Overheen the past twenty years or so wij have seen a rising tide of alternative copyright licences emerge – for software, music and most types of content. Thesis include the Berkeley Software Distribution (BSD) licence, the General Public Licence (GPL), and the range of licences devised by Creative Commons (CC). More recently a number of open licences and “dedications” have also bot developed to assist people make gegevens more loosely available.

The various fresh licences have given rise to terms like “copyleft” and “libre” licensing, and to a growing social and political movement whose ultimate end-point remains to be established.

Why have thesis licences bot developed? How do they differ from traditional copyright licences? And can wij expect them to help or ongemak reform of the traditional copyright system – which many now believe has got out of control? I discussed thesis and other questions te a latest email vraaggesprek with Jordan Hatcher.

A UK-based Texas lawyer specialising ter IT and intellectual property law, Jordan Hatcher is co-founder of OpenDataCommons.org, a houtvezelplaat member of the Open Skill Foundation (OKF), and blogs under the name opencontentlawyer.

Big question

RP: Can you start by telling something about yourself and your practice te the IP/copyright field?

JH: I’m a Texas lawyer living te the UK and focusing on IP and IT law. I concentrate on practical solutions and legal issues centred on the intersection of law and technology. While I like the entire field of IP, international IP and copyright are my most favourite areas.

Spil to more formal qualifications, I have a BA ter Radio/TV/Speelfilm, a JD te Law, and an LLM te Innovation, Technology and the Law. I’ve bot on the team that helped bring Creative Commons licences to Scotland and have led, or bot a team member on, a number of studies looking at open content licences and their use within universities and the cultural heritage sector.

I wasgoed formerly a researcher at the University of Edinburgh te IP/IT, and for the past Two.Five years have bot providing IP strategy and IP due diligence services with a leading IP strategy consultancy ter London.

I’m also the co-founder and principal legal drafter behind Open Gegevens Commons, a project to provide legal contraptions for open gegevens, and the Chair of the Advisory Council for the Open Definition. I sit on the houtvezelplaat for the Open Skill Foundation.

More detail than you can ask for is available on my web webpagina here , and on my LinkedIn pagina here.

RP: It might also help if you reminded us what role copyright is supposed to play ter society, how that role has switched overheen time (assuming that you feel it has) and whether you think it plays the role that society assigned to it successfully today.

JH: Wow that’s a big question and one that has switched fairly a bit since the origin of copyright. Spil with most law, I take a utilitarian / legal realist view that the law is there to encourage a set of behaviours.

Copyright law is often described spil being created to encourage more production and dissemination of works, and like any law, its imperfect te its execution.

I think what’s most interesting about copyright history is the technology side (without attempting to sound like a technological determinist!). Spil fresh and potentially disruptive technologies have come along and switched the balance – from the printing press all the way to digital technology – the way wij have reacted has bot fairly consistent: some attempt to suspend on to the old proefje spil others anxiously adopt the fresh proefje.

For those interested ter learning more about copyright’s history, I very recommend the work of Ronan Deazley, and suggest people look at the very first sections te Patry on Copyright. They could also usefully read Patry’s Moral Panics and the Copyright Wars. Additionally, there are many historical materials on copyright available at the homepage for a specific research project on the topic here.

Three tranches

RP: Ter the past twenty years or so wij have seen a number of alternative approaches to licensing content develop – most notably through the General Public Licence and the set of licences developed by the Creative Commons. Why do you think thesis licences have emerged, and what are the implications of their emergence ter your view?

JH: I see free and open licence development spil happening within three tranches, all related to a specific area of use.

1. FOSS for software. Alongside the GPL, there have bot a number of licences developed since the birth of the movement (and continuing to today), all aimed at software. Thesis licences work best for software and tend to fall overheen when applied to other areas.

Two. Open licences and Public licences for content. Thesis are aimed at content, such spil movie, photos, music, and so on. Creative Commons is certainly the most popular, but undoubtedly not the very first. The birth of CC does however represent a watershed ogenblik te thinking about open licensing for content.

I distinguish open licences from public licences here, mostly because Creative Commons is so popular. Open has so many meanings to people (spil do “free”) that it is critical to define from a legal perspective what is meant when one says “open”. The Open Skill Definition does this, and states that “open” means users have the right to use, reuse, and redistribute the content with very few confinements – only attribution and share-alike are permitted limitations, and commercial use voorwaarde specifically be permitted.

The Open Definition means that only two out of the main six CC licences are open content licences – CC-BY and CC-BY-SA. The other four involve the No Derivatives (ND) confinement (thus prohibiting reuse) or have Non Commercial (NC) confinements. The other four are what I refer to spil “public licences”, ter other words they are licences provided for use by the general public.

Of course CC’s public domain contraptions, such spil CC0, all meet the Open Definition spil well because they have no confinements on use, reuse, and redistribution.

I wrote about this te a bit more detail recently on my blog.

Three. Open Gegevens Licences. Databases are different from content and software – they are a little like both ter what users want to do with them and how licensors want to protect them, but are different from software and content ter both the legal rights that apply and how database creators want to use open gegevens licences.

Spil a result, there’s a need for specific open gegevens licences, which is why wij founded Open Gegevens Commons. Today wij have three contraptions available. It’s a fresh area of open licensing and wij’re all still attempting to work out all the questions and implications.

Open gegevens

RP: Spil you say, gegevens needs to be treated differently from other types of content, and for this reason a number of specific licences have bot developed – including the Public Domain Dedication Licence (PDDL), the Public Doman Dedication Certificate (PDDC) and Creative Commons Zero. Can you explain how thesis licences treatment the punt of licensing gegevens te an open way?

JH: The three you’ve mentioned are all aimed at placing work into the public domain. The public domain has a very specific meaning te a legal setting: It means that there are no copyright or other IP rights overheen the work. This is the most open/free treatment spil the aim is to eliminate any limitations from an IP perspective.

There are some rights that can be hard to eliminate, and so of course patents may still be an kwestie depending on the setting, (but perhaps that’s conversation for another time).

Te addition to thesis instruments, wij’ve created two extra specific contraptions for openly licensing databases – the ODbL and the ODC-Attribution licences.

RP: Can you say something about thesis implements, and what they bring to the party?

JH: All three are instruments to help increase the public domain and make it more known and accessible.

There’s some truly titillating stuff going on with the public domain right now, including with PD calculators – implements to automatically determine whether a work is te the public domain. The superb thing about work ter the public domain is that it is fully legally interoperable, spil it eliminates copyright confinements.

RP: Are there now open, free or public licences for every type of content?

JH: There’s at least something out there for everything that I know of, however there are edge cases te openly licensing trademarks or te some patent communities. Who knows tho’ what wij’ll be talking about ter Ten years?!

RP: You said that non-commercial limitations do not overeenstemmend to the Open Skill Definition of open. Te fact, many people argue that NC makes no sense at all, not least because it is practically unlikely to define what non-commercial means. What are your thoughts on this?

JH: The arguments against Non Commercial limitations tend to centre on the fact that it violates compatibility with other, open, licences (spil “open” means permitting commercial use). While NC confinements aren’t open, that doesn’t mean that they aren’t useful. Many successful publishers and authors ter fact incorporate NC limitations spil part of their online strategy.

Creative Commons did a investigate to attempt to understand more about what people mean with NC, and found that many licensors and licensees generally agree on the broad activities covered by the non-commercial confinement. While there are challenges with defining some of the edge cases around non-commercial use, there’s a definite standaard built into using it spil a licensing term.

Distributed production

RP: How significant do you think the rise of digital media and the Internet have bot te the emergence of free and open licensing (and the free and open source software movements that have accompanied them)?

JH: Digital technology and the internet have bot absolutely critical te the emergence and role of free and open licensing. Free and open licensing is a instrument to corset and encourage distributed production – lots of people working at different times and ter different places. That’s the fine thing about open source – providing access to the human readable code permits the “many eyes” method of production that Eric S. Raymond talks about.

One of my favourite examples of the power of distributed production (however not open licensing) is anime fansubs. An anime display can go on the air ter Japan and ter less than 24 hours be translated into English, subtitles inserted, format shifted, and then distributed out on the web via a worldwide network of unpaid people. Now of course whether that activity is legal is a entire different question, which I’ve written about a bit here.

RP: Most people seem to think that open and free licences provide a fresh type of copyright. That is not stringently accurate is it? Do they not rather simply separate out all the different rights that come with copyright today, and permit rights owners to assert those rights they wish to assert, and waive the others – and te a standardised way?

JH: You’re right – open licensing is not a fresh type of copyright – it’s the precies same copyright bundle of rights that the RIAA or the MPAA uses to enforce their rights. Open licensing just structures the relationship differently by providing broad permissions up vuurlijn for the work with few limitations, while the typical licensing treatment is often to have broad confinements and limited permissions.

Using public licences helps standardise and form a community around the various open licences, which ups their adoption and lowers the barrier of using openly licensed material by making it lighter to figure out your obligations once (by understanding a single licence) across a broad range of works.

One has to be careful when using the term “waiver” however – waiver means providing up your rights, i.e. you no longer have the right. A licence means that you still have the right, but give permission for certain types of use.

Open licences don’t normally waive other rights – they licence them. By tegenstelling, public domain dedications (PDDL or CC0 for example) are primarily waivers – because they attempt to help people totally give up their rights ter copyright (and database rights).

Licence proliferation

RP: Wij mentioned the GPL and the CC licences, but there are also open source licences like the BSD, the Artistic Licence, the Apache Licence, the Mozilla Public Licence, and the Microsoft Public and Microsoft Reciprocal Licences? Some argue that there are now simply too many alternative licences. What are the issues associated with licence proliferation and what is the solution (is there one)?

JH: The main kwestie with licence proliferation is one of interoperability. Some open licences aren’t legally interoperable with others, and so what can toebijten is that various licence silos can be created.

There’s not an effortless solution to this, however using a licence that plays well with lots of others (such spil the BSD family of licences, CC-BY, ODC-Attribution, and of course public domain instruments) can help ensure lots of interoperability.

RP: How can people find their way through the oerwoud of alternative licences now available? How can they know what licence is suitable for them?

JH: There are lots of resources available online for people to find out about the various free and open licences available out there. When considering a licence for something fresh, the best place to embark is not with a licence but with asking yourself, or asking the business: What is the purpose you are attempting to accomplish?

Building from those answers and the type of material (gegevens, software, content) you can then pick the open licence that most fits those goals.

RP: If one wasgoed attempting to sketch out a rough guide explaining the key characteristics of the different types of alternative licences how would you go about it – for example, people use terms like free, open, kosteloos vs. libre, and they talk about “share alike”? Is this not overly confusing?

JH: I see very little difference from a legal perspective when people talk about free vs. open vs. libre. They all use copyright to accomplish broadly the same goals (attribution, copyleft/share alike) and so it’s more a social/political opzicht rather than a straight legal distinction. The incorporation of libre into the debate of course produces a fine acronym to discuss it all – FLOSS licensing!

RP: The GPL is often referred to spil being “viral”. What does that mean ter practice?

JH: “Viral” is such a poor word to describe it, spil it implies that like a real virus you have no choice about being “infected” with it. “Viral” is used to describe what’s bot variously described spil copyleft, share alike, or reciprocal licensing.

It’s a pretty plain concept indeed – if you build on someone else’s work you have to use the same licence they used for their stuff for your contributions. It’s kleuter of like the golden rule, but for software licensing.

RP: So people opt to embrace copyleft, it is not something foisted on them involuntarily?

JH: Right. And it is voluntary because there is nothing that compels you to use the work of other people – it’s a choice. Just like if I choose to use software from a proprietary software vendor they will typically have all sorts of confinements on what I can and can’t do with the code, and if I don’t like it I can use an alternative, or not use it at all.

I think the key problem for people who describe copyleft spil “viral” is simply one of control – compared with other IT contracting they (often) don’t have the option to negotiate different terms to the licence and so see it spil forcing them to do something that they’d choose not to do.

Social and political issues

RP: Spil you said, there are also social and political issues at work here. Spil a result, there have bot a number of ideological disputes about the new-style licences. Free software advocates, for example, have criticised some of the Creative Commons licences, and indeed some have criticised the entire political logic of CC. Can you explain the background to this, and whether the kwestie has bot lodged?

JH: I don’t want to waterput words into anyone’s mouth, and attempting to sum up the number of disputes out there quickly wouldn’t do them justice. Like anything, CC has its flaws and its benefits, and ter any free (spil ter libre) society – and especially spil part of an overall open movement – thesis should be discussed.

RP: Some argue that the problem with Creative Commons is that it seeks to work around the copyright system rather than reform it, and so could end up bolstering an IP system that many feel has got out of control. Is this a valid criticism? Could it perhaps also be said of free software licences like the GPL?

JH: To some CC is an escape valve letting off just enough steam to prevent the copyright boiler from exploding, when they would rather the entire thing exploded, and so make it necessary to rewrite copyright law.

Te this view, CC prevents some critical legal reform by providing solutions to people who otherwise would be doing all the things necessary to get legislators moving quicker. It’s certainly a valid criticism but I think it’s safe to say they’ve lost that fight. Wij have CC licences, they’ve bot ported worldwide, and so they are te use globally te a broad diversity of contexts.

I think that CC might actually work ter the opposite direction of this argument – by making copyright law more accessible to people, and so helping them understanding the sometimes negative influence that copyright can have on their daily lives, maybe more people will become politically active te this area. Who knows? It could be an interesting research topic, and either way I’m sure wij’ll find out ter the next duo of years who wasgoed right.

RP: I wonder if perhaps one of the thickest problems posed by the copyright system today is the so-called orphan works phenomenon – which flows from the fact that ter most, if not all, jurisdictions copyright now comes into effect the uur a work is created or voiced. Is this a serious problem? If so, what is the solution?

JH: I see the main cause of the orphan works problem to be that automatic copyright (the default baked into international treaties) lasts so long, not so much that it is automatic ter the very first place. Many jurisdictions have terms of life + 70 years, and the real orphan works problem starts way down the line when no one remembers, or has any records of, who the actual author or rights holder is. So while wij may know toughly when a work wasgoed created, and so whether or not it is ter copyright, wij just don’t know who holds the rights.

Orphan works are a serious problem mainly because they represent such an unknown risk: If you don’t know who the rights holder is there is no chance of acquiring a licence (because the rights holder is unknown). Moreover, the seemingly everzwijn enlargening penalties for copyright infringement permanently raise the stakes. This poses a truly serious risk for cultural heritage institutions – our collective memory – who have lots of interesting material that they’re not sure what to do with due to it having this unknown copyright status.

Spil to a solution, there are many options being discussed, from more radical suggestions like having a very brief copyright term, to proposals that would work within the current framework such spil compulsory licensing. Who knows where wij’ll end up, but I think it’s becoming clearer to legislators via the world that something vereiste be done.

Still very much up for debate

RP: One problem that surely won’t go away any time soon for individuals creating copyrighted works is that if someone infringes their copyright there is little they can do about it unless they have access to a lotsbestemming of money – because access to the law is usually very expensive. Would you agree?

JH: I don’t think I’d agree with that at all. Of course a loterijlot depends on the specific facts and jurisdiction. But just sending an email to people and asking for them to conform can often get results, which is free! And ter many jurisdictions, legal counsel may take a copyright case on contingency if it needs to proceed further.

Access to justice is an kwestie across many areas ter the law of course, and not an kwestie special to copyright law.

RP: Critics argue that that some courts may not recognise licences like the GPL and the CC licences. There have now bot a number of cases involving thesis licences. What do wij learn from thesis so far spil enforceability is worried?

JH: While there are a few cases now, I think the concentrate for enforcement of FOSS licences is and always has bot on the community of practice built up around the licences by both the FOSS community and business users.

Eben Moglen and Richard Stallman often describe the GPL spil the constitution of the free software movement. I think that’s a very apt description, spil like a constitution and a society, there’s lots of enforcement through social norms and norms of interpretation.

The same is true for the CC licences – just by having such a large community of users, including businesses, help enforcement. Simply naming and shaming people that don’t meet thesis norms gets lots of people to come into compliance.

RP: You said earlier that when technology switches some people attempt to hold on to the old specimen, and others embrace the fresh monster. Since IP law has become deeply embroiled te the often-heated discussions about adequate models, and since – like any law – it determines what people can and cannot do, and so what models are possible, some believe that it has become part of a much larger fight inbetween open and closed models. If that is right, then presumably one of those models will eventually win. Do you agree? If so, how will the fight end? And what proefje do you think will win?

JH: I don’t see open and closed models spil a (meaty) battle that one side will win or lose. Open licensing is a legal implement that is also associated to various degrees with various social and political movements. Open licensing models, and approaches like, open innovation, are one option out of many approaches, and I think it will stay that way for a long time.

Copyright law will likely switch, and technology will switch and influence the need and rationale both for copyright law specifically and many other areas of law generally. Ter the end, however, I fundamentally believe ter a role for copyright and IP law te society. What that role is and how it’s played is still very much up for debate.

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