Development of Creative Commons licenses

["Sincaglia, Nicolas" <nsincaglia AT musicnow.com>]

>The weirdest thing I've seen is projects that ask you to grant
*co->*ownership of the copyright in your contributions. I'm very
confused by >what the legal effect of that would be.

If one wants to license a work that is co-owned by multiple copyright
holders, one only needs permission from one of the co-owners to license
the work and negotiate the terms of the license. The licensee will need
to pay royalties to all of the owners but requires only one owner's
permission.

Obviously the co-owners could have an agreement between themselves that
could limit each others ability to license the work without the others
permission but as a licensee, this is not your concern.


-----Original Message-----
From: cc-licenses-bounces AT lists.ibiblio.org
[mailto:cc-licenses-bounces AT lists.ibiblio.org] On Behalf Of Terry
Hancock
Sent: Friday, April 07, 2006 9:07 AM
To: Discussion on the Creative Commons license drafts
Subject: Re: [cc-licenses] author/copyright holder

Daniel wrote:

>It is not clear to me what distinctions to make between author and
copyright
>holder, especially when there are multiple authors. It is possible and
>advisable to include all authors as copyright holders? It seems that
the
>convention in many published works is for a single institution or
individual
>to hold the copyright, even when attribution of the work is to multiple
>authors (edited books by authors with copyright held by the publisher).
I
>believe this is to facilitate waiving of copyright and changes to the
>copyright conditions at some later date by the publisher or other
single
>party.
>  
>
Having a formal legal entity act as the copyright holder allows
license changes to be made later, and provides a central point of
contact
for clearing rights (i.e. paid licensing).

This usually occurs in one of two ways:

In the commercial environment, the work is often "for hire", which means
that the company owns it (unless you have specific contract terms to
alter
this).

In the free-software world, it usually happens because contributors
have,
as a condition of contribution, signed a waiver allowing their
contributions
to be donated to the project (usually the legal entity controlling the 
project).
This requires signed forms to be filed with the entity, and is a major 
hassle,
so it is often simply too much trouble (But the Gnu project does this,
for
example, and there are other examples).

Book-publishing doesn't necessarily do this -- it depends on whether
they "buy all rights" or just "license the work" (you generally want
the latter!).

But there's another reason why it's not done, too, and that is *trust*.

Consider what happened to Sourceforge (the software package, also called
"Alexandria").  The company decided to "take the project private".  That
means that if you had contributed work to the project, your work was
appropriated by VA (the owner of Sourceforge).  They could only do that
because they had control of the rights.  I haven't investigated, but I'm
pretty sure that they could legally do that only because they had such
a copyright ownership agreement.

Now, of course, there is still gForge, which was forked from Sourceforge
at the last free version -- but it's a fork.

Other projects have intentionally left rights ownership to contributors
precisely because it makes this kind of appropriation nearly impossible
to achieve (you'd have to hunt down every contributor and get their 
permission
separately -- at least in principle).  Their willingness to accept this 
obstacle
is a signal to contributors that they will not ever attempt such an
appropriation.

Now, this does, however, create a problem when you later find out that 
there's
a problem with the license: maybe you want to change it to a more
standard
license; or maybe somebody's found an enormous gaping loophole that you 
never
realized existed; or maybe the license is just being upgraded; or maybe 
you just
want to make your work compatible with more licenses.  If you've chosen
the
"many authors" route, you could get stuck.

An alternate solution is to include an upgrade clause in the license 
itself (as in
the CC-By-SA) or in the standard license grant (as is conventional -- 
but not universal --
with the GPL).  This means you trust, not the principal owner of the 
project, but
the body that created the license (e.g. and respectively: Creative 
Commons and
the Free Software Foundation).

The weirdest thing I've seen is projects that ask you to grant 
*co-*ownership
of the copyright in your contributions. I'm very confused by what the
legal
effect of that would be. The only thing I can imagine is that it either 
allows them
to appropriate at will anyway (so it's the same as a total grant), or 
else it might
require them to hold a vote amongst contributors (so that they have a 
majority
decision of the rights-holders).  But I'm not really sure. However, 
there are projects
that do this, including (IIRC) the OpenOffice.org project.

>What are good practices in this regard, and what are the
>options/implications of multiple copyright holders? Are all authors
>automatically copyright holders, and should their names appear as such
(in
>addition to being included as part of the citation). Creative Commons
sight
>seems to assume a single copyright holder, with attribution to multiple
>authors.
>  
>
See above for the practices I know of. I can't really vouch for what
you should do (and I Am Not A Lawyer, yada yada...), but I personally
have tended towards leaving the ownership in the hands of contributors,
because it's easier to manage and it makes less of an impression that
you are "up to something".

The assumption in the free software / free culture world seems to
indeed favor the model:

1) *Founder* creates the work
2) *Contributors* enhance the work

but this seems dated at best to me.

We now have a lot of second-generation free works in which:

1) *Founder 1* creates work A
2) *Founder 2* creates work B
3) *Contributors 1* enhance work A
4) *Contributors 2* enhance work B
5) *Synthesizer 1* combines work A and B into work C
6) *Contributors 3* enhance work C

...and so on...

In the university environment, as well as in some corporate
environments,
there is another possibility which is that:

1) *Collaborators 1, 2, 3, and 4* create work A
2) *Contributors N* enhance work A
...and so on as above...

It's even possible, especially on an artistic project, that this kind
of cooperation occurs spontaneously over the web.  Instead of
a "Founder", there's just a "Director" or "Writer" who couldn't
possibly create the work on their own.  The usual assumption,
I think, is that these people will be organized through some official
legal body that can act as rights holder.

In fact, in your situation, you might want to investigate whether
your university is going to have the rights in your work.  I know
this is true at Caltech, for example (!), and has resulted in some
pointlessly restricted licensing on scientific software.

Cheers,
Terry

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com


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