Creative Commons licences

Creative Commons licences are standardised licence agreements, drafted by a not-for-profit organisation, by which the author authorises the public in advance and free of charge to use his or her work on terms chosen from a few options that can be combined. They are not an alternative to copyright but a way of exercising it: the work remains protected and the authorisation rests on the author’s exclusive right. Under French law, their validity relies in particular on Article L. 122-7-1 of the French Intellectual Property Code, which recognises the author’s freedom to make his or her works available to the public free of charge.

The options and the six licences

Four elements combine to form six licences. Attribution, which is always present, requires crediting the author and indicating the licence and any modifications. Share-alike obliges anyone distributing a derivative work to place it under the same licence, following a copyleft logic. The non-commercial clause excludes uses primarily intended for commercial advantage or monetary compensation, the boundaries of which remain debated. The no-derivatives clause prohibits the distribution of adaptations. These licences are supplemented by a separate tool by which the author waives his or her rights to the extent permitted by law in order to dedicate the work to the public domain.

The regime under French law

A Creative Commons licence is a non-exclusive, royalty-free, worldwide licence granted for the term of the right, irrevocable as regards those who have accepted it, although the author may cease to offer it for the future. It does not affect moral rights, which are inalienable under French law and which its terms expressly reserve, so that the author retains in particular the right to object to a distortion of the work. The protective formal requirements for assignments have been debated in relation to it, but making a work available free of charge is permitted by statute and the licence specifies the rights granted, their scope and their duration. An author who is a member of a collective management organisation must check that the licence is compatible with his or her mandate.

Pitfalls in practice

A user who breaches a condition of the licence, by omitting attribution or by exploiting commercially a work placed under a non-commercial clause, loses the benefit of the authorisation and commits infringement. The licences cover copyright and, depending on their version, related rights and database rights, but not third-party rights, image rights, trade marks or patents, which the user must check separately. The true identity of the author and his or her ownership are not guaranteed, so that a work wrongly placed under licence by a third party offers no security.

Key points

Creative Commons licences are free, non-exclusive authorisations built from four options, which leave moral rights intact and require strict compliance with their conditions, starting with attribution. Breaching them constitutes infringement. Before using a work under a Creative Commons licence, identify the version and the applicable clauses, check the ownership of the person who placed it under licence and document the attribution.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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