Open Content Licences

The need on the part of an author to make his work available under an open content licence arises when a for him welcome reuse of the work is either not possible at all, or not possible in the way that he would like to make it possible – or is perhaps even obliged to make possible under research funders’ conditions of funding . An open content licence is a standardised contract by means of which the rightsholder grants rights of use to everyone in order to achieve wide distribution of his work. However, this is possible only to the extent that the author has not granted exclusive rights of use to a third party, for example a publisher.

Standardised models frequently used in science and research include Creative Commons (CC) licences, the Digital Peer Publishing Licence (DPPL), and the Free Documentation Licence of the GNU initiative (GNU FDL). The CC and DPPL models offer a German-language version that is adapted to the German legal framework, while the GNU FDL applies to the Anglo-American judicial area. The use of these models aim serves to provide open access (OA) to scientific and scholarly information. Making a work available under an open content licence means that in the case of a reuse that is explicitly permitted under the licence, users do not have to seek the permission of the author.

Open Access and Open Content Licences

If “genuine open access” (OA) to scientific and scholarly information is to be provided by means of an open content licence, this licence must allow the forms of reuse of the licensed work that are deemed to be essential for this purpose. Which forms of reuse are considered essential depends on what is understood by “genuine OA”. This understanding is shaped by the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities of 22 October 2003.

Building on the Budapest Open Access Initiative of December 2001, the Berlin Declaration requires that authors and rightholders of scientific publications grant to all users a free, irrevocable, worldwide right of access to these publications and allow them to copy, use, distribute, transmit, and publicly display the works and to make and distribute derivative works in any digital medium and for any responsible purpose subject to proper attribution of authorship. Furthermore, users should be permitted to make a small number of printed copies for their personal use.

Hence, the choice of a standardised licensing model complies with the requirements of OA in this sense only if the licence actually grants reusers the aforementioned rights.

Commonalities Between the Open Content Licensing Models

All open content licensing models offer one or more standardised legal texts, each of which constitutes a contract. As these texts are intended to be used by a large number of authors and rightholders, rather than just one, they are deemed under German law to be “general terms and conditions” that are used by the person who makes his work available under licence and that must therefore be effectively included in the relationship between him and the reuser. As a rule, this is realised by means of a reference to the licence chosen and a link to the text of the licence, or, less commonly, by attaching the text of the licence to the licensed work. In this way, the licensor requests anyone who wishes to use the work to conclude a user agreement under the conditions of the licence. The acceptance of this request, which is addressed to an unspecified number of persons, comes about when the reuser procures the licensed work and begins to use it. The effect of making the standard licence available in a foreign language of which the licensee does not have any, or a good, command is yet unclear.

By means of the licence, the user is at least permitted to use the work for his own personal purposes, to copy it, and to make it publicly accessible. The minimum requirement that licence-compliant use must fulfil is to acknowledge the licensor in the manner determined by him. It is often overlooked that the licensee who distributes the work or makes it publicly accessible – for example by making it available on his website – is obliged to attach the licence, or at least a hyperlink to it. Further consideration, in particular the payment of a remuneration, for licence-compliant use is not provided for in the standard licensing models. However, because the licensor may also otherwise avail of those rights that he has not granted by way of the licence, he is entitled to demand payment or to impose deviating or additional conditions for uses that go beyond those permitted under the licence

The Creative Commons Model

The Creative Commons licensing model was developed at Stanford Law School in the USA and is characterised by a modular design on the basis of US copyright. Probably the most complex of the three models mentioned above, it comprises the following four licence elements: “attribution” (BY), which requires that the licensor be acknowledged and which is part of each basic licence; “non-commercial” (NC), which forbids commercial use of the licensed work; “no derivatives” (ND), by means of which reusers are forbidden to adapt the licensed work; and “share alike” (SA), by means of which the licensor can require that the licensee makes permissible adaptations of the licensed work available under the same terms and conditions as those of the original licence. As the elements “ND” and “SA” are logically mutually exclusive, six meaningful combinations – the six basic licences – can be formed.

The CC basic licences are currently available in the 4.0 version – albeit only in the “unported” English-language version, that is, in a version that has not been adapted to country-specific legislation. It is intended to forgo porting in order to counter the fragmentation of the licensing landscape. As a result, the CC licences lose the charm of meeting the demand for licences adapted to country-specific legislation. All that is planned is a translation of the 4.0 version into German. By contrast, the 3.0 versions of the CC basic licences released in the summer of 2007 have been ported – that is, adapted to the German legal framework. From the point of view of the requirements of the Berlin Declaration that adaptations and use should be permitted for every responsible – and therefore also commercial – purpose, only the CC-BY and the CC-BY-SA licenses are “genuine” OA licences.

The Digital Peer Publishing Licensing Model

The Digital Peer Publishing Licences were developed on the basis of German law with funding from the federal state of North Rhine-Westphalia. Prof. Dr Axel Metzger, Hannover, and Dr Till Kreuzer, Berlin, were involved in drafting the licence texts. With the basic module of the licence, the licensor permits the reuser to read the licensed work, to transmit it electronically in unmodified form, and to make it available to the public. Although the licence does not distinguish between commercial and non-commercial reuse, the licensor retains the right to distribute the licensed work in material form. To facilitate the making of derivative works based on the licensed work, the licensor may use the extended modules to permit the modification of individual passages (modular DPPL) or the entire work (free DPPL). In contrast to the CC licences, the DPPL licences apply only to text works.

The modular DPPL does not fully satisfy the definition of OA used in the Berlin Declaration insofar as the declaration requires that adaptations of the licensed work be allowed. With regard to the reservation of the right to distribute material versions of the work, the DPPL can be considered to be in conformity with the requirements of the Berlin Declaration because the declaration explicitly refers to electronic media only. On the basis of the limitation on copyright provided for in Section 53 of the German Copyright Act, the reuser already has the right to make printed copies of the work for personal use.

The GNU Free Documentation Licence

The GNU Free Documentation Licence (GNU FDL or GFDL), which is made available by the Free Software Foundation (FSF), is based on US copyright law. The latest version, version 1.3, was released on 3 November 2008. The GNU FDL owes its development to the fact that, although free licensing was possible at quite an early stage in the software scene, there was no suitable licence for instructions and documentation for software. The copyleft principle is also a characteristic element of the GNU FDL. According to this principle, the reuser is obliged to make modified versions of the licensed work freely available under the same terms as the original licence. What is special about the GNU FDL 1.3 is that the licensed works may also be used and licensed under the terms and conditions of the CC-BY-SA 3.0 licence. With Version 1.3 of the GNU FDL, the FSF acceded to a request made by the Wikimedia Foundation, which oversees the Wikipedia project.

The GNU FDL allows the licensed work to be copied, distributed, and modified – also, and explicitly, for commercial purposes. It should be noted that certain sections of the licensed work may be excluded from the right to modify. However, it is questionable whether the GNU FDL can be considered to be legally robust in Germany. In addition to the reservations expressed above with regard to concluding agreements in a foreign language, the comprehensive warranty disclaimers provided for in the text of the GNU FDL, which also cover wilful intent, raise doubts because the contractual exclusion of liability for wilful intent is not possible under German law. However, with the exception of the possibility of excluding certain sections from modification, the licence satisfies the requirements of the Berlin Declaration.

The Licences of the Association of Scientific, Technical and Medical Publishers (STM)

The model licences released by the Association of Scientific, Technical and Medical Publishers (STM) on 30 July 2014, which are known as STM Licences, are not OA licences within the meaning of the Berlin Declaration because the three full licences and the two supplementary licences aim to reserve at least certain commercial rights. The STM states that the supplementary licences may be used as a supplement to CC licences. Hence, users run the risk of stipulating an invalid provision because the CC licences provide that – insofar as they are validly agreed – amendments to the licences may be made only by individual written agreement. Alternatively, the entire licence text, which may not then be called, or labelled as, a CC licence, must be adapted. This is a laborious task and it negates the advantage of granting rights by means of a standard licence.

Research Data

The copyright protection of research data is quite a new field. Not all research data are eligible for copyright protection. However, even if individual data that are not eligible for protection are aggregated in a database, the maker of the database may acquire sui generis database protection. Moreover, in the case of a systematic collection of individual research data that are eligible for protection, protection as a database work may be acquired under certain conditions. Careful thought should be given to making a database available under a CC licence, because in Version 3.0, the database maker merely waives the right to exercise the rights obtained under sui generis database protection or the right to exercise the exclusive right that follows from protection as a database work.

The Open Database License (ODbL) constitutes an alternative. Because the current version – version 1.0 – of this copyleft licence is available only in English, the difficulties outlined above in relation to the inclusion as general terms and conditions also exist here. By means of this licence, the rightholder can allow the reuser to share the licensed database, to produce works of his own from the database, and to modify, transform and build upon the database. However, the reuser is obliged to acknowledge the licensor and, if he modifies the work, to make the modified work available under the same terms as in the original licence. Moreover, he is not permitted to impose any technological protection measures on the database that would restrict the openness granted by the ODbL.