Četvrto poglavlje

Mapping Out the Domain of Open Content Licenses

There are various ways in which we can map out the various kinds of open content licenses. These are:

1. On the basis of the medium they address
   b. On the nature of the license
   c. On the validity of the license
   

As with any other attempt at mapping, the task can only be an imprecise one. Whilst we are making a broad map available for the user to help him/ her navigate through the licenses, we would also encourage you to read these licenses in their full text form. This will overcome the initial fear that legal language always instills in people. Instead it will allow you to see the license more as a possible narrative or as a piece of design in itself.

a. On the basis of the medium they address

The next manner in which we can group the open content licenses is by looking at the medium that the licenses seek to address. At the outset it must be stated that while choosing a license, you will first want to see whether it is a general license or a specific license. A general license can be seen as a "One size fits all" kind of license where the specific nature of the content does not matter. You will be choosing the license not because it is specifically designed for the medium in which your work resides, say music, but for the content of the license. The open content, Creative Commons licenses are examples of general content licenses. The specific license on the other hand, is a license that is designed with a particular medium in mind. There are not a whole range of licenses in this segment, and most of the specialized licenses attempt to deal with the question of music. Thus within music, you have a choice of the EFF Free Audio License, the Ethymonics Free Music License, the Open Music licenses as well as the Creative Commons music license. It always make sense to choose a specific license over a general license as it may be more suited to your needs and addresses some of the nuanced requirements that may arise from a particular media.

b. On the nature of the license

Finally, the open content licenses can also be categorized according to the nature of the license. There are some licenses which may be closer to the principle of the GNU GPL, which means that they believe in "absolute" freedom where there are very few restrictions that may be imposed on the work as well as the derivative work. Similarly there may be other licenses that grant the basic freedoms but then allow the licensor to impose restrictions on specialized rights such as commercial usage, creation of derivative works. Of course these divisions are never absolute, even within a class or family of licenses. Thus within the Creative Commons licenses for instance you may have a completely open license that allows for all rights, while you could also have license that allows certain rights, but imposes many restrictions as well.

c. On the validity of the license

One of the questions that has plagued the GNU GPL is the question of its validity. While this question is still to be answered in a court of law, it has become an important consideration that people bear in mind while drafting an open content license. An interesting development that we see in the world of open content licenses is that if one were to classify them chronologically as first generation (i.e. free art, open content, Open Audio) and second generation licenses (Creative Commons), within the shorter year spans of internet time, a significant shift in the style of second generation licenses can be seen.

   Knowledge and creativity are resources which, to
   be true to themselves, must remain free, i.e.
   remain a fundamental search which is not directly
   related to a concrete application. Creating means
   discovering the unknown, means inventing a reality
   without any heed to realism. Thus, the object(ive)
   of art is not equivalent to the finished and
   defined art object. This is the basic aim of this
   Free Art License: to promote and protect artistic
   practice freed from the rules of the market economy.

Free Art License, Preamble version 1.2

In many ways the first generation license were marked by a certain performative, polemical stance. What do I mean by this? When you read some of the earlier open content licenses they normally open with a crisp polemical statement, which acts both as the preamble to the license, as well as an ideological statement against copyright. They do not have the same impersonal feel that most documents written in legal language convey. In other words the license was like a speech act, where it was both the site of, as well as the reason for, a transformation in the way that we conceive production and distribution of knowledge. Most of the first generation licenses are however also probably less effective as legal documents than the second-generation licenses. But that is also what makes them interesting; they retain a certain edginess as licenses that seems to be absent in the more legally efficient second generation licenses.

   The licenses for most software are designed to
   take away your freedom to share and change it. By
   contrast, the GNU General Public License is
   intended to guarantee your freedom to share and
   change free software - to make sure the software
   is free for all its users.

    GNU General Public License, preamble version 2, June 1991

The second generation licenses have been rendered "professional". They look, sound and feel more like a legal document. And given the fact that the licenses are supposed to be the primary building blocks for shared creation, this is a very important factor as well, that the licenses should stand good in a court of law. It is as though the license has been cleansed of its performative value, and the ideological battle happens outside the narrative structure of the license.

   The work (as defined below) is provided under the
   terms of this creative commons public license
   ("ccpl" or "license"). The work is protected by
   copyright and/or other applicable law. Any use of
   the work other than as authorized under this
   license or copyright law is prohibited. By
   exercising any rights to the work provided here,
   you accept and agree to be bound by the terms of
   this license. the licensor grants you the rights
   contained here in consideration of your acceptance
   of such terms and conditions.

Creative Commons License, preamble version 2.0

The idea is not to make a trivial point about language or rhetorical statements in the license, the larger point is to look at these developments or movements towards a more formal mode in the second generation licenses as also mapping out the larger debate on copyright. For some of us the battle over copyright is not merely about the future of creativity, but ties into the larger future of capital as it seeks to create new ways to extend property, and this process of "cleaning up the licenses" also often means an inability to deal with practices which reside on the murkier parts of the legal arena. What we need to avoid is a situation where open content licenses almost result in a gentrification of the debate on copyright.

-- RoshoLinux - 23 May 2006