Open Content Licenses Without Representation: Can You Give Away More Rights Than You Have?
Authors who are voluntarily placing their creations into the commons allow the public to build upon their work, sometimes provided that certain conditions are respected. Open content, open source or free licenses intend to facilitate sharing and reuse by lowering transaction costs. In theory, no additional negotiation or copyright or contractual related task is needed to reuse such works because authorization has been provided in advance. However, in practice, it might be uncertain whether all necessary rights have been granted or not.
We consider one example of difference between the various copyleft licensing schemes which are available to those who want to place their works or data in a voluntary commons: is the licensor offering the content with a representation that it does not content elements which may infringe upon the rights of third parties, including copyright infringement, privacy, trademark or right to image which might pertain to elements of the licensed work?
The article will present the different options and assess the legal consequences of offering representations, or not, and discuss the legal problems raised by waivers of warranties according to EC and national consumer and contract law of European civil law jurisdictions on the one hand, and the perspective of securing sustainable and safely reusable commons on the other hand.