The risk of ‘an open license’

The notion of anyone creating ‘an open license’ has recently emerged, which raises concerns for people who may use the resources. If users, such as an author, lecturer or artist, use a work that carries ‘an open license’ which is not widely known and trusted by millions of people, how can users trust the legal fine print? There are hundreds of people around the world who have successfully completed the Creative Commons Certificate course and can provide peer-to-peer guidance on the meaning of the legal terms in the Creative Commons open licenses. There are about 2 billion works licensed with Creative Commons open licenses on about 9 million websites and there are many lawyers around the world who fully understand the six creative commons licenses. What does a potential user know about the legal fine print of ‘an open license’ of the work they may have just downloaded? Why would someone else have chosen to write their own ‘open license’ instead of using an existing creative commons license that millions of people know? What motivates a creator or repository owner to not use the standard licenses that millions of people use? What would they have written into the license and are there risks to the receiver — the user such as an author, lecturer or artist?

As a purely hypothetical example, let us imagine that ‘an open license’ has been linked to a work that you download, which claims in the shortened, plain English version that you may:

• Reuse the work
• Adapt the work
• Share the work

Many people may accept this at surface value and go ahead with using the work, wouldn’t they? But what if the creator of the ‘open license’ had put something like this in the legal fine print of the license code:

• You may reuse the work only by using the hyperlink to the original work in the repository where you found it.
• You may adapt the work, but if you wish to share it with anyone, even your class of students, you must first submit it for approval by the repository where you found the work.
• You may share the work, but only by using a link to the original work in the repository where you found the work.

The legal fine print in this hypothetical example does not contradict the simple English version above, but it gives a distinctly different set of conditions to using the work that has been downloaded.

We also need to consider the possible penalties that the provider of ‘an open license’ may include to give the license ‘some teeth’. They could add in the fine print, for example, that should a user not conform to the specifications (a possibility suggested above), that the user (the licensor wanting to reuse the work) will automatically accept that they will pay the licensee a fine, irrespective of the country in which the work is used. By using the work, the user would most likely have entered into a contract under their own country’s laws and be liable for whatever the writer of the license has written.

If you are the user of open content (Free Cultural Work, Open Educational Resource or Open Content), can you afford to take the risk of not fully understanding the license attached to the work? Can you risk not using the standard licenses that are used by billions of other works, by millions of people around the world? Will you go it alone with ‘an open license’ and trust that the provider is being fully honest and helpful? My experience warns me against custom created open licenses.

To learn more about the global Creative Commons open licenses, join your local chapter, take the online certificate course and share your work. If you have any concerns about the legal enforcement of Creative Commons licenses, please consult the License Enforcement guideline.

By Paul G. West
Chapter Lead, Creative Commons South Africa Chapter

CC-BY 4.0, https://creativecommons.org/licenses/by/4.0/

Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.

Attribution:

The risk of ‘an open license’, by Paul G. West, https://pgwest.medium.com/the-risk-of-an-open-license-d75c67323f7, CC-BY
Kindly attribute all included works appropriately.

Ver: 4 August 2021