Chapter 3

General Characteristics of Open Content Licenses

Most open content licenses share a few common features that distinguish them from traditional copyright licenses. These can be understood in the following ways:

1. basis of the license / validity of the license.
2. rights granted.
3. derivative works.
4. commercial / non commercial usage.
5. procedural requirements imposed.
6. appropriate credits.
7. open content licenses do not affect fair use rights.
8. absence of warranty.
9. standard legal clauses.

a. Basis of the license / validity of the license

While being a form of license that allows end users freedom, it is important to remember that the open content licenses, like free software licenses, are based on the author of a work having valid copyright. It is on the basis of this copyright and the exclusive rights that it grants him/her that the author can structure a license that allows him to impose the kinds of rights and obligations involved in using the work. Every open content license therefore asserts the copyright of the author and states that without a license from the author, any user using the work would be violation of copyright. Put negatively, such licenses cannot be used to violate copyright. Thus the usage of the work is subject to all the terms and conditions imposed by the license. Using this right, the open content licenses can then impose restrictions that ensure that the work is not used to create a derivative work which has restrictive conditions imposed on it. Most open content licenses also assert that an acceptance of the terms and conditions of the license need not be explicit, and may arise from the conduct of a user. Thus, in the case of a song, the moment you download the song you are bound by the terms of the open content license. The user cannot at a later date claim that s/he did not agree to the terms of the license.

b. Rights Granted

The premise of an open content license is that unlike most copyright licenses which imposes stringent conditions on the usage of the work, the open content licenses enable users to have certain freedoms by granting them rights. Some of these rights are usually common to all open content licenses such as the right to copy the work and the right to distribute the work. Depending on the particular license, the user may also have the right to modify the work, create derivative works, perform the work, display the work and distribute the derivative works. When choosing a license, the first thing that you will have to decide is the extent to which you are willing to grant someone rights over your work. For instance you have created a font, and do not have a problem if people create versions of it, then you can choose a license that grants the user all rights, but on the other hand if you are willing to allow people to copy the font and distribute it but you do not want them to change the typeface or create versions of it, then you will choose a more restrictive license which only grants them the first two rights.

c. Derivative Works

Any work that is based on an original work created by you is a derivative work. The key difference between different kinds of open content licenses is the method that they adopt to deal with the question of derivative works. This issue is an inheritance from the licensing issues in the free software movement. The GNU GPL for instance makes it mandatory that any derivative work created from a work licensed under the GNU GPL must also be licensed under the GNU GPL. This is a means of ensuring that no one can take the benefit of a "free work" and then create a work, which can be licensed with restrictive terms and conditions. In other words, it ensures that a work that has been made available in the public domain cannot be taken outside of the public domain. On the other hand you may have a license like the BSD software license that may allow a person who creates a derivate work to license that derivative work under a proprietary or closed source license.

This ability to control a derivative work through a license is perhaps the most important aspect of the open content licenses. They ensure in a sense, a self perpetuity. Since a person cannot make a derivative work without your permission, your permission is granted on the condition that s/he also allows others to use the derivative work freely.

In open content licenses, the right to create a derivative work normally includes the right to create it in all media. Thus if I license a story under an open content license, I also grant the user the right to create an audio rendition of it.

The obligation to ensure that the derivative work is also licensed under the terms and conditions of the open content license are however not applicable in cases where the work is merely aggregated into a collection / anthology / compilation. For instance I have drawn and written comic called X, which is being included in a general anthology. In such a case the other comics in the anthology may be licensed under different terms, and the open content license is not applicable to them and will only be applicable to my comic X in the anthology. Commercial / Non Commercial Usage

Another important aspect of open content licenses is the question of commercial / non commercial usages. I may for instance license a piece of video that I have made but only as long as the person is using it for non-commerical purposes. On the other hand a very liberal license may grant the person all rights, including the right to commercially exploit the work. Procedural Requirements imposed

Most open content licenses require a very strict adherence to procedures that have to be followed by the end user if s/he wants to distribute the work, and this holds true even of derivative works. The licenses normally demand that a copy of the license accompanies the work, or the inclusion of some sign or symbol which indicates the nature of the license that the work is being distributed under, and information about where this license may be obtained. This procedure is critical to ensure tha all the rights granted and all the obligations imposed under the license are also passed on to third parties who acquire the work. Appropriate Credits

The next procedural requirement that has to be strictly followed is that there should be appropriate credits given to the author of the work. This procedure applies in two scenarios, the first is when the end user distributes the work to a third party, then s/he should ensure that the original author is duly acknowledged and credited. It also applies when the end user wants to modify the work or create a derivative work. Then the derivative work should clearly mention the author of the original and also mention where the original can be found.

The importance of this clause arises from the fact that while open content licenses seek to create an alternative ethos of sharing and collaboration, it also understands the importance of crediting the author. Very often in the absence of monetary incentive, other motivating factors such as recognition, reputation and honour become very important. Open content licenses, far from ignoring the rights of the author, insist on strict procedures so that these authorial rights are respected:

 You may copy and distribute the Document in any medium,
 either commercially or non-commercially, provided that this
 License, the copyright notices, and the license notice
 saying this License   applies to the Document are reproduced
 in all copies, and that you add no other conditions
 whatsoever to those of this License. You may not use
 technical measures to obstruct or control the reading or
 further copying of the copies you make or distribute.

GNU Free Documentation License, version 1.2, November 2002

 You may copy and distribute copies of the Music as you
 receive it, in any medium, provided that you:

   a. conspicuously and appropriately publish on each copy
      an appropriate copyright notice;
   b. keep intact all the notices that refer to this
      License;
   c. supply, with each copy of the Music, all significant
      information about the Music, including the title of
      the work, the name of the artist, and the names and
      roles of all credited personnel;
   d. supply, to each recipient of the Music, along with
      the Music, either a copy of this License or a
      clearly visible URL that lets the recipient know
      where to find a copy of this License on the Internet.

 If the information required by (a) to (d) above is not
 available, for example when the Music has been received by
 making a recording of a performance, then this information
 must be obtained independently and no copies can be made or
 distributed without this information being included with
 each copy of the Music.

Ethymonics Free Music License, version 1, August 2000

g. Open Content Licenses do not affect fair use rights

Under copyright law, there is an exception to infringement and this is known as the fair use exception. Fair use exceptions generally include using portions for critique or review, and certain non-commercial or educational academic uses etc. Open content licenses make it clear that the terms and conditions of the license do not affect your fair use rights. Thus even if someone is in disagreement with the terms and conditions, and refuses to enter into the open content license, s/he may still have the freedom to use the work to the extent that is allowed by the principles of his/her fair use rights.

    The OpenMusic works may be reproduced and distributed in
    whole or in part, in any medium physical or electronic,
    provided that the terms of this license are adhered to, and
    that this license or an incorporation of it by reference
    (with any options elected by the author(s) and/or publisher)
    is displayed in the reproduction.

    LinuxTag Green OpenMusic License, draft v1.1, 22 April 2001

h. Absence of warranty

Since more often than not the work is being made available at no financial cost and also gives the user certain freedoms, most open content licenses have a standard clause which states that the work is being provided without any warranty or on a "as is basis". The licensor cannot be in a position to provide any warranty on the work. A few licenses however provide the end user the option of providing a warranty of services, or a warranty on the derivative work so long as that warranty is one between the licensee and the third party.

    Because the opencontent (oc) is licensed free of charge,
    there is no warranty for the oc, to the extent permitted by
    applicable law. Except when otherwise stated in writing the
    copyright holders and/or other parties provide the oc "as
    is" without warranty of any kind, either expressed or
    implied, including, but not limited to, the implied
    warranties of merchantability and fitness for a particular
    purpose. The entire risk of use of the oc is with you.
    Should the oc prove faulty, inaccurate, or otherwise
    unacceptable you assume the cost of all necessary repair or
    correction.

    OpenContent License (OPL), version 1.0, July 14, 1998

    The work is provided "as is," and comes with absolutely no
    warranty, express or implied, to the extent permitted by
    applicable law, including but not limited to the implied
    warranties of merchantability or fitness for a particular
    purpose.

    Design Science License, 1999-2001

i. Standard legal clauses

A few other clauses that appear at the end of most open content licenses are the standard legal clauses that are included in most legal agreements, and you don't have to worry too much about them while choosing a license. These generally include:

• Severability: This means that even if one portion of the license is held to be invalid the other portions will still continue to have effect.
• Limitation on liability: The licenses normally state that the licensor will not be liable for anything arising from the use of the work. Thus, for instance, an end user cannot claim that he suffered mental trauma as a result of the work.
• The licenses do not allow you to modify any portion of the license while redistributing works etc.
• Termination: Most licenses state that the rights granted to the licensee are automatically terminated the moment s/he violates any obligation under the license.

-- RoshoLinux - 23 May 2006