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2. The basics of Open Content licencing

تمهيد 2.1

The Open Content principle is based on the ideas of the Free and Open Source Software (FOSS) movement. The Open Source approach was established in the software market in the 1990s, mainly resulting from the great success of GNU-Linux and its licence, the GNU General Public License (GPL). Written in 1989, the GPL was the first free software licence, which allowed users to use, study, share and modify the software. Today, entire markets are based on the development, maintenance, customisation and marketing of Open Source Software. The inventors of the Open Content principle adopted the basic ideas of FOSS and applied them to other forms of creative contributions, such as music, films or images.

The main protagonist of the Open Content movement was Lawrence Lessig, a legal scholar of Harvard Law School in Cambridge, USA. In 2001, he joined forces with Hal Abelson and Eric Eldred and founded the Creative Commons (CC) initiative to promote the digital commons. CC’s aim was to encourage and enable creators to open their works for general use without having to rely on costly and complex legal advice or having to donate their rights to the public domain. For this purpose, CC designed and published a variety of different licences which are easy to handle by the licensers and easy to observe by the users. In addition, the initiative offers useful information and a number of tools on its website, which can be used by anybody free of charge.

The underlying philosophy aside, Open Content is a licencing model that is based on copyright law. Copyright-protected works are made available to the public for the by and large free and unhindered use. Being a licencing scheme, however, the Creative Commons licences are not based on or lead to the public domain.[1] On the contrary, they depend on effective copyright protection. Without copyright, the licence could not be effective, especially not when it comes to the enforcement of the licence obligations.[2]

Licencing means to grant a third party (anyone else except the right holder) the right to use a copyright-protected work. The licence is, however, granted only under certain conditions and obligations on the user's side. Open Content licences may, for example, oblige the licensee to credit the author with every use. This relation between right and obligation could be expressed as: “You are allowed to republish this work under the condition that you name the author.”

Open Content licences are generally suitable for every kind of creative work. The CC licences are generic licences which can be used for music, films, texts, images and any other aesthetic creation. However, they are not designated to licence software. As technical products, computer programmes require different licence conditions. In fact, there are specific licences available for software, such as the abovementioned Open Source licences. Also, there are special licences for other technical creations such as databases.[3]

Open Content is sometimes referred to as an anti-copyright approach. This is, however, not true. It is a model for right holders to manage their copyright in a specific way. Open Content does not oppose copyright per se, but allows a licenser to take a different approach to the traditional “all rights reserved” approach. Open Content licences are tools which can be employed in order to serve both: the individual interest of the author and the public interest. It is, however, for each copyright owner to decide whether Open Content licences suit their personal needs.

2.2 Different Open Content licence models

Unlike Free and Open Source Software,[4] the term “Open Content” is not precisely defined, i.e. there is no commonly agreed definition.[5] This allows for a great variety of diverging licences. In this publication, Open Content licences (also known as “public licences”) are assumed to be standard licences that allow the licensee at least to distribute, make publicly available and reproduce a work for non-commercial purposes in any way and on any media free of charge.[6] Needless to say, more permissive Open Content licences that allow, for example, to make and publish derivative works or to encourage commercial uses are also covered by this definition.

Major differences between the various licences ensue when it comes to the question of using the work creatively, i.e. making modifications and distributing the modified versions or using the work for commercial purposes. Whereas some licences allow for the modification, translation, updating, remixing or customising of a work, others do not. Among those that allow modifications, some follow the “copyleft principle,” also known as ShareAlike (SA). Such clauses oblige the author of a modified version of an Open Content work to make it available under the same licence as the original author. If somebody modifies the work and publishes the new version, they have to grant their users the very same freedoms that applied to the original work. The idea behind this principle is simple: An Open Content work shall remain open in all its manifestations and versions. Without the ShareAlike obligation, modified versions of the work could be published and distributed under proprietary licence schemes. This, in turn, could oppose the intentions of the original creator.[7]

2.3 The benefits of Open Content licencing

Using an Open Content licence has several benefits. Besides the possibility of a much broader distribution of a work, it also increases legal certainty for users and significantly decreases legal transaction costs.

a) Broad distribution

The main objective of Open Content licencing is to allow for a broad distribution. Distribution is encouraged by granting more or less unlimited distribution rights and rights which entitle the licensee to share the content. This is an essential precondition for legitimate sharing, as copyright law, at least in Europe, does not provide for a right to publicly share protected content without the right holder’s explicit consent. This applies equally to both online and offline sharing. Open Content licences allow the users to upload the work on websites, blogs or any other web publication. They also allow the production of hardcopies of the work in any form, such as photocopies, CDs or books, and the distribution of these copies to anybody without any restriction.

The positive effect on the work’s potential publicity should not be underestimated. Without an Open Content licence, the sharing of a work, for instance, via another online source would require an individual contractual agreement between the sharer and the right holder. The same would apply when somebody would like to modify, remix or mash up a work with other works and to publish the modified version: Under copyright law all these uses are subject to the individual consent of the right holder. The licence grant of an Open Content licence, by contrast, is established automatically.

By facilitating the required legal transactions, Open Content licences not only serve the interests of the authors, but also those of the general public. In fact, authors and users benefit from the increasing number of interesting creative contents that can be accessed and used for many different purposes without having to pay remuneration. In other words, they benefit from the ever-growing “cultural commons” that is available for reception and/or creative use without complex individual contractual proceedings.

The public interest factor might or might not create incentives for authors to open their works. It may, however, be said that Open Content is especially relevant for public authorities which own copyrights in creative contents, as they produce and publish works for the public interest and not for commercial purposes. As the costs for the creation and publication of said works are mostly borne by the taxpayers, Open Content publication strategies are particularly recommended for public authorities.

Also, from the perspective of private right holders, the Open Content approach is not necessarily first and foremost an altruistic one. Otherwise it would not be so successful. Open Content enables sharing, thereby decentralizing and disseminating the sources. This is often more beneficial for the author than a restrictive distribution concept, such as “all rights reserved”. If the content is interesting enough to encourage other people to share it, it will be listed more prominently in the search engines, thus, gaining even more publicity.

This, in turn, may have a positive impact on the author’s popularity and the demand for their works. However, it also brings about potential economic benefits: Attention is a scarce resource in the attention economy[8] which is so dominant in the digital age. In fact, attention is an essential economic factor: Attention leads to clicks; clicks lead to advertising revenues and/or increased recognition; increased recognition leads to higher demand and higher payment rates or salaries. Especially on the Internet, more freedoms for the users and less control will often lead to higher revenues than “all rights reserved” paradigms.

In order to understand the whole effect of this concept, it is essential not to confuse the term “open” with “cost-free” or “non-commercial”. Free as in Free Software as well as open in Open Source or Open Content, is not equivalent to “cost-free” but to “free-to-use”. Public licencing strives to provide users with the necessary rights to use copyright-protected content in the way they want to. Subject to the conditions contained in the public licences, they are free to use the content, i.e. to copy, distribute and make it publicly available. In addition, there is no requirement to pay licencing fees. This additional paradigm: freedom of royalties (i.e. licencing fees) is supposed to support the freedom to use. Without it, many people would be excluded from the use, because they could not afford to pay the royalties.

However, this paradigm does not necessarily mean that Open Content must be available free of charge or can only be exploited non-commercially; nor does it mean that a creator or a publisher cannot make money by making it available to the public. If this was the case, the Open Source industry could not exist.[9]

Open Content licences enhance legal transparency and certainty for both users and right holders alike. Copyright is a complex matter: A legal layperson can barely figure out under what circumstances a work can be legally copied for private use, made available for educational purposes or quoted. By contrast, Open Content licences, e.g. CC licences, offer an explanation in plain language to inform the licensee what they can do, which obligations they have to comply with and what they should refrain from doing. These explanations are also beneficial for the licenser, who is generally not a legal expert (especially not if it is the author themselves) and who in this way gets all necessary information regarding the rules for using the material.

A further important benefit of Open Content licences is the simplification of the legal transaction between the owner and the user. Open Content licences are standardised tools which keep such transactions simple for both sides. Drafting and negotiating individual licence contracts is a complex matter which usually requires the involvement of lawyers. Donating copyright-protected works to the commons in an international environment (the Internet) is even more complex. Open Content licences free the creator and other right holders from these complexities. Notably, the licence texts published by large initiatives such as CC are thoroughly drafted by legal experts and then made available free of charge for the use of interested parties.

c) Deliberately giving up control

Open Content licencing requires the will to deliberately give up control over the use of one's work. Having no, or only very limited control, is not necessarily a bad thing, but a feature of public licencing. In fact, the notion of being in total control of the use of content is deceptive in most cases, especially concerning internet publications, irrespective of whether one applies an “all rights reserved” or a “some rights reserved” approach. Once an article, image or poem is made available online, the control over the use usually vanishes. In other words, the more popular the content becomes, the more difficult it becomes to control it effectively. It will be shared on the Internet, whether it is legal or not, unless drastic measures are taken - such as rigid Technical Protection Measures (TPM)/Digital Rights Management (DRM) or an extensive strategy for rights enforcement which requires the engagement of lawyers, piracy agencies or other invasive methods.

The crucial decision about having or not having control is therefore inherently a question of going or not going online. Once a small scale creator decides to upload their work on a publicly accessible website (for large enterprises this might be different), it is a logical next step to publish it under a public licence. It cannot be denied that there will probably be people who break the rules and will neither comply with copyright law nor the Open Content licence. However, for the many considerate users who are overwhelmed by the complexity of copyright law, the licence not only provides freedom but also guidance.

Most people are willing to comply with the law, but without understandable information about the rules, they are doomed to fail. Is it allowed to download online content, to share it, to print it, to embed it? With regards to copyright law, most users will not be able to answer these questions. The Open Content licence, on the other hand, instructs the user about such problems by keeping the answers short and simple. It might, for instance, state: “You can use the content in any way you want, provided that you comply with the licence obligations.” In other words, the licence obligations are made clear in a way the user can understand and comply with. The resulting legal certainty not only benefits the right holders but also the users.

The following section describes in detail how an Open Content licence functions in general and what some of its practical implications are. These aspects are usually relevant for all types of Open Content licences. For more information on specific licence types, please refer to chapters 3 and 4.

a) Comprehensive scope of the licence grant

As already mentioned, Open Content is based on the “some rights reserved” paradigm. Whereas most of the rights to use a work are licenced and thus permitted, some are reserved.

Open Content licences thus offer any interested user the opportunity to obtain broad rights to use the content in any way, for any purpose, on any medium, everywhere and without geographical or temporal restrictions. Nonetheless, there may be restrictions (depending on what kind of licence is applicable) on commercial uses or modifications and transformations.This means, for example that a novel published under a public licence can be copied at will, in digital or non-digital form. It can be scanned or otherwise digitalised, uploaded on servers, saved on hard-drives or downloaded. In terms of copyright, all these uses are referred to as “reproductions.” The work might also be printed and (re-)distributed, e.g. as a book, eBook or made publicly available on the Internet. Music may be performed publicly; poems may be recited and plays enacted.

Open Content licences are intended to facilitate the use of protected works, no matter where their use takes place geographically. This has been taken into consideration in the drafting of the licences: Due to their non-discriminatory nature, they are intended to be applicable on a worldwide[10] basis.

Also, the rights are granted without remuneration or any other form of consideration. That does, however, not necessarily mean that the acquisition of a copy or the access to the work is free of charge (see chapter 2.4, section c below), although this is usually the case.

Reserved rights come into play when a work is licenced under a public licence which does not cover, for instance, the right to modify a work and to distribute these modifications. Anyone wishing to engage in these “reserved rights,” needs to enter into an individual licencing contract with the right holder. Authors, for example, may decide to use a non-commercial licence to be able to decide about commercial uses on a case-by-case basis and to claim royalties when somebody wants to realize a profit using their works. Should a licenser decide to choose a restrictive licence (e.g. a non-commercial licence), this does not necessarily mean that they are opposed to uses that are outside the scope of the public licence grant. Such uses are not prohibited per se, but are subject to an additional agreement with the right holder.

b) Applicability to all copies of a work

A public licence always applies to one particular work and not to a certain copy of that work. A work is an intangible creation which expresses the author’s individuality. Photos, texts, music compositions or graphic designs are works. A music or image file, a book or a journal are only tangible embodiments of the work but not the work itself.

For the licencing decision, it is important to know that the licence applies to the work and not to a particular copy of that work. If one was not aware of the difference between a work and a copy, wrong assumptions about the effect of licencing might be made.

It is, for instance, a widespread practice to freely share image files of low-resolution or low-quality music files under an Open Content licence with the intention and belief that the rights in high-resolution versions of the same image or music production are not covered by the licence and can still be exploited commercially. This strategy is based on the wrong assumption that the licence only applies to the low-resolution copy of the work. However, it is not the respective copy of the work which is licenced, but the work itself. The licence applies to all kinds of copies of the image, irrespective of their quality. Low-resolution and high-resolution versions of a photo do not constitute different works but only different formats of the same work.

In other words: If low-quality copies are shared under an Open Content licence, the licence also applies to high-quality copies of the same work. Hence, it might be possible to restrict the access to high-resolution copies by paywalls or other technical protection measures. However, once a user gets hold of a high-resolution copy, they can share it under the terms of the CC licence under which the low-resolution copy was published.[11]

c) No royalties

All Open Content licences follow the paradigm of “no royalties.” No royalties means that the rights to use the work are granted free of charge. It does not, however, affect any other possible sources of income. An example: The content of a book, i.e. the articles, images, illustrations etc., can be Open Content although the book itself is sold. In this case, the buyer only pays the price for the physical hardcopy, in other words, the price for the acquisition of the physical good, i.e. the paper, the cover and so on. The Open Content licence applies to the content of the book, i.e. to the use of the copyright-protected works. It grants a user the rights to copy, distribute and make the work available without having to pay any royalties or licencing fees.

Take another example from the online world: The access to an Open Content online repository can be subject to fees, whereas the provided articles are published under a public licence. In this case, the subscription fee is charged for the service, not for the rights to use the content. The subscription is therefore no royalty; demanding it does not conflict with the “no royalties”-paradigm.

Against this background, commercial business models can easily be reconciled with the Open Content idea. Anybody who wants to combine an Open Content publication strategy with a commercial business model is free to do so. Whether this is actually feasible has to be assessed on a case-by-case basis paying due regard to the particularities of the respective case.

d) Conclusion of the licence contract

A licence is a permission to use a copyright-protected work in a way that would otherwise constitute an infringement. Whether a licence is a contract or a simple, one-way promise varies from jurisdiction to jurisdiction. The effect, however, is the same: The licence is a valid legal agreement that governs the use of a particular work. Uses which are not covered by the licence or do not comply with the licence obligations are illegitimate acts that can have legal consequences.

To conclude a public licence is simple. In a first step the licenser notifies the potential users that their work can be used under the terms of a specific licence. This is done by attaching a licence notice to the work, including a link to the licence text.[12] From a legal perspective, this act is regarded as an offer to the public (i.e. to any interested party) to use the work according to the licence conditions. Once a user uses the work in a way which triggers the licence,[13] the licence agreement is concluded and the licensee has the necessary permission to legitimately use the work (but also the duty to observe the obligations contained in the licence).

e) Preconditions for using Open Content licences

In order to be able to licence a work as Open Content, the licenser needs to own all the necessary rights to do so. A public licence grants non-exclusive rights to use a work to any interested party. For this, the licenser needs to have exclusive ownership of all the rights that are covered by the public licence. The owner of mere non-exclusive rights is, depending on the jurisdiction, usually not able to grant rights to third parties. If the licenser is not, or not sufficiently, entitled to grant these rights, the licence grant is – on the whole or in parts – null and void. As a result, the licenser commits a copyright infringement for the assumption of rights she does not actually own. Even worse, all users are also guilty of copyright infringement, because the licence grant was invalid.

The legal reason for the latter is that only the owners of rights can (sub-)licence rights to others. A licence grant without entitlement on the licenser’s side is void. For example, a publisher owns the exclusive print and distribution rights of a novel, but does not have the rights to make the content available online. In this case, the publisher cannot be an Open Content licenser for the work, as the Open Content licence would also cover rights to make the content available online. By applying the Open Content licence, the publisher would violate the (in the case of doubt: author’s) right to make the work available by wireless means. The same applies to any Open Content licensee who would make the novel available online. As the licenser does not have the right thereto, the user cannot obtain it from them either. Whether the licenser and/or the user actually knew or could have known about the lack of entitlement is irrelevant.

How does the licenser obtain the entitlement to act as a licenser? The initial owner of copyright is always the creator.[14] If the creator acts as the licenser themselves, no further steps are needed. However, if a third party shall act as a licenser, one or more contractual transfers of rights are required. When the rights are transferred repeatedly, it is important to establish a consistent licence chain to properly entitle the licenser. In other words, if a work is licenced several times from one party to another before it is published under a public licence, all licence deals concluded in between have to cover all necessary rights and need to be effective.[15]

f) Centralised vs. Decentralised licencing schemes

There are many different Open Content publication strategies. Designing a sustainable and effective strategy can, however, be tricky. Some of the options require transferring rights prior to the actual publication under the public licence, others do not. What model is feasible depends on the individual situation. Two major approaches shall be exemplified here using the online encyclopedia Wikipedia:

Wikipedia is a massive multi-author collaboration project. Anyone who wishes to contribute is invited to do so. The authors can upload their articles and modifications of existing articles themselves. All contributions are published under the same CC licence (CC BY-SA).[16] There are two major approaches to licencing in such a project: Either every author acts as licenser for their own contributions or all rights are consolidated in a central body, for instance, in the Wikimedia Foundation which then acts as licenser for all published content. The first alternative could be called a decentralised, the latter a centralised licencing scheme.

The decentralised licencing scheme

The founders of Wikipedia opted for a decentralised licencing scheme. The authors who contribute copyright-protected articles or edit existing articles in the encyclopedia keep their exclusive rights and licence them to the users. No rights are transferred to the Wikimedia Foundation, which, in turn, does not and cannot act as the licenser for the articles. In this scenario, the foundation acts, from a copyright perspective, as a platform provider and hosting service rather than as a publisher.[17] This model can be adopted for other publications as well, e.g. anthologies, Open Access repositories, image and video platforms. The principle is simple: Unlike traditional publication and licencing models, the publisher (if that term is appropriate for platform providers altogether) is neither the central rights owner nor the licenser for the published content. The authors keep their exclusive rights and licence them by using the Open Content licence to anyone on a non-exclusive basis, including the publisher/platform provider themselves. In many cases, the Open Content licence grant will suffice to legitimise the provider’s own use.[18]

However, in certain situations, the public licence grant might not be broad enough to entitle the publisher sufficiently. Take, for example, a publisher who would like to print and sell an anthology with articles written by a number of authors. The articles are to be published under a public licence, allowing the authors to keep their exclusive rights. In this scenario, the publisher merely acts as a vendor of the book rather than as a licenser of the articles. To prevent commercial competition by other publishers, the publishing house might decide to publish the articles under a CC NonCommercial (NC) licence. The authors might, for example, licence their contributions under a CC BY-NC licence.

Under this arrangement, the CC licence does not cover the own use of the publisher because selling a book counts as a commercial use. The publisher has to conclude an additional agreement with the authors which entitles the publisher to commercially exploit the articles. This additional agreement could be a written contract or a one-way “container licence.” The right to commercially exploit the work could be granted on a general basis or in relation to a particular book publication.

The centralised licencing scheme

Alternatively, all rights could be transferred to the publisher who would then act as the licenser for the work under the Open Content licence. This option would require the conclusion of individual licence contracts between the authors and the publisher prior to the publication.

To give an example: Assume Wikipedia followed the centralised licencing approach. All rights would have to be transferred to the Wikimedia Foundation (or to a different legal body) which would then act as the licenser of the CC licences which were granted to the foundation by the individual authors for the Wikipedia-articles. To accomplish the transfer of rights from the authors to the publisher, “contributor agreements” would have to be concluded with every author. These are also known as “inbound licences”.[19]

The scope of the inbound licence must comply with the outbound licence in order to establish a correct licencing chain.[20] In this context, it is inevitable for the authors to grant exclusive rights or even assign their rights completely to the publisher,[21] since non-exclusive licences usually – although depending on the relevant national jurisdiction – do not allow for the re-licencing or the transferring of rights to third parties. In addition, the licence grant has to be unrestricted in terms of territory and duration. Since the Open Content licences grant the users worldwide and perpetual rights to use the work, the licenser's rights must be equal in scope.

Also, whether and to what extent the scope of the licenced rights should be restricted in the inbound licence depends on the outbound licence, i.e. the Open Content licence. For example, if a NonCommercial (NC) licence is used, the inbound licence (contributor agreement) could be restricted to non-commercial uses as well. Or if the project decided for a licence with a NoDerivatives (ND) attribution as outbound licence, there would be no need for the authors to transfer modification rights to the publisher. Whether such restrictions are to be recommended, depends on the actual case. It could be reasonable to leave the individual decision about e.g. commercial uses with the author. In other cases, practical or financial aspects might suggest that all licencing decisions should be taken by a central body.

Furthermore, the inbound licence should explicitly mention that it will allow the publication of the covered works under a public licence. This is all the more important, as in some jurisdictions it is mandatory to obtain the explicit permission from the author in order to be able to sub-licence and/or to transfer rights to third parties. Although this might not be the case in every European jurisdiction, the author still needs to be aware that the work will be published as Open Content. The use of a work published as Open Content can be far more extensive than in a controlled licencing scenario. Especially when the outbound licence permits modifications, e.g. moral rights of the author could be affected.

Which alternative, the centralised or the decentralised licencing scheme, is preferable depends on the particular situation. At first glance, it might be argued that the decentralised approach is less complex to organise. It does, for instance, not require complex licencing management between the publisher and the authors. In addition, it would prevent liability issues for the publisher. If the publisher acted as licenser, they could be made liable for the provided content. If the individual authors acted as licensers, questions of liability would usually only affect them. In Wikipedia, for instance, the author is the only person who knows the content and the history of the contribution. It would thus be fair to decide that they alone should be responsible for it.[22]

Especially in massive multi-author collaboration projects such as Wikipedia, a centralised licencing approach or rights management would be very complex. But this could equally be said for smaller ventures. Take for example a research institute which would like to publish an anthology under a CC licence containing articles from 20 different authors. Not long into the negotiations, it turns out that the authors cannot agree upon a uniform licencing model. Whereas some do not agree with public licencing at all, others wish to submit articles that have been published in a journal before. The latter cannot be licenced as Open Content, because the authors have already transferred their exclusive rights to the previous publisher and reserved only non-exclusive rights to republish them. Among those who agree with an Open Content publication, some are in favour of a permissive licence, e.g CC BY, whereas others would like to reserve the right to commercially use their work and therefore favour a CC BY-NC approach.

In a decentralised model, every author could decide individually about the outbound licencing of their contribution.[23] Those in favour of an Open Content licence could publish their article under any public licence. The others might reserve all rights. The centralised model, by contrast, would require the institution to negotiate an individual licencing agreement with every single author. Such an effort would take time and money.

On the other hand, there could be a variety of reasons for having a single, central licenser. It could, for example, be advantageous for commercial publishers to hold all entitlements. Especially in massive multi-author collaboration projects, basic decisions about the licencing scheme would be much easier to realise than in a decentralised model, where every right holder would have to be asked for permission in order to be able to, e.g. change the project’s licence. Generally speaking, if crucial decisions about licencing, marketing strategies or business models depended on the approval of a number of individuals, problems would most certainly arise, as such decision-making structures are highly unpredictable and almost impossible to control.

The bottom line is that decisions about publication models and licencing schemes need to be well-considered. Every concept has advantages and disadvantages which need to be balanced against each other. This is all the more important as such decisions cannot be easily revoked and will most probably be crucial for the success of the project.

g) Pitfalls of republications

The licenser must ensure that their Open Content licence does not violate third parties’ rights. In particular, republications of works that have already been published commercially may raise problems. Publications in a journal or newspaper, for example, often require the transferral of exclusive rights to the work to the publisher. In such a situation, no second publication under an Open Content licence is possible, except with the consent of the publisher. Otherwise, the creator would violate the exclusive rights of the publisher, notwithstanding their own authorship (the issue of so called self-plagiarism, if it applies, is separate to that of copyright). For that reason it should be made very clear in organised Open Content projects that the authors need to have the right to republish their contribution under a public licence and that no third parties' rights are infringed. These rights can be derived either from the legal ownership (author’s right, copyright, exclusive usage rights) of the contributor themselves or again from an Open Content licence. Content can for example be uploaded onto Wikipedia by anyone who is not the author or rights owner, if it has already been licenced under an Open Content licence compatible or identical with the licence used in Wikipedia.[24]

h) Practical effects of using an Open Content licence

As already mentioned, Open Content licencing combined with the decision to publish online will most probably lead to a certain loss of control. Anybody who would like to copy, distribute, republish or otherwise use the work is entitled to do so (except maybe commercial users). This enables the “free flow” of the work. Also, since the usage rights are granted royalty-free, the options to derive direct profits are limited after the content has been published. On top of that, the licencing decision is – at least for the particular version of the work – irrevocable. The licences to use are granted permanently and cannot be terminated by the author or right holder. Should the right holder decide to change the licencing model after the initial publication, any licencing agreements concluded prior to that change will remain valid. In other words, people who concluded the licence beforehand can still use the work according to the initial licencing terms, i.e. use and distribute it, as the licence for a work which has been spread cannot be changed in retrospect. All these factors indicate that the initial decision about the publication model or licencing scheme is very important. Although the right holder is, in theory, free to revise any licencing decision at any time, alterations of the licencing strategy can only be made in connection with major updates of the work. Hence, decisions for Open Content publishing in general and the selection of a specific licence in particular, must be taken diligently.

i) Enforcement of Open Content licences

Open Content is not free of rights and is not equivalent to the public domain. If somebody uses the work in a way which is not permitted by the licence terms, the rights owner can take legal action according to copyright and/or contract law.[25]

In addition, the CC licences contain a legal construction which ensures effective enforceability: This is the automatic termination clause.[26] According to that rule, any licence violation terminates the licence automatically. Without a valid licence, any further use constitutes a copyright infringement which can give rise to claims for damages, injunctions and other legal remedies.

Take, for example, a blogger, who posts a photo which has been licenced under a CC licence without providing the copyright and licence notices: This usage violates the licence requirements and may thus be subject to contractual remedies as well as copyright claims (as the licence is terminated automatically).[27]

j) The problem of licence incompatibility

One of the main benefits of Open Content is supposedly that it can be combined with, or integrated into, other publications in order to be republished in a new context. Licence incompatibilities, however, threaten this objective of public licencing.

The term “licence incompatibility” indicates that two or more works cannot be published as a combined work due to contradictory licence obligations. Licence incompatibilities are an undesirable side effect of inter alia ShareAlike licences (“copyleft”). These licences feature a clause according to which – to put it simply – modified versions of the work can only be shared under the licence of the original.[28] Apart from direct interventions into the work (e.g. shortening or translating an article) the term “adaptation” or “modification” can also apply to combinations of works, especially remixes or mashups.[29]

Imagine a photo artist who would like to publish a photo collage combining one image which has been licenced under a CC BY-SA with another one which has been licenced under a different ShareAlike licence (e.g. the GNU FDL). In this case, both licences would have the same requirement, stating: “You can only share a combination or modification under my licence terms.” Unless the terms of both licences are identical or at least equivalent in their content – which is very unlikely – the licences are incompatible and the content cannot be combined. Obeying one licence would inevitably result in infringing the other. The same effect might occur, depending on the particular situation and the interpretation of the respective licences, if somebody would like to combine articles or graphics licenced under different licences.

Licence incompatibilities contradict the objective of establishing and increasing a “cultural commons” of protected works which can be rearranged, remixed and (re-)combined to create new cultural content. Since there is currently no tangible solution for the incompatibility problem,[30] its potential effects should be considered carefully when choosing a licence.[31]

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  1. However, the CC initiative also provides instruments which mark content that has fallen into or should be considered as part of the public domain. These tools have to be distinguished from the licences. Waiving copyrights or marking particular content as “not protected,” i.e. public domain, means giving up the exclusive rights, whereas licencing means to grant a right to use the work under certain conditions.
  2. The legal explanation for this aspect is complex and differs from jurisdiction to jurisdiction. To put it simple, exclusive IPRs, such as copyright, are effective against anybody (rights in rem), whereas a licence or a contract only binds the concluding parties. The practical differ-ences are significant: Imagine, for instance, somebody copied a work for commercial purposes, which was licenced for non-commercial uses only. The violation of the licence could be enforced on the basis of copyright or contract law. Contract law would require the infringer to have to conclude a licence, i.e. they would have to be a party to the legal agreement. By contrast, under copyright law anyone infringing the exclusive rights of the right holder could be held accountable irrespective of whether there was a contractual relation with the rights owner or not. This shows that legal remedies derived from copyright law are usually much more effective than contractual claims.
  3. E.g. the “Open Database Attribution” and “ShareAlike for Data/Databases-licence,” published by Open Knowledge, see: http://www.opendatacommons.org/licenses/odbl/.
  4. For Free and Open Source Software there are two definitions. See the definition of the Free Software Foundation (FSF): https://www.gnu.org/philosophy/free-sw.html and the Open Source Definition of the Open Source Initiative (OSI): http://www.opensource.org/docs/definition.php. Both definitions are by and large identical.
  5. There are a variety of diverging definitions for Open Content (see e.g. http://opendefinition.org/od/), Free Content or Free Cultural Works (see: http://freedomdefined.org/Definition). Unlike the Free and Open Source Software definitions which may be regarded as de facto standard, none of the Open Content definitions seem universally accepted though.
  6. It is worth mentioning that this definition is broader than other understandings of “open.” According to the Open Knowledge Definition (see: http://opendefinition.org/od/), for instance, content and data are only “open,” if they are subject to licence terms that require the licensee at least to name the rights owner and/or to share alike. The discussion about the notion of “open” is complex and multifaceted. Since this document is meant to explain the practical applicability of CC licences, it shall neither be outlined nor commented upon here.
  7. See more about the ShareAlike principle and its effects in chapter 3.5, section c.
  8. For further information on the term and concept, see: http://en.wikipedia.org/wiki/Attention_economy.
  9. For details in relation to the freedom of royalties see chapter 2.4 section c.
  10. See e.g. the licence grant in the section 2a of the legal code: “Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to …”
  11. See the CC FAQ to this aspect under the questions: “Can I apply a CC license to low-resolution copies of a licensed work and reserve more rights in high-resolution copies?” (https://wiki.creativecommons.org/Frequently_Asked_Questions#Can_I_apply_a_CC_license_to_low-resolution_copies_of_a_licensed_work_and_reserve_more_rights_in_high-resolution_copies.3F) and “How do I know if a low-resolution photo and a high-resolution photo are the same work?” (https://wiki.creativecommons.org/Frequently_Asked_Questions#How_do_I_know_if_a_low-resolution_photo_and_a_high-resolution_photo_are_the_same_work.3F).
  12. In a book or other non-digital publication a hyperlink could be printed. Alternatively, the licence text itself could be included as a whole. For more information in relation to the practical questions of including licence notices and similar aspects, see chapter 4.
  13. Certain uses are allowed by statutory provisions, i.e. limitations and exceptions. For them the user needs no licence and is insofar not bound by the terms of the licence. For example, in many countries private copying is permitted by law. Hence no licence is required for private copying. Accordingly, the public licence does not apply to such use. The effect is that the user does not have to meet the licence obligations, e.g. they do not have to credit the author, etc. For further details see chapter 3.4, section b.
  14. Under common law based copyright systems, there are exceptions from this basic principle. English copyright law, e.g. provides for a rule according to which the employer becomes the initial owner of the copyright in all works that are created by their employees in the course of their employment. The US copyright act has a similar rule, called work-for-hire.
  15. Unlike property rights in physical goods, IPRs can generally not be acquired bona fide, i.e. IPR can be transferred only if the transferor owns all the rights allowing them to do so thus being appropriately entitled. Whether the transferee is in good faith when acquiring the rights, since they confide in the transferor’s assurance, is irrelevant.
  16. In relation to this licence see chapter 3.1, section b.
  17. Apart from the licencing aspect, the Wikimedia Foundation is of course much more to Wikipedia than a mere platform provider. It is e.g. responsible for the governance structures and many other essential elements.
  18. This might not be relevant for mere platform providers who will usually not be regarded as users in terms of copyright law and therefore do not need a licence. A platform provider in the proper sense does not use protected content in terms of copyright law but merely supplies the technical infrastructure to enable the platform’s users to make content available. However, for a publishing house that publishes books, it is inevitable to obtain a copyright licence to do so, since printing articles in a book and selling it is a distribution that falls into the scope of copyright law.
  19. An inbound licence refers to the contractual agreement between the authors and the publisher. An outbound licence is the licence between the publisher and the users, here the CC licence.
  20. That is because of the need for a proper licence chain. The licenser cannot grant rights which they do not own or are not allowed to dispose of themselves.
  21. From a legal perspective, there are several approaches to design contributor agreements. Some jurisdictions, especially the common law based copyright systems, allow for an assignment of the copyright. Whereas a licence is a permission to use the copyrighted work owned by another party, an assignment is a transfer of the copyright itself, one could say: a transfer of ownership. Some contributor agreements are based on the licence, other on the assignment approach. However the Continental European author’s rights-regimes (e.g. Germany, Austria) do generally not allow for an assignment of the author’s right. See for an overview: Maracke. 2013. Copyright Management for Open Collaborative Projects:
    Inbound Licencing Models for Open Innovation. SCRIPTed, vol. 10, issue 2, p. 140; http://script-ed.org/wp-content/uploads/2013/08/editorial.pdf.
  22. This aspect would become relevant when an article infringed the rights of a third party, e.g. copyrights. If the contributor themselves was the licenser, they would be responsible and liable. The platform provider might be obliged to remove the infringing article from the platform, but they would not be liable for damages. If the platform provider acted as a content provider, i.e. as licenser, they could also be held liable for damages.
  23. Unlike in a massive multi-author collaboration project, such as Wikipedia, diverging outbound licences should not be too problematic in such small publications. Hence, a uniform licence scheme would at least not be compelling.
  24. See the explanations at: https://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Can_I_add_something_to_Wikipedia_that_I_got_from_somewhere_else.3F.
  25. Concerning the differences between contract and copyright law remedies, see footnote 2. Regarding the international enforceability of public licences under different jurisdictions, see: Jaeger/Metzger. 2011. Open Source Software. 3rd edition. Recitals 371-379 (in German).
  26. See section 6a of the legal code: http://creativecommons.org/licenses/by/4.0/legalcode.
  27. The effect of this rule is that the moment the violation takes place, the licence becomes invalid. From that moment on, every use of the work is a copyright infringement. Indeed, according to the CCPL4 licence it is possible for the infringer to reinstate the licence (or to conclude a new one), when they remedy their non-compliance. However, uses that are conducted in the meantime, i.e. between the infringing act and the reinstatement are not remedied. See: “Licence term and termination” in chapter 3.4, section i.
  28. The SA feature is described in detail in chapter 3.5, section c.
  29. The CCPL4 licence defines adaptations as follows: “Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor.“ See section 1a of the legal code: http://creativecommons.org/licenses/by-nc-sa/4.0/legalcode.
  30. See to the efforts made to solve the problem and to the ShareAlike rule in general in chapter 3.5, section c.
  31. For the details of the implications see chapter 4.1.