Open Licensing

Hello, and welcome to this short talk about Open Licensing. In this session, we will look at what licences are, and how they are traditionally used to manage rights in “intellectual property”. We’ll contrast traditional exclusive rights-holding with open licensing, which distributes permissions widely and non-exclusively, while imposing certain requirements on people who use the material. We present some examples showing how this can allow remixing material from different sources in a new form, and offer some guidance on online tools and further reading.

Why are open licences relevant?

Without being especially technical, open licences are a core part of the infrastructure for open research. They provide the legal foundation for forms of “sharing” which go beyond simply gaining access to material. Open licences give recipients the right to make use of the shared material in some potentially innovative ways.

What are licences, anyway?

First, let’s set the “open” aspect aside for a moment and talk about what licences do. They are legal agreements which give someone permission to do something which they wouldn’t have the right to do otherwise. Think of a hunting, fishing, or driving licence. A patent is not dissimilar in that if granted, it gives the applicant a temporary monopoly on their invention. However, unlike a driving licence or a patent, contemporary copyrights don’t need to be applied for: they automatically come into force when a work that qualifies for protection is created. Almost anything that is written down or recorded is subject to copyright, but crucially it is the creative expression that is copyrighted. Importantly, ideas can’t be copyrighted, and if you want to protect a method you’ll have to seek a patent. It’s worth mentioning that, typically in the UK, if work is created for an employer then the copyright belongs to the employer — although academic writing is an exception.

How are traditional licences used?

A licence can be issued by whoever owns a patent or copyright to allow another party to make limited use of the patented invention, or to publish a copyrighted work. Some traditional alternatives to licensing are to transfer copyright to the publisher — possibly in exchange for royalty payments — or to sell a patent.

What’s special about open licences?

Against this backdrop, open licensing does something pretty different. These licences permit anyone to do certain things which would otherwise have been an exclusive right. Depending on the preferences of authors and publishers and the terms of their selected licence, this may include: copying the work without limitation, selling those copies, and creating and sharing modified derivative works.

Open licences impose restrictions on use

Most open licences impose some additional requirements, typically requiring copies and modified versions to make a clear attribution to whoever owns the original copyright. Licences may allow people to create new derivative works based on the original — perhaps a film adaptation for example, or a remix of contents from multiple sources (I’ll come to an example shortly). Some licences require that any derivatives be released under the same terms as the licenced work that they derive from — this is a so-called “viral” clause. Software licences may impose the requirement that the source code for any derived versions be made available at no cost, alongside the compiled runnable software.

Perhaps the most common place for academics to encounter open licences is in the context of Open Access publishing. While the concept of “Open Access” puts getting access to material front and centre, open licences permit people to do more than just download and read. Popular open licences include the Creative Commons Attribution or “CC BY” licence and the CC Attribution-ShareAlike (or “CC By-SA”) licence. These licences permit republication and the creation of derivative works, requiring that the original author be acknowledged; CC By-SA’s “ShareAlike” clause additionally requires that the person reusing or adapting the material must share their derived work under the terms of the CC By-SA licence (hence “share alike”).

Open licences allow remixing

Where this gets particularly exciting is that if two works use the same or compatible licences, say, Wikipedia (which is published under CC-By-SA) and an open access journal article, then the contents can be combined, either by including excerpts of the research work in Wikipedia (with attribution, in line with the licence requirement, and with a citation a matter of good encyclopaedic practice), or by remixing the selected material in new publications. It is worth mentioning another offering from Creative Commons, the CC Zero (CC0) Copyright Waiver, which is not a licence: instead, it is used to transfer copyright and other associated rights to the public domain. In principle, this can facilitate reuse in settings where attribution would be cumbersome. CC0 is used, for example, by the European Commission for “raw data resulting from instrument readings, bibliographic data and other metadata.”’

You can get help choosing a suitable licence!

The range of available licensing options speaks to the fact that there is no one-size-fits-all licence. If you’re just getting started thinking about open licences, it could be useful to have a look at the Creative Commons’s “licence chooser” and the human-readable summaries of their licences.

Before publishing work online with an open licence, it’s wise to be sure you have the right to do so.

As indicated above, there is no one-size-fits-all licence. Even though CC By is widely used in Open Access publishing, Punctum Books for example, have made an argument (linked below) for using the more restrictive CC By-NC licence on their humanities monograph publications. This licence permits derivatives, but forbids commercial use of these derivatives. For those who want to learn more about these topics, here are some books on open licences and adjacent topics (which are themselves available as open access).

Links

• Creative Commons License chooser

• Intellectual Property Office: Ownership of copyright works

• Oxford Brookes University: Intellectual Property Policy

References

Suber, Peter (2012) Open Access (Cambridge, Mass.: MIT Press, )

Montgomery, Lucy, Hartley, John, et al. (2021). Open Knowledge Institutions: Reinventing Universities (Cambridge, Mass: MIT Press)

van Gerven Oei, V. W. J. (2020). Why CC BY-NC Licenses Are Still Necessary in Open Access Book Publishing. Punctum Books. Retrieved from https://punctumbooks.pubpub.org/pub/creative-commons-by-nc-licensing-open-access