In Development

NZGOAL

Introduction

Background

Policy Principles

Explanation of NZGOAL Licenses and Tools

Review and Release Process

Appendix 1 - Glossary of Terms

Appendix 2 - Key Features of New Zealand Copyright Law

Introduction to NZGOAL licences and tools

58 NZGOAL consists of:

• 7 copyright licenses:
  • the six Creative Commons New Zealand law licences; and
  • a restrictive licence for use in situations where the Creative Commons model is not appropriate; and
• a Creative Commons public domain certification (i.e., “no known copyright”) tool (under development).

59 The 7 licences are expected to cover the vast majority of public sector copyright licensing requirements and, over time, to result in considerably greater consistency in licensing approaches across the State Services than currently exists.

60 The public domain certification tool is expected to enable agencies to certify that a work is in the public domain and therefore not subject to any copyright-related restrictions on re-use. It can be used for works which are not copyright works (because they are not qualifying works under the Copyright Act) or which are no longer copyright works in the sense that the relevant term of copyright protection has expired.

61 At the time of writing, Creative Commons’ new public domain certification tool had not yet been released.[21] Communications with Creative Commons reveal that it is under active development. Its appropriateness for New Zealand’s legal environment will be assessed as soon as possible upon its release.[22] Pending its release and positive evaluation, NZGOAL advocates the use of an equivalent and localised public domain statement (discussed below).

62 NZGOAL also supports use of the Creative Commons Plus (CC+) protocol for the probably rare circumstances in which a State Services agency considers a Creative Commons non-commercial licence to be appropriate and wishes to adopt a practical means by which commercial users can ascertain the separate terms for commercial use.

63 The remainder of this section explains:

• the Creative Commons licences;
• the restrictive licence template;
• the Creative Commons public domain assertion tool (or, pending its release, the use of an equivalent and localised public domain statement); and
• the Creative Commons Plus (CC+) protocol.

[Note: in addition to containing a placeholder for the Creative Commons public domain assertion tool, this draft NZGOAL also contains a placeholder for the restrictive licence template, as it too is a work-in-progress.]

Creative Commons licences

The genesis and aim of Creative Commons

64 Creative Commons was founded in 2001 by Professor Lawrence Lessig, Professor of Law at Stanford Law School and proponent of reduced legal restrictions on, among other things, copyright.

65 As noted on the Creative Commons Aotearoa New Zealand website,[23] Creative Commons aims to establish a fair middle way between full copyright control and the uncontrolled uses of intellectual property.[24] It provides a range of copyright licences, freely available to the public, which allow those creating intellectual property – including authors, artists, educators and scientists – to mark their work with the freedoms they want it to carry.

66 The role of Creative Commons licences in the copyright-to-public-domain continuum is usefully summarised on the Creative Commons website as follows:[25]

International standardisation

67 The original set of Creative Commons licences have been “ported” to the laws of multiple jurisdictions.[26] They are now available for the following jurisdictions: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, China Mainland, Colombia, Croatia, the Czech Republic, Denmark, Ecuador, Finland, France, Germany, Greece, Guatemala, Hong Kong, Hungary, India, Israel, Italy, Japan, Luxembourg, Macedonia, Malaysia, Malta, Mexico, Netherlands, New Zealand, Norway, Peru, Philippines, Poland, Portugal, Puerto Rico, Romania, Serbia, Singapore, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, England and Wales, Scotland, Thailand and the United States.

The Creative Commons New Zealand law licences

68 The New Zealand law Creative Commons licences were released towards the end of 2007 by Creative Commons Aotearoa New Zealand, the New Zealand collaborator of Creative Commons International. Te Whāinga Aronui/the Council for the Humanities is leading the development of Creative Commons in New Zealand with, to date, generous pro-bono legal support principally from private sector and academic lawyers. SSC acknowledges and thanks both the Council for the Humanities and those supporting it for the important work they have been doing in this area.

69 There are six Creative Commons New Zealand law licences:

• Attribution 3.0 New Zealand (BY);
• Attribution-Noncommercial 3.0 New Zealand (BY-NC);
• Attribution-Noncommercial-No Derivative Works 3.0 New Zealand (BY-NC-ND);
• Attribution-Noncommercial-Share Alike 3.0 New Zealand (BY-NC-SA);
• Attribution-No Derivative Works 3.0 New Zealand (BY-ND); and
• Attribution-Share Alike 3.0 New Zealand (BY-SA).

70 As noted on the Creative Commons Aotearoa New Zealand website,[27] the licences share a set of baseline rights, with each licence choice being expressed in three ways:

• Commons Deed: A plain-language summary of the licence, with relevant icons.
• Legal Code: The full legal terms.
• Digital Code: A machine-readable translation of the licence that helps search engines and other applications identify the licensed work by its terms of use.

71 The existence of these three forms of expression is significant:

• the Commons Deed form makes the licences readily comprehensible for the public;
• the Legal Code is required to ensure the licences are legally sound; and
• the Digital Code[28] facilitates the distribution and discoverability of the licensed works; such distribution and discoverability is increasingly significant in the digital age as it facilitates, among other things, machine-based indexing and searching of Creative Commons-licensed works by reference to the Digital Code’s metadata.

72 The tables that follow summarise the terms of each of the licences. A summary table is followed by a table setting out the précis for each licence found on the Creative Commons Aotearoa New Zealand website as well as a more detailed listing of the key aspects of each licence.

73 A key point to emphasise at the outset is that, in all cases, Crown copyright or other copyright in the subject material is preserved. The effect of the licences is to allow certain forms of copying, adaptation and distribution.

BY		Attribution
BY-NC		Attribution - Noncommercial
BY-NC-ND		Attribution - Noncommercial - No Derivatives
BY-NC-SA		Attribution - Noncommercial - Share Alike
BY-ND		Attribution - No Derivatives
BY-SA		Attribution - Share Alike

Table: Summary of Creative Commons New Zealand Licences

Licence type	Summary of licence[29]	Key legal aspects of licence[30]
Attribution 3.0 New Zealand (BY)	This licence lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of the licences offered, in terms of what others can do with your works licensed under Attribution.	Key legal aspects: Worldwide, royalty-free, non-exclusive, Licence for use for duration of copyright in the Work Licensee may copy Work, create Adaptations, incorporate Work into Collections, copy Adaptations or Work as incorporated in Collections, and publish, distribute, archive, perform or otherwise disseminate the Work, Adaptation or Work as incorporated in any Collection, to the public Licensee must not impose either terms restricting scope of licence or digital rights management technology on the Work Licensee must not sublicense the Work Licensee must not subject Work to derogatory treatment as defined in Copyright Act (although Licensor waives its moral right to object to derogatory treatment to the extent necessary to enable licensee to reasonably exercise its right under the Licence to make Adaptations) Licensee must reference Licence on all copies of the Work/Adaptations/Collections published, distributed, performed or otherwise disseminated to the public Licensee must recognise Licensor’s/Original Author’s right of Attribution (right to be identified) Licensee must not assert/imply sponsorship or endorsement by Original Author or Licensor without express prior written permission Licensee must, to extent reasonably practicable, keep intact all notices that refer to the Licence Licensor waives the right to collect royalties for any exercise by licensee of rights granted under the Licence Except as required by law or agreed in writing between parties, Work is licensed by Licensor on “as is” and “as available” basis without any warranty of any kind, express or implied Except as not permitted by law, Licensor excludes all liability for loss or damage Licence terminates automatically upon breach by licensee of terms of Licence
Attribution-Noncommercial 3.0 New Zealand (BY-NC)	This licence lets others remix, tweak, and build upon your work noncommercially and although their new works must also acknowledge you and be noncommercial, they do not have to license their derivative works on the same terms.	Same key legal aspects as Attribution 3.0 New Zealand (BY) licence (immediately above) except that: Licence limited to “Non-Commercial use”. “Non-Commercial” means “not primarily intended or directed towards commercial advantage or private monetary compensation” Licence preserves right to collect royalties for any use of the Work which results in commercial advantage or private monetary compensation (but Licensor still waives right to collect royalties for any use of the Work which does not result in commercial advantage or private monetary compensation)
Attribution-Noncommercial-No Derivative Works 3.0 New Zealand (BY-NC-ND)	This licence is the most restrictive of the six main licences, allowing redistribution. This licence is often called the “free advertising” licence because it allows others to download your works and share them with others as long as they mention you and link back to you, but they cannot change them in any way or use them commercially.	Same key legal aspects as Attribution-Noncommercial 3.0 New Zealand (BY-NC) licence (immediately above) except that: The right to create Adaptations and all other rights in relation to Adaptations have been removed and there is an express prohibition on the making of any Adaptations There are consequential amendments reflecting the reduced scope of the Licence

Attribution-Noncommercial-Share Alike 3.0 New Zealand (BY-NC-SA)	This licence lets others remix, tweak, and build upon your work noncommercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work as they can with the BY-NC-ND licence, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same licence; so any derivatives will also be noncommercial in nature.	Same key legal aspects as Attribution-Noncommercial 3.0 New Zealand (BY-NC) except that: There are new provisions (including a new definition of “Licence Elements”) requiring the licensee to make any Adaptation or Adaptation as incorporated in a Collection available to third party users on either the same terms and conditions of this Licence or a later version of it or any other Creative Commons licence (whether the Unported or a jurisdiction licence) with the same Licence Elements
Attribution-No Derivative Works 3.0 New Zealand (BY-ND)	This licence allows for redistribution, commercial and noncommercial use of your work, as long as it is passed along unchanged and whole, with credit to you.	Same key legal aspects as Attribution 3.0 New Zealand (BY) licence except that: The right to create Adaptations and all other rights in relation to Adaptations have been removed and there is an express prohibition on the making of any Adaptations There are consequential amendments reflecting the reduced scope of the Licence
Attribution-Share Alike 3.0 New Zealand (BY-SA)	This licence lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This licence is often compared to open source software licences. All new works based on yours will carry the same licence; so any derivatives will also allow commercial use.	Same key legal aspects as Attribution 3.0 New Zealand (BY) licence except that: There are additional provisions (including a new definition of “Licence Elements” (similar to that in the Attribution-Noncommercial-Share Alike 3.0 licence) and “Creative Commons Compatible Licence” (not found in any other New Zealand Creative Commons licence)) requiring the licensee to make any Adaptation or Adaptation as incorporated in a Collection available to third party users on either the same terms and conditions of this Licence or a later version of it or any other Creative Commons licence (whether the Unported or a jurisdiction licence) with the same Licence Elements or a Creative Commons Compatible Licence

Restrictive Licence template

74 [As noted above, the restrictive licence template is a work-in-progress. It is not yet ready for release. It is expected to be recommended for use where the Creative Commons model is not appropriate but where more limited forms of release, whether with or without charging, are necessary or desirable.]

Creative Commons Public Domain Certification tool

Interim solution

75 As noted at paragraph 61 above, at the time of writing Creative Commons’ new public domain certification tool had not yet been released.

76 Pending its release and evaluation for inclusion in the NZGOAL, agencies releasing material which is not subject to copyright or other intellectual property rights are encouraged to add a statement at the point of release (and in the material itself if practicable) to this effect:

“To the best of [name of agency]’s knowledge, under New Zealand law:

• there is no copyright or other intellectual property rights in this [identify material in question]; and
• it may be copied and otherwise re-used without copyright-related restriction.

[While [name of agency] has sought to ensure there are no intellectual property rights in the material under New Zealand law that would prevent copying and other re-use, please note that the [identify material in question] is released on an as-is basis and with no representations or warranties of any kind, to the greatest extent permissible by law. Subject to any liability which may not be excluded or limited by law, [name of agency] shall not be liable on any legal basis (including without limitation negligence) and hereby expressly excludes all liability for loss or damage howsoever and whenever caused to you in connection with your use of the material.]”

77 The last paragraph in square brackets is optional. Its purpose is to protect the releasing agency from liability in the event that:

• there are, in fact, intellectual property-related restrictions on copying or other re-use of the released material; or
• someone relies on the released material in a way which subsequently causes harm (e.g., economic loss).

78 It is for the releasing agency to determine whether there is any risk warranting the inclusion of that paragraph.

Warning

79 Agencies should appreciate, however, that adding the statement in paragraph 76 above to released material in the absence of their having a high level of confidence in there being no copyright or other intellectual property rights in the material (or any components of it) may expose end users – the people of New Zealand and others – to legal risk in the form of third party complaint or action against them. In addition, the exclusion of liability (which is consistent with the Creative Commons licensing model) transfers legal risk to those end users. Should it transpire, for example, that the material:

• constitutes a third party copyright work;
• contains third party copyright components;
• contains trademarks or other protected names, symbols or marks;
• contains confidential or personal information or information which otherwise ought not to be disclosed such as Māori or other cultural traditional knowledge or culturally sensitive material; or
• encourages action that would infringe a third party’s patent,

then users of the material may be exposed to legal or other risk. Because agencies should not be exposing end users of such material to liability risks vis-à-vis true intellectual property right owners or other right holders, the material should not be publicly released on such terms if doing so would breach others’ intellectual property or other rights.

80 Similarly, the above statement should not be used if the relevant material needs to be disclosed under the Official Information Act 1982 but the agency does not have the high level of confidence referred to above. Releasing such material following a request under the Official Information Act neither requires such a statement nor entitles others to reproduce the material in any way which would infringe a third party’s intellectual property rights.

Creative Commons Plus (CC+) protocol

81 Where an agency wishes to licence material pursuant to a non-commercial variant of Creative Commons licence, and offer a separate fee-based arrangement for commercial use, it could utilise the Creative Commons Plus protocol (also referred to as CCPlus or CC+). As noted on the Creative Commons website:[31]

“CC+ is a protocol providing a simple way for users to get rights beyond the rights granted by a CC license. For example, a work’s Creative Commons license might offer noncommercial rights. With CC+, the license can also provide a link by which a user might secure rights beyond noncommercial rights — most obviously commercial rights, but also additional permissions or services such as warranty, permission to use without attribution, or even access to performance or physical media.

The CC+ architecture gives businesses a simple way to move between the sharing and commercial economies. CC+ provides a lightweight standard around these best practices and is available for implementation immediately.”

82 There are various ways in which CC+ can be implemented, the simplest being the presence of additional graphical or text-based links to the arrangements governing commercial use:[32]

Or, for example:

My Book by Jon Phillips is licensed under a

<a rel=”license” href=”http://creativecommons.org/licenses/by-nc/3.0/” > Creative Commons Attribution Non-Commercial 3.0 License</a > .

Permissions beyond the scope of this license may be available at <a xmlns:cc=”http://creativecommons.org/ns#” rel=”cc:morePermissions” href=”http://somecompany.com/revenue_sharing_agreement” > somecompany.com</a > .

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[21] Creative Commons’ existing and partly deprecated Public Domain Certification and Dedication tool, which is based on US law and expected to be phased out entirely once the new public domain certification tool is released, is not considered appropriate for the NZGOAL.

[22] For the avoidance of doubt, the Creative Commons CC0 (‘CC Zero’) tool has not been overlooked. NZGOAL does not support governmental use of that tool.

[23] http://www.creativecommons.org.nz/

[24] While the Creative Commons Aotearoa New Zealand website uses the phrase “the extremes of copyright control”, it is noted that this is a phrase with which some take issue; see, e.g., “Creative Commons - the fine print”, 16 April 2008, at http://www.copyright.org.nz/viewArticle.php?article=479 Nothing in the NZGOAL should be construed as questioning current New Zealand copyright law.

[25] http://creativecommons.org/about/

[26] The reference here to “porting” means ensuring the licences are compatible with a jurisdiction’s domestic law and making them subject to that law.

[27] http://www.creativecommons.org.nz/choose_and_apply_a_cc_licence

[28] The Digital Code can be found by following the process at: http://creativecommons.org/license/?jurisdiction=nz

[29] These summaries are taken from the Creative Commons Aotearoa New Zealand website, at:

http://www.creativecommons.org.nz/choose_and_apply_a_cc_licence

[30] Capitalised terms are defined within the licence.

[31] http://wiki.creativecommons.org/CCPlus See also “CC and CC+ Overview for the World Wide Web” (http://wiki.creativecommons.org/images/c/cb/Ccplus-general.pdf) and “CC+ Technical Implementation for the World Wide Web” (http://wiki.creativecommons.org/images/0/06/Ccplus-technical.pdf).

[32] See http://wiki.creativecommons.org/CCPlus#What_is_a_simple_way_of_explaining_CC.2B.3F for further examples. Overseas, services are even beginning to crop up which mediate and facilitate the commercial selling side of the equation; see, for example, www.ozmo.com.