Customisable licenses: the way forward?

3.2 Customisable licenses: the way forward?

This goes back to the importance of the licensing terms. US Stanford Law Professor Lawrence Lessig proposes to offer customisable licenses to the different types of digitally copyrighted works. He created a venture named "Creative Commons"⁷⁸, whose purpose is "to produce flexible, customisable, intellectual property licenses that artists, writers, programmers and others can obtain free of charge to legally define what constitutes acceptable uses of their works.⁷⁹" This goes back to Lessig's central argument that copyright law is primarily designed to benefit the public and the progress instead of solely rewarding the authors of the works; instead, such a proposal is an alternative layer between full copyright law and the public domain.

These licenses derive from ‘free software licenses’. In particular, under a Creative Commons license, the licensees may copy and distribute the author’s work, provided that they comply with the conditions wanted by the author. ⁸⁰

Those protections have been divided into 4 different features, that the author is wanting -or not- to allow:

• 
  The author sticks to his moral rights: “he requires attribution”;
  
• 
  The author “allows commercial use of his work”;
  
• 
  The author “allows modification to his work”;
  
• 
  The author requires that the person using its work to release the additions he has done under the same licensing conditions, i.e. to “share it alike” (this is also called the ‘viral effect’ of the license).
  

Like open source licenses, such licenses use the copyrights of the authors but it does not propose a definitive abandon of the copyrights: they can choose which of their rights they want to give up to the profit of the users and what can and cannot be done with their work. Dispensations to the license can be granted by the author upon request. Certain will want full protection while others will not be bothered by certain uses of their work.

In parallel, Lawrence Lessig proposes the creation of 'conservatories' of IP or 'orphanware' for software. In those publicly available records, the source codes of programs, either not commercialised or belonging to companies going out of business, would be kept and available for everybody to be able to learn from them. This would avoid the loss of IP occurring at present.

However, Lessig's solution leaves also a number of questions open:

• 
  The positioning of such licenses compared to open source licenses should be handled with care. This could result in problems of compatibility of the licenses in case of combination of works. This is indeed a growing concern of the open source community today.
  
• 
  This results in the creation of a lot of different licences. As a result, users of such open source programs would need to be educated about the meaning of terms and conditions to exactly know what they are entitled to do. In the Corel case, certain executives of Corel already found the GPL license difficult to interpret and apply to their actions. From my personal experience of working with software programmers, this can definitely be a potential problem.
  
• 
  Those licenses will not have been tested in court; therefore their efficiency is quite doubtful as they could be proved invalid by a technicality. If it is the case, the user does not have a claim against Creative Commons, as the license entails a disclaimer stating that “Creative Commons makes no warranties for the information provided and disclaim liability for damages resulting of its use.” But then, how protected is the author of the work?
  
• 
  Last -but not least- issue is the enforcement of such licenses. How do you concretely enforce such a license requiring, for instance, the payment of a fee for a commercial use of the work? Creative Commons does not maintain a staff of lawyers to work on license infringement and clearly states: “CC Corporation is not a law firm and does not provide legal services. Distribution of this license does not create an attorney-client relationship. CC provides this information on an ‘as is’ basis”.
  

I am not yet aware of any case involving one of these licenses.

Conclusion: The use of copyright law through customised licenses could be a way forward for the software industry

Software licensing, as proposed by the open source philosophy, is a way forward for the software industry. I have to agree with Richard M. Stallman that the user should be able to fix bugs in your software by yourself if they are not satisfactory. Everybody is not skilled in the art of programming anyway. Most of the users would not know what to do with a source code and are quite happy to pay people to do it for them.

Ironically enough, the solution proposed by Microsoft seems interesting even though some would argue that they are mainly taking the Intellectual Property of the programmers who contribute to their software for free.

Furthermore, Creative Commons also provides an interesting alternative, which needs to be further tested and adapted in a business environment.

Both models –closed and open source- models are now coexisting: some firms selling free software are starting to be profitable and some others such as Sun Microsystems allow two versions of a program, namely one closed source version, which entails the latest developments of the software and the older version, free under the GPL license.
Open source addressed one of the major problems of the Information Age, which is that the Value of Intellectual Property has decreased along with the developments of the ways of promoting it.

The community has, realistically, welcomed this change and tried to deal with it. This is also a trend that Microsoft has picked up: they are ready to switch from a property-based economy to a service-based economy using the lessons taught by free software licenses.

The downside of such a switch is that programmers are not spending time developing software but rather supporting the existing ones and, as a result, the innovation is not fostered. This is probably an important limit of the Free Software Philosophy.

I would like to thank Yacine Belkadi, Catherine Colston and Massimo Pasquale-Coluzzi for their help, comments and support during the writing of this paper. However, any imprecision or potentially dubious conclusion is my own.

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