I read somewhere (I cannot recall where) that licensing a work under a Creative Commons license (or any license, really) is like adding a second license on top of the "license" that copyright law grants (i.e. a Creative Commons license grants permission in addition to the permissions normally granted in copyright law). For example, people are allowed to use your work under the fair dealing exception to copyright law, and Creative Commons licenses cannot do anything to restrict such usage.

The CC BY-SA 3.0 license states in section 4(b):

You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible License. If you license the Adaptation under one of the licenses mentioned in (iv), you must comply with the terms of that license.

But then I could conclude that this means that an adaptation of a CC BY-SA work that is licensed under CC BY-SA is technically dual-licensed under "copyright law" and a CC BY-SA license, which would violate section 4(b) which states that a CC BY-SA work can only be licensed under the same license or a later version. Obviously this conclusion is not correct, as there are many people who have created adaptations of CC BY-SA licensed works without a problem.

Am I reading too much into the license, or am I somehow misunderstanding copyright law and how it works with Creative Commons licenses?

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    You seem to believe that copyright law allows any usage of material. That is not so, unless covered by the fair use or similar - which is an extremely limited use case. As such, a license generally is the piece of text that allows you to do anything in the first place with a piece of work, be that text, image, software or whatever. Also law is never a license and vice versa. A license can never be above the law. – planetmaker Aug 16 at 21:35
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    I believe it's actually section 4(b). (creativecommons.org/licenses/by-sa/3.0/legalcode, for convenience) – David Z Aug 16 at 22:52
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    @planetmaker this is an interesting assertion, because copyright law (at least in my jusrisdiction) does allow any usage of material - it grants the authors a certain list of exclusive rights, including but not limited to, making copies and adaptations of the work, but most usage does not involve copying or any of these exclusive rights and thus don't need any permission of licence from the author, they simply are out of scope of copyright law. There are "fair use" limitations to these exclusive rights, but where the law does not impose this exclusivity, you don't need to claim "fair use". – Peteris Aug 17 at 10:57
  • @planetmaker I fundamentally disagree with "a license generally is the piece of text that allows you to do anything in the first place with a piece of work". The general legal principle is that everything not explicitly forbidden is permitted, so in the absence of any specific law, you would be permitted to do anything with that work without any permisssion of licence. In most countries we do have a specific law (matching e.g. Berne convention) that says something like "X is forbidden without author's permission", so you need a licence for X, but only because X is explicitly limited in law. – Peteris Aug 17 at 11:01
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    This is an interesting question because there are jurisdictions where there are compulsory or statutory licensing laws for things like performing music - in the UK the copyright holders cannot block someone from performing a cover of a song they wrote once it has been published. And arranging such a cover song would naturally be considered an Adaptation. – curiousdannii Aug 18 at 2:51

The usual disclaimer: I'm not a lawyer and this is not personalized legal advice.

Am I reading too much into the license, or am I somehow misunderstanding copyright law and how it works with Creative Commons licenses?

Maybe a bit of both. The bottom line is that "copyright law" is not a license itself, it's the legal foundation that makes licensing possible in the first place. In the US (and probably other countries with similar copyright law frameworks) the law basically says that the copyright holder of a creative work is the only one allowed to distribute it, perform it, create and share adaptations of it, and so on. So by default, if you get access to someone else's creative work, you can't share it or adaptations of it at all. That itself is not a license.

What is a license, by comparison, is an agreement between you and the copyright holder that allows you to do certain things with their creative work which you wouldn't ordinarily be allowed to do, in addition to the things that copyright law itself lets you do. For example, making and distributing an adaptation of the work would normally be disallowed, but you can make an agreement with the copyright holder that gives you permission to do that. The terms of the agreement (license) tell you exactly which things you're allowed to do and what conditions you need to follow to be allowed to do them.

The CC BY-SA license relies on that ability to set conditions for otherwise-prohibited activities. Basically, it's a way for the author of a work to say, roughly, "I give you permission to distribute adaptations of this work as long as you agree to give anyone else who gets your adaptation the same extra permissions I gave you, under the same conditions." The "as long as [...]" part of that translates into legalese as the text you quoted. It means, among other things, that you can't attach terms to your adaptation which would, say, block other people from sharing it entirely. (If you try, then you forfeit the extra permissions given to you by the copyright holder, including the right to distribute the adaptation in the first place.) But it's still understood that when you receive a copy of the creative work under the license, you can do anything you would normally be allowed to do under copyright law, e.g. things allowed by the the fair use/fair dealing exception.

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I am unsure exactly what you mean by the 'license granted by copyright law'. Copyright laws generally give creators the SOLE right to copy, distribute, and perform their work as well as the SOLE right to create derivative works. You can gain permission to do some of these things by attaining a license from the copyright holder, which is what the CC BY-SA license is.

For example, people are allowed to use your work under the fair dealing exception to copyright law, and Creative Commons licenses cannot do anything to restrict such usage.

Do you mean Fair Use? That is not a 'license'. It is an exception to the protections created by copyright law for the authors of creative works. In your question if you decide to create a derivative work of a CC BY-SA work and distribute it under the same license as required, you are not providing a "copyright act license".

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  • By "copyright law," I mean something like compulsory or statutory licenses (thank you to @curiousdannii for pointing out the actual term for it). In compulsory licensing, a work can be used without the copyright owner's consent provided that all conditions of compulsory licensing are met. – huanglx Aug 18 at 13:42

In simplest terms, copyright law says two things:

  1. The copyright owner has all rights to the covered work
  2. Everyone else has a very limited set of rights to use the work in specific instances

The second category covers things like "fair use" laws. The specifics of category #2 will vary greatly from one locale to another.

A license is a legal document created by the copyright owner to take some of the rights that the law places in category #1 and share those rights with others. In the case of CC BY-SA, this includes things like the right to redistribute the work. A license cannot take away any of the rights that are already in category #2, it can only add rights to category #2.

To address your underlying issue, copyright law is not a type of license. The rights granted by law are exceptions to the law (that is, they are special use cases where a license is not required and regular copyright law does not apply). Copyright law cannot grant a license, only the copyright owner can do that. Both mechanisms give rights to users of copyrighted works, but they are completely separate mechanisms.

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  • I like your explanation but I wonder if it might give some people the wrong impression to say that a license adds rights to category #2, since people might think category 2 includes those rights which are always available to third parties by law. – David Z Aug 18 at 2:08
  • It is a bit of an oversimplification. The idea is category #2 includes rights granted to everyone by law, plus any rights granted to you by a license. – bta Aug 19 at 13:10

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