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Overview of licenses

What is a copyright license?


Copyright license is a permission to perform certain acts that are otherwise restricted; the name comes from a Latin word ‘licentia’, meaning (roughly) ‘permission’. A copyright license can be defined as a legally enforceable ‘promise not to sue’ for performing the allowed restricted acts. Unlike copyright transfer, a license does not transfer any exclusive rights to the licensee; the rights stay with the licensor. A copyright license can therefore be compared to a lease agreement (where e.g. the property of the apartment stays with the landlord, the tenant is only allowed to live there during a certain period of time), while copyright transfer can be compared to sale (the seller loses all the rights which are transferred to the buyer). In practice, a license should be concluded in writing (although many jurisdictions may also recognise unwritten, i.e. implied licenses). Please keep in mind that it is impossible to transfer (or to license) more rights that one actually has; therefore, logically, before you license a work, you have to make sure that all the relevant rights belong to you.

 

 


What should a license include?


A license should include several elements in order to be valid (or just functional). These are typically:

  • the parties: who is the licensor (the ‘giver’), and who is the licensee (the ‘receiver’); in ‘public’ licenses, the permission is granted to the general public, and so the licensee is defined by a deictic expression, such as e.g. User or Customer; in certain contexts (such as Terms of Use of social media services), the licensor can be defined in this way;
  • the subject matter, i.e. the definition of the licensed content; it can be specified in an Annex, if it’s very long, e.g. if it includes several hundreds of press articles;
  • the scope, i.e. the licensed rights; does the license only concern copyright (reproduction / communication to the public / distribution) or is the sui generis database right (extraction / re-utilisation) also included?;
  • the purpose: is the permission limited, e.g. in order for the content to be used for scientific research, for publication in a specific newspaper etc.;
  • the duration: is the license limited in time (e.g. for ten years), or is it for the duration of the copyright or other licensed right (which in practice means that the uses can continue for an unlimited period of time);
  • the territorial scope: in some jurisdictions, this may be a condition for validity of a license; it is still very important in agreements concerning e.g. broadcasting rights; as a general rule in the Digital Age licenses should be worldwide;
  • information about exclusivity and transferability: an exclusive license means that the relevant permission can only be granted to the licensee (the licensee has the exclusivity); researchers are typically dealing with non-exclusive licenses; a transferable licenses means that the licensee can grant permissions (within the scope of the licenses) to further sub-licensees; in the context of academic research, transferability is desired, but often difficult to negotiate with rightsholders;
  • applicable law and competent jurisdiction (especially if it’s an international contract): consult a lawyer to help you with this clause;
  • remuneration (if applicable).