BC COMMONS LEGAL CODE (v2)

SUMMARY OF BC COMMONS LICENSE (Version 2)

THIS LICENSE APPLIES TO ANY WORK THAT IS EXPRESSED TO BE LICENSED PURSUANT TO THE BC COMMONS LICENSE (VERSION 2.0).

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS BC COMMONS LICENSE (THE “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAWS. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED IN THIS LICENSE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED IN THIS LICENSE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

THE LICENSE IS PROVIDED “AS IS”, AND DOES NOT INCLUDE ANY LICENSE OF ANY THIRD PARTY MATERIALS THAT MAY BE INCLUDED IN THE WORK, UNLESS SUCH THIRD PARTY MATERIALS ARE LICENSABLE BY LICENSOR. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU HAVE OBTAINED ALL NECESSARY RIGHTS FOR ANY THIRD PARTY MATERIALS THAT ARE INCLUDED IN THE WORK.

Article 1: Definitions

1.1 Definitions

In this License, including the recitals and the schedules, the following words and expressions have the following meanings unless the context otherwise requires:

“Affiliate” of any Person means any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person, and for the purposes of this definition “control” (including correlative meanings of the terms “controlled by” and “under common control with”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of shares or by contract or otherwise.

“BC K-12 Educational Institutions” means, collectively, those schools, including without limitation, public schools. independent schools, francophone schools, provincial schools, distributed learning schools and First Nations schools, which are offering a course of studies to students in any one or more of pre-kindergarten, kindergarten and grades 1 to 12, where the students have personal education numbers (PENs) assigned to them by the Ministry of Education of the Province of British Columbia or any successor thereto.

“BC Public Post-Secondary Educational Institutions” means, collectively, the universities as defined by the University Act (British Columbia), the institutions as defined by the College and Institute Act (British Columbia), the university as defined by the Royal Roads University Act (British Columbia), the university as defined by the Thompson Rivers University Act (British Columbia), the Knowledge Network Corporation as defined by the Knowledge Network Corporation Act (British Columbia), any successor institutions as defined in any successor legislation or as designated by the Ministry of Advanced Education and Labour Market Development and any successors thereto; provided that (except for the ministry and successors thereto) such institution has a physical presence within British Columbia.

“BCcampus” means Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Advanced Education and Labour Market Development, and its successors and assigns (whether doing business under the name BCcampus or another name).

“Collective Work” means a work in which any two or more of the following works are assembled into a collective whole:
(a) the Work in its entirety in unmodified form;
(b) one or more Learning Objects that are part of the Work in their entirety in unmodified form;
(c) one or more Derivative Learning Objects in their entirety in unmodified form;
(d) one or more Derivative Works that are separate and independent works in themselves, in their entirety in unmodified form; and
(e) one or more other contributions, constituting separate and independent works in themselves.
A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

“Derivative Learning Object” means a work that is a Learning Object and that is based upon one or more Learning Objects that are part of the Work or any part of such Learning Objects or upon one or more Learning Objects that are part of the Work or any part of such Learning Objects and other pre-existing works. A work that constitutes a Derivative Learning Object will be considered a Derivative Work (as defined below) for the purposes of this License, but the use of a Derivative Learning Object in a Collective Work will not by itself make the Collective Work a Derivative Work.

“Derivative Work” means a work based upon the Work or any part thereof or upon the Work or any part thereof and other pre-existing works, such as (without limitation) a new online or distance learning program or Learning Object, translation, video or motion picture version, sound recording, art reproduction, musical arrangement, dramatization, fictionalization, abridgment, condensation, or any other form in which the Work or any part thereof may be recast, transformed or adapted, and includes a Derivative Learning Object; provided however that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License.

“Designated Agency” means the agency or agencies appointed from time to time by the Ministry of Advanced Education and Labour Market Development or the Ministry of Education or any successors thereto to perform certain administrative functions in relation to this License and the Work.

“Eligible Educators” means, collectively:
(a) BCcampus;
(b) the ITA;
(c) the Virtual School Society;
(d) the BC Public Post-Secondary Educational Institutions;
(e) the ITA Trainers;
(f) the BC K-12 Educational Institutions; and
(g) all other Persons who have been designated from time to time by both the Designated Agency and Licensor as Eligible Educators for the purpose of this License and in relation to the Work; provided however that such Persons will be subject to any terms and conditions that the Designated Agency and Licensor may specify at the time of such designation or at any time thereafter,
and “Eligible Educator” means any of them. For clarity and the avoidance of doubt, Eligible Educators does not include any Affiliate of an Eligible Educator, unless approved in writing by Licensor.

“Eligible Students” means, collectively:
(a) those individuals who are enrolled with a BC Public Post-Secondary Educational Institution for full time or part time studies;
(b) those individuals who are registered with the ITA as trainees, as defined in the Industry Training Authority Act (British Columbia) including, for greater certainty, apprentices, and those individuals who are enrolled in a foundation program with an ITA Trainer;
(c) those individuals who are enrolled with a BC K-12 Educational Institution for full time or part time studies and who have personal education numbers (PENs) assigned to them by the Ministry of Education of the Province of British Columbia or any successor thereto; and
(d) all other Persons who have been designated from time to time by both the Designated Agency and Licensor as Eligible Students for the purpose of this License and in relation to the Work; provided however that such Persons will be subject to any terms and conditions that the Designated Agency and Licensor may specify at the time of such designation or at any time thereafter,
and “Eligible Student” means any of them.

“ITA” means the Industry Training Authority established under the Industry Training Authority Act (British Columbia), and its successors and assigns (whether doing business under the name Industry Training Authority or another name).

“ITA Trainer” means a Person who has been designated by the ITA as a trainer, as defined in the Industry Training Authority Act (British Columbia).

“Learning Object” means a modular digital resource that is uniquely identified, and that can be used to support learning.

“Licensable” means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.

“Licensor” means the individual or entity that offers the Work under the terms of this License.

“Original Author” means the Person who created the Work.

“Person” means an individual, partnership, corporation, joint stock company, trust, unincorporated organization, joint venture, limited liability company, government or an agency or political subdivision thereof or other form of legal entity.

“Virtual School Society” means the The Virtual School Society, a society under the Society Act (British Columbia), and any successors thereto.

“Work” means the copyrightable work of authorship offered under the terms of this License.

“You” means a Person exercising rights under this License who is an Eligible Educator or an Eligible Student and who has not previously violated the terms of this License with respect to the Work, or who has received express written permission from Licensor to exercise rights under this License despite a previous violation. For clarity and the avoidance of doubt, if you are an Eligible Educator, “You” does not include any of your Affiliates, unless approved in writing by Licensor.

Article 2: Grant of License

2.1 Grant of License to Eligible Educators

If You are an Eligible Educator, then, subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright and for so long as You remain an Eligible Educator) license to exercise the rights in the Work as stated below, to the extent and only to the extent that such rights are Licensable by Licensor:

(a) to produce and reproduce the Work or any part thereof, to incorporate the Work into one or more Collective Works, and to produce and reproduce the Work as incorporated in the Collective Works;

(b) to create, produce and reproduce Derivative Works;

(c) to perform publicly by means of an online or other digital video or audio transmission, or to otherwise publicly display or publicly perform:

(i) the Work including as incorporated in Collective Works; and

(ii) Derivative Works,

in each case either: (i) as part of and only as part of a publicly offered credit or non-credit course or program which is provided by You to the recipients of such performance or display; or (ii) for any other purpose that is approved in writing by Licensor in advance; and

(d) to distribute copies of the Work or Derivative Work to:

(i) an Eligible Student;

(ii) any Person as part of a publicly offered credit or non-credit course or program which is provided by You to such Person; or

(iii) an Eligible Educator.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. The above rights include the right to provide the Work to third party contractors, on appropriate obligations of confidentiality, so that such third party contractors may assist You in the exercise of the above rights. All rights not expressly granted by Licensor are hereby reserved.

2.2 Eligible Educator License Restrictions

If You are an Eligible Educator, then the license granted in Section 2.1 is expressly made subject to and limited by the following restrictions:

(a) You may distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of the Work You distribute, publicly perform or publicly display. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

(b) You may distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform a Derivative Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of each Derivative Work You distribute, publicly perform or publicly display. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

(c) If You create a Derivative Work, You must notify the Designated Agency, provide a copy of the Derivative Work to the Designated Agency in such manner and format as the Designated Agency may reasonably request, and enter into the then standard agreement of the Designated Agency providing that the Derivative Work may be distributed by the Designated Agency under this License. The Designated Agency is an intended third party beneficiary of this Section.

(d) If You distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work. Unless otherwise specified by the Licensor in the Work or by notice, you must give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., “Learning Object 3 based on original Work by Original Author”). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

(e) From time to time at the request of Licensor or the Designated Agency, You will provide such information as Licensor or the Designated Agency may reasonably request relating to your use of the Work, and relating to the development of any Collective Works or Derivative Works. From time to time at the request of Licensor or the Designated Agency, You will allow representatives of Licensor or the Designated Agency access at reasonable hours to your personnel and to your systems, records and other pertinent information, all to the extent necessary for the purpose of confirming your compliance with the terms of this License. The Designated Agency is an intended third party beneficiary of this Section.

2.3 Third Party Materials

If You are an Eligible Educator and the Work contains any third party materials, then, at your own expense, You must obtain from the applicable third parties all necessary rights for the use of the Work as provided in this License and You must indemnify, defend, and hold harmless the Designated Agency, BCcampus, the ITA, the Virtual School Society, and their directors, officers, employees and agents from and against any and all losses, claims, damages, actions, causes of action, costs and expenses (including legal costs on a solicitor and own client basis) that any of them may sustain, incur, suffer, or be put to at any time, either before or after the expiration or termination of this License, where the same are based upon, arise out of or occur, directly or indirectly, by reason of any claim that any use by You of the Work infringes any copyright, moral right, trademark right, patent, trade secret or other intellectual property right of such third party. The Designated Agency, BCcampus, the ITA, the Virtual School Society, and their directors, officers, employees and agents are intended third party beneficiaries of this Section.

2.4 Third Parties

(a) If You are an Eligible Educator, then each time You distribute to an Eligible Educator or an Eligible Student:

(i) the Work or a Collective Work, Licensor offers to the recipient a license to the Work; or

(ii) a Derivative Work, Licensor offers to the recipient a license to the original Work,

in each case on the same terms and conditions as this License.

(b) If You are an Eligible Educator, then each time You perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform a Work, Collective Work or Derivative Work to or for a Person as part of a publicly offered credit or non-credit course or program which is provided by You to such Person or distribute to a Person copies of the Work or a Derivative Work as part of a publicly offered credit or non-credit course or program which is provided by You to such Person:

(i) in the case of the Work or a Collective Work, Licensor offers to the recipient a license to the Work; or

(ii) in the case of a Derivative Work, Licensor offers to the recipient a license to the original Work,

to use the same for such Person’s personal use in association with and only in association with such course or program and for no other purpose.

2.5 Grant of License to Eligible Students

If You are an Eligible Student, then, subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright and for so long as You remain an Eligible Student) license to exercise the rights in the Work as stated below, to the extent and only to the extent that such rights are Licensable by Licensor:

(a) to use the Work for personal educational purposes; and

(b) to use the Work to assess whether You wish to take a course of studies relating to the subject matter of the Work or offered by an individual involved in the creation of the Work.

All rights not expressly granted by Licensor are hereby reserved.

2.6 Eligible Student License Restrictions

If You are an Eligible Student, then the license granted in Section 2.5 is expressly made subject to and limited by the following restrictions:

(a) You are not authorized to create, produce or reproduce Derivative Works or to incorporate all or any part of the Work into a Collective Work.

(b) You are not authorized to distribute the Work to any Person by any means, including by means of an online or other digital video or audio broadcast or transmission.

2.7 Fair Dealing Rights

Nothing in this License is intended to reduce, limit, or restrict any rights arising from fair dealing or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

Article 3: Disclaimer and Limitation of Liability

3.1 Disclaimer

YOU ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENSE, THE WORK IS LICENSED ON AN “AS IS” BASIS AND LICENSOR MAKES NO WARRANTY, REPRESENTATION, INDEMNITY OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK, AND YOU HEREBY WAIVE AND DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.

3.2 Limitation on Liability

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR CLAIMS OF THIRD PARTIES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING ARE HEREBY WAIVED AND RELEASED BY YOU.

Article 4: Termination

4.1 Term

Subject to the terms and conditions of this License, the license granted herein is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated pursuant to Section 4.2.

4.2 Termination for Breach

This License and the rights granted hereunder will terminate automatically if You cease to be an Eligible Educator or Eligible Student, as applicable, or upon any breach by You of the terms of this License. However, if you are an Eligible Educator, Persons who have received the Work or a Derivative Work or a Collective Work under this License will not have their licenses terminated, provided such Persons remain in full compliance with those licenses.

4.3 Survival of Terms

Sections 2.2(f), 3.1 and 3.2 and such other provisions as may reasonably be expected to remain in force will survive the expiration or termination of this License and will remain in full force and effect following such expiration or termination. The expiration or termination of this License will not affect the rights of any party to make a claim for damages arising from a breach of any provision of this License which occurred prior to such expiration or termination.

Article 5: General

5.1 Governing Law

(a) This License will be governed by and construed in accordance with the substantive laws of British Columbia and the federal laws of Canada applicable in British Columbia, without regard to the conflict of law rules of British Columbia.

(b) The parties irrevocably submit to and accept generally and unconditionally the exclusive jurisdiction of the courts and appellate courts of British Columbia with respect to any legal action or proceeding which may be brought at any time relating in any way to this License. Each of the parties irrevocably waives any objection it may now or in the future have to the venue of any such action or proceeding, and any claim it may now or in the future have that any such action or proceeding has been brought in an inconvenient forum.

(c) The International Sale of Goods Act of British Columbia and the United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this License or to the transactions contemplated by this License or otherwise to create any rights or to impose any duties or obligations on either party to this License. Any rights which have arisen or which might in the future arise under the International Sale of Goods Act or the United Nations Convention on Contracts for the International Sale of Goods are waived and released by both parties to this License.

5.2 Good Faith

You agree to act reasonably and in good faith in the exercise of your rights under this License.

5.3 Assignment

This License is not assignable by You in whole or in part without the prior written consent of Licensor. Any attempt by You to assign any of the rights or to delegate any of the duties or obligations of this License without such prior written consent is void.

5.4 Joint and Several Obligations

If Licensor is two or more Persons, then the obligations of Licensor in this License are joint and several obligations of each of them.

5.5 Waiver

No failure or delay on the part of either party in exercising any power or right under this License will operate as a waiver of such power or right. No single or partial exercise of any right or power under this License will preclude any further or other exercise of such right or power. No modification or waiver of any provision of this License and no consent to any departure by either party from any provision of this License will be effective until the same is in writing. Any such waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on either party in any circumstances will entitle such party to any other or further notice or demand in similar or other circumstances.

5.6 Entire License

This License constitutes the entire agreement between the parties with respect to the Work licensed here. There is no representation, warranty, collateral term or condition or collateral agreement affecting this License, other than as expressed in writing in this License.

5.7 Invalidity of Particular Provision

If any provision of this License or any part of any provision (in this section called the “Offending Provision”) is declared or becomes unenforceable, invalid or illegal for any reason whatsoever including, without limiting the generality of the foregoing, a decision by any competent courts, legislation, statutes, bylaws or regulations or any other requirements having the force of law, then the remainder of this License will remain in full force and effect as if this License had been executed without the Offending Provision.

5.8 Interpretation

Unless otherwise specifically provided in this License, time will be of the essence of this License and of the transactions contemplated by this License. The remedies provided to the parties under this License are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute. No change or modification of this License will be valid unless it is in writing and signed by each party to this License. Nothing in this License will make or be construed to make You and Licensor partners or agents of each other or to create any other relationship by which the acts of either may bind the other or result in any liability to the other. The headings and captions of sections and articles contained in this License are all inserted for convenience of reference only and are not to be considered when interpreting this License. Subject to the restrictions on assignment contained in this License, this License will enure to the benefit of and be binding on the parties and their respective successors and assigns.

BC COMMONS NOTICE

None of BCcampus, the ITA, the Virtual School Society or the Designated Agency incurs any obligations or makes any warranties whatsoever in connection with this License or the Work. BCcampus, the ITA, the Virtual School Society and the Designated Agency will not be liable to you or any other Person on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection with this License or the Work. You hereby release each of BCcampus, the ITA, the Virtual School Society, and the Designated Agency from any and all claims, present and future, with respect to this License or the Work. Notwithstanding the foregoing three sentences, if BCcampus, the ITA, the Virtual School Society, or the Designated Agency has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.