Chair, AEShareNet Limited
Principal, Xamax Consultancy Pty Ltd, Canberra
Visiting Professor, Baker & McKenzie Cyberspace Law & Policy Centre, University of N.S.W.
Visiting Fellow, Department of Computer Science, Australian National University
This is a companion resource to papers on Open Source Licensing and Open Source and Open Content as Models for e-Business
Version of 2 July 2003
© Xamax Consultancy Pty Ltd, 2003
Available under an AEShareNet licence
This document is at http://www.anu.edu.au/people/Roger.Clarke/EC/CCLic.html
The originators of digital objects have a wide range of choices about whether and to what extent they exercise the rights that copyright law gives them. At the extremes, they can use the law to rigidly protect their object, or cede it into the public domain. The most constructive thing they can do, however, is to find an appropriate point on the open content spectrum. This paper provides guidance as to the key decisions a copyright-owner needs to make about how they want people to use their object.
Considerable confusion exists about copyright, especially now that the digital era has made it easier and more natural to breach it than to respect it. The purpose of this document is to provide guidance to the originators of content objects about the range of possible approaches to copyright that they can adopt.
This document refers throughout to an 'object'. This is meant to encompass the wide range of what lawyers refer to as 'works' that are the subject of copyright. The orientation throughout is primarily to digital objects. Examples include text documents like this one (expressed in, for example, HTML, Word or PDF formats), images (expressed in, for example, JPEG or PNG formats), diagrams, audio-files and video-files. They may be expressed on paper, on a screen, in celluloid, or on magnetic or optical disks. Objects may be inert, and intended simply to be read or observed by a human. Alternatively, they may include active components, typically programs, as so-called 'learning objects' are likely to do.
For brief tutorials on copyright, see section 2 of Clarke & Dempsey (1999) and Scott (2001).
At one extremity, an object may be claimed as Proprietary, and the owner of the copyright may refuse to give anyone a licence to do anything with it that is within the legal power of a copyright-owner to deny. The primary rights that a copyright-owner has in relation to an object are the rights to reproduce it, to publish it, and to adapt it. Music, book and film publishers, desperate about their loss of control over the works that they make available, are busily exploiting copyright law to the fullest extent possible, and lobbying governments for extensions to copyright law to protect their interests.
At the other extremity, an object may be ceded into the Public Domain. That means that no-one owns copyright in the object. But nothing prevents parties from re-expressing the object, and claiming copyright in the new expression. They don't even need to improve it. So if the originator of an object wants to ensure that an object is readily available to everyone, or to avoid its commercial exploitation by others, then ceding it into the public domain is not an effective means of achieving the aim.
In between the two extremes lies the concept of Open Content. This involves the claiming of copyright, and the granting of copyright licences that enable use by many parties, in many ways, and for many purposes, but that preclude some uses or some purposes. Although the possibilities have always existed, the idea of open content is relatively new. The following section examines its many flavours.
Most copyright-owners are enthusiastic about other parties using their work, but are concerned about some of the ways in which they might use it. Some owners want their work widely distributed, but also want to earn money from every copy that's made of it. Others want to make money from some kinds of use (e.g. by companies, for public relations, or in rich countries), but are happy to make it available gratis for other kinds of use (e.g. for education, for research, or in poor countries). Some charge differently, depending on who the user is, and whether the use is for-profit or not-for-profit. Others want to ensure that it isn't modified, or that it isn't used in conjunction with the promotion of, say, sex, or drugs. An open content licence can be devised to address all of these concerns, and more besides.
The first requirement is that ownership of the copyright in the object be established, and retained. In the U.S.A., this requires the assertion of ownership, e.g. by including a copyright notice or statement. See the top of this document for an example.
A further useful step is to impose conditions on all licensees such as the following:
Many detailed decisions need to be made when preparing an open copyright licence, and hence there are many possible types of open copyright licence. The following sub-sections identify important factors that differentiate open content licence-types.
The copyright-owner is likely to want to retain the ability to grant licences rather than just grant a licence to one party. In addition, the copyright-owner might allow a licensee to grant a licence to other parties; but it is more common to want to preclude the licensee from doing so. These intentions can be achieved by granting licences subject to terms such as the following:
For some kinds of copyright objects, it may be important to ensure that the object is only ever made available complete and unchanged. This can be achieved by granting licences subject to terms such as the following:
Copyright law places some constraints on the ability of a copyright-owner to preclude partial copying. One is the concept of 'fair dealing', for such purposes as research, personal study and review. This enables parts of an object to be used, provided that the part is not ' substantial'. This creates the risk of the content of the object being misunderstood (e.g. by being 'quoted out of context'); but in many circumstances the risk is not very serious.
The copyright-owner may, of course, choose to permit any part of the object to be used separately from the rest, or to permit some parts to be used but preclude such use of others.
The copyright-owner is likely to want the licensee to be able to copy the object under some circumstances, but not others. This can be achieved by granting licences subject to terms such as the following:
The copyright-owner may want the licensee to be able to make copies of the object available to others under some circumstances, but not others. This can be achieved by granting licences subject to terms such as the following:
The copyright-owner may want the licensee to be able to make changes to the object under some circumstances, but not others. This can be achieved by granting licences subject to terms such as the following:
For some kinds of objects, the licensing terms relating to adaptations can require very careful consideration.
The copyright-owner may want to encourage widespread use, but subject to particular conditions. This can be achieved by granting licences subject to terms such as the following:
The copyright-owner is likely to seek to avoid liabilities that might arise from the object, and, where that may not be feasible, to limit them. This can be achieved by granting licences subject to terms such as the following:
The copyright-owner needs to establish procedures whereby licences can be granted to and acquired by other organisations. It is likely to want such procedures to be very simple and inexpensive.
One straightforward mechanism is a hotlink to a web-page that explains the terms and grants a licence.
Less simple mechanisms may also involve negotiations, registration, arrangements for payment, and arrangements for delivery or download of the object.
Alternatively, the copyright-owner may prefer to take advantage of a service that provides a catalogue of licensable objects and a database of licence-types, and supports discovery, licensing, payment and download. The term Digital Rights Management (DRM) is sometimes used to refer to tools of this kind.
An example of such a service is AEShareNet. That includes a set of Licence Protocols, which were devised for the company by Philip Crisp of the Australian Government Solicitor.
The author of this paper is Chair of the Board of the company that runs the AEShareNet service. AEShareNet Limited is a not-for-profit company limited by guarantee. Its Members are the nine Australian bodies politic. Its primary focus is on objects of relevance to vocational education and training, but its scope also includes school-level education, university-level education, and the cultural sector.
Newmarch J. (2000) 'Open Content Licences', June 2000, at http://jan.netcomp.monash.edu.au/opendoc/paper.html
Newmarch J. (2001) 'Lessons from Open Source: Intellectual Property and Courseware' 6, 6 (June 2001), at http://firstmonday.org/issues/issue6_6/newmarch/
This information has been consolidated in Clarke (2003).
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Created: 20 June 2003
Last Amended: 2 July 2003
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