Open Content Licenses Without Representation: Can You Give Away More Rights Than You Have?
Compares representations and warranties of non-infringement in various public copyright licenses. Version 1.0 of various CC licenses represent that the licensor has, to the best of their knowledge, secured rights necessary and the work does not infringe. Subsequent versions of various CC licenses expressly disclaim warranties and representations of non-infringement, or are silent. Various tools that step a potential licensor through licensing, and terms of service for some websites that require contribution under public copyright licenses, make potential licensors aware that they should have all rights needed or make a representation to the service that they do have rights needed.
Licensor representations of non-infringement are typically thought to expose licensor to too much risk. Author claims:
- it is more efficient, logical and fair to shift the burden of rights clearance, if it has to be carried at some level, from licensees to licensors, who know better what pre-existing material they integrated, rather than to offer works for which permission seems to have been granted, but which may actually contain hidden infringement. [...] There could be fewer licensed works. But works offered with representations and the same amount of rights they actually received and contain could be safely reused to build perhaps smaller, but more solid commons.
Argues that metadata "have underused potential" for conveying information about representations and warranties of non-infringement.
Theoretical and practical relevance:
This paper cites the AcaWiki terms of service.