reuse and rearrange un- copyrightable aspects of the data, since such use would not implicate the copyright. The Austrian Government has imposed this license type and has made its data freely accessible.^[v]

On the other hand, the new version 4.0 of CC licenses is more suited towards giving wider protection for the licensor. It provides that the restrictions and prohibitions imposed by the license terms must be applied when any part of the database covered by copyrights or sui generis rights is used. By enforcing the sui generis rights, the license guarantees that there shall be no extraction and reusing of major parts of the data without express permission and attribution to the licensor. This type of license has been adopted by the Paleobiology Database (PBDB)^[vi], which is the largest compilation of information relating to fossils. The data is now available to the public under the terms of CC licensing, with the prerequisite for PBDB to be accredited whenever their database is used.

Conclusion

The conception of CC public licenses revolutionized the way in which content protected by intellectual property statutes was used. It broke down the strict barriers that existed between those who could access certain content, and those who could not. The use of these licenses for databases has enabled information to be shared among like-minded people, as a result of which there is greater scope for further development in the scientific, literary, administrative etc. fields. It has transformed information from all over the globe into one single compilation, to which no interested person can be denied access.

References

[i] https://creativecommons.org/about/

[ii]https://wiki.creativecommons.org/wiki/Data#Which_components_of_a_database_are_protected_by_sui_generis_database_rights.3F

[iii] https://creativecommons.org/licenses/

[iv] https://wiki.creativecommons.org/wiki/CC0_use_for_data#Swedish_National_Library

[v] https://wiki.creativecommons.org/wiki/Data_and_CC_licenses#Austrian_government

[vi] https://wiki.creativecommons.org/wiki/Data_and_CC_licenses#Paleobiology_Database

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