Promote the interoperability of different licensing models
A - Issue at stake
- The issues at stake are twofold. First, licensing models may interfere with specific moral rights, raising questions of legal compatibility of their content. Indeed, the Berne Convention requires member states to provide legal protection for two specific moral rights: the right of attribution and the right of integrity.1 However, the Berne Convention does not provide for a harmonized regime on potential waivers, which is subject to national statutory law.2
- With regard to the right of attribution, Creative Commons licenses do not create an issue, since they all require attribution.3 Likewise, the French Licence Ouverte requires attribution.4
- However, with regard to the right of integrity, some countries such as France provide that these rights are non-assignable under statutory law.5 There is also authority in favour of accepting assignments of moral rights under the condition that the author has “a realistic chance to foresee any changes that will be made”6, which is very unlikely in the context of standardized open content licenses.7 This means that even if an author has assigned his rights to a third party under a license, he still maintains the moral rights to his work.
- As a result, Creative Commons licenses do not cover all moral rights; by using such a license, an author waives specific rights, but not in their entirety.8 Authors should be able to waive their moral right of integrity as they like – or otherwise agree via the Creative Commons license that their work can be altered or transformed – in order to allow the use and modification of their works.9
- Second, various licensing models exist and many more are likely to emerge in the future, raising concerns of interoperability. For instance, the question arises as to how a specific licensing model translates into another. Moreover, licenses may use a different terminology as to their scope and requirements, which complicates their interoperability. Words such as “non-commercial” are ill-defined and subject of controversy.
- Several national licensing models have addressed the issue of compatibility and expressly refer to well-known licenses.10
- However, since most licenses do not define the used terminology, or make up their own definition, it is necessary to draft a harmonized terminology. In the event of restrictive licenses, multi-licensing may be desirable for compatibility with the licencing scheme of other models.
B - Clarifications
- All licensing models should require attribution. Also, national legislation shall be adapted to the era of open licenses in that authors are entitled to waive their right of integrity through standardized open licenses. Authors shall be allowed to waive such right with an explicit description as to what the waiver encompasses.
- All licensing models should explain their compatibility with other licensing models. No additional requirements other than attribution and those related to the subject matter should be implemented so as to render such licensing model interoperable to the greatest extent. The policies should seek to promote the understanding and use of open licenses and encourage the use of a harmonized terminology