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.
EJLT is an open access journal, aiming to disseminate academic work and perspectives as widely as possible to the benefit of the author and the author’s readers. It is the assumption of the EJLT that authors who publish in the journal wish their work to be available as freely and as widely as possible through the open access publishing channel.
Authors who publish with EJLT will retain copyright and moral rights in the underlying work but will grant all users the rights to copy, store and print for non-commercial use copies of their work. Commercial mirroring may also be carried out with the consent of the journal. The work must remain as published – without redaction or editing – and must clearly state the identity of the author and the originating EJLT url of the article. Any commercial use of the author’s work - apart from mirroring - requires the permission of the author and any aspects of the article which are the property of EJLT (e.g. typographical format) requires permission from EJLT.
Authors can sometimes become no longer contactable (through, for example, death or retirement). If this occurs, any rights in the work will pass to the European Journal of Law and Technology which will continue to make the work available in as wide a manner as possible to achieve the aims of open access and ensuring that an author's work continues to be available. An author - or their estate - can recover these rights from EJLT by providing contact information.
The European Journal of Law and Technology holds rights in format, publication and dissemination.
EJLT, as a non-commercial organisation - which receives donations to allow it to continue publishing – must retain information on reader access to journal articles. This means that we will not give permission to mirror the journal unless we can be provided with full details as to reader access to each and every journal article. We prefer and encourage deep linking rather than mirroring. Encouragement is thus given for all users – commercial and non-commercial – to provide indexes and links to articles in the EJLT where the index or link points to the location of the article on the EJLT server, rather than to stored copies on other servers.
Please contact the European Journal of Law and Technology if you are in any doubt as to what this statement of use covers.