- June 14th, 2011
- 87 Comments
The Web is full of creative and practical resources that we can use to improve our projects. Photography, fonts, music and code are perfect examples. Finding stock objects and existing implementations is often quicker, cheaper and more practical than producing your own.
Whether free or not, these resources normally come with a license to ensure fair use. For professionals, understanding the limitations of a license is critical; with this knowledge, you’d be surprised by what’s available. Understanding copyright and licenses allows us to do what we do best: be creative.
In this article, we’ll cover the basic principles that govern copyright and licenses. We’ll then explore common licenses in our industry, with examples. We’ll cover the following:
- Copyright and licensing1
- What is “fair use”2
- What is “public domain”3
- Legal jurisdiction4
- License terminology5
- Creative Commons6
- Software licenses7
- Where licenses are used8
- Does my work need a license?9
- Final thoughts10
Quick disclaimer: I am not a lawyer! This is not legal advice, only the results of my own research. Please always read the entire license of any resource you use.
Copyright And Licensing
When we create something — let’s say a photograph — we own the copyright, which is our exclusive right as the author to own that work. We control who else can use our work and in what manner. For example, I could allow someone to print my photograph or adapt it in a piece of art. Rather than establishing verbal agreements, I can distribute my work with a license that sets the guidelines for use. The things that are copyrighted are sometimes referred to as “intellectual property.”
Licenses are granted by an authority to allow a usage; in my case, the use and distribution of resources by the copyright owner (i.e. me). I may decide to offer my photograph for free or charge a price; either way, I can include a license to limit usage, and I maintain the copyright. Just because someone pays money doesn’t mean they have full control or rights to what they’re buying. Licenses can dictate the number or uses, the bounds of use and even the length of time until the license expires.
Moreover, under “work for hire,” the employer holds the copyright, not the author or creative; in many cases, this is a company (such as a creative agency) or its client (by contractual agreement). In such cases, the creator retains “moral rights” to their work, including the right of attribution. This is partly why published articles refer to the author, although moral rights can include anonymity.
Copyright laws are incredibly complex, but this should be a good start.
What Is “Fair Use”
“Fair use” is an exception to the exclusive rights held by the copyright owner. It exists in some countries such as the US and UK. Under it, in certain cases, using work without permission is possible. If someone’s usage is defined as fair use, then they don’t need to obtain a license. Essentially, using copyrighted material is a legal right. Examples of fair use might include:
- Educational purposes, such as teaching and student research;
- Making commentary and criticism as part of a news report or published article.
There’s a misconception that noncommercial or nonprofit use is always acceptable. It isn’t. Fair use is a legal term and is judged case by case. Always research thoroughly if you think your use of copyrighted material is legal.
What Is “Public Domain”
Work that falls in the “public domain” basically has no copyright owner. You can use, modify and redistribute it to your heart’s content. An author can forfeit their copyright and, thus, put their work in the public domain (although it’s not quite that easy, as we’ll see later). Copyright ownership expires11 after the author’s death (generally 50 to 70 years after death in most countries).
Every country has its own interpretation of copyright law, but there are many agreements between nations. Licenses are enforced under copyright law, which is different than contract law. The distinction here is questionable within certain jurisdictions, each of which applies the law differently.
The Berne Convention12 (for the Protection of Literary and Artistic Works) was established in 1886 and is an international agreement that governs copyright. It states that each member state must recognize the copyright of work from other countries, and it must extend the same rights to foreign work that it gives to those of its own citizens. It also makes clear a minium standard of protection for copyright owners. To date, 164 countries have signed this agreement.
Licenses can be limited to certain jurisdictions. So, while something may be free in one country, the copyright owner could reserve all rights in other countries.
If you’re reading this, I can guess pretty confidently that you work on the Web and that you are, or will be, purchasing licenses from copyright owners in different countries. These licenses are bound by the laws of those countries, and you must respect them.
We’re getting into political and legal territory here. Remember: if in doubt, get legal advice.
A license can be written from scratch, but most people choose a well-known one. We’ll cover the common licenses that relate to our industry of website design and development, specifically those that allow for free usage — “free,” meaning that no money is required. Generally, licenses that govern paid resources are written individually, but all licenses have commonalities.
There is obviously a fundamental difference between, say, development code and stock photography. So, it should come as no surprise that a range of licenses exist. Each is tailored to the usage. Before we dive into them, let’s go over some common terminology:
A simple copy of the original work.
To alter copyrighted work in some way before using it.
- “Derivative work”
The result of modifying copyrighted work to produce new work.
The act of giving someone your work under a license.
The act of distributing work and its license after obtaining it under license from the original copyright owner.
- “Share alike”
Permission to distribute derivative work under the same or a similar license.
- “Credit” or “attribution”
The act of identifying the original copyright owner.
- “Copyright notice”
A written phrase or symbol (©) informing of copyright ownership (not necessarily required by law).
- “All rights reserved”
A common copyright notice declaring that no usage rights exist (again, not necessarily required).
A written guarantee included with the license (or, usually, not).
With this in mind, let’s start with the creative licenses.
Lawrence Lessig founded Creative Commons13 (CC) in 2001 to create a series of easy-to-understand copyright licenses for online creative work. These licenses established the notion of “some rights reserved.”
The Creative Commons license has six variations. It’s really a collection of licenses that cover particular uses. These include whether the licensed work can be used commercially, whether it can be modified, and whether derivative work can be redistributed under the same (or a compatible) license. A Creative Commons license can be restricted to certain jurisdictions or apply internationally.
The basic Creative Commons license is CC Attribution. It allows for all copying, modification and redistribution (even commercially), provided that the original author is attributed (with no implication of endorsement). Work under CC Attribution is essentially free to use.
The CC Attribution license can be extended to CC Attribution-ShareAlike. The same rules apply, except that all derivative work must be licensed the same way. This distinction ensures that all resulting work remains free. Wikipedia uses this license for its text.
Here are the four other Creative Commons licenses:
- CC Attribution-NoDerivs
Redistribution is allowed, provided that attribution is given and no modifications are made.
- CC Attribution-NonCommercial
Everything is allowed with attribution, provided that it is not done commercially.
- CC Attribution-NonCommercial-ShareAlike
The same as above, but derivative work must be under the same license.
- CC Attribution-NonCommercial-NoDerivs
Redistribution is allowed for noncommercial use and without any modification.
As you can see, the Creative Commons licence has six separate versions, all of which at least require attribution to the copyright owner.
You should attribute by citing the title of the work, the copyright notice, the author’s name and the license name. For example:
This work includes the photo “Photo’s Title,” available under a Creative Commons Attribution license, © Author’s Name.
If the original work includes a copyright notice, it must be left intact. Otherwise, you are free to attribute appropriately. Also, link to the work and license if possible. Informing the author is courteous but not required.
CC015 also exists. It enables copyright owners to waive all of their rights. It’s essentially a way of saying that the work is in the public domain and that there are “no rights reserved.” The concept exists because many jurisdictions don’t have a clear process for putting work in the public domain, and many legal systems actually prohibit the surrendering of lawful rights such as copyright ownership.
The Creative Commons licenses are clear and readable. As mentioned, Wikipedia uses the Attribution-ShareAlike. Flickr16 makes it easy for users to select one of the CC licenses, and it’s a great source of photography for your projects. You can even search Google for Creative Commons content17.
Written code is copyrighted: you own what you write. Of course, the simplest line of code, like
print('Hello World!');, can be rewritten totally independently, without knowledge of the original author, and both parties will own the copyright of their own version (however worthless it may be). But beyond a few lines, code does become valuable, and distributing it with a license is important.
Other intellectual property laws, such as patents, can also protect software. Software patent laws are hotly debated in the US, where they are granted. In many other countries, such as the UK and New Zealand, software cannot be patented. While copyright is a right, patents must be granted.
Software licenses cover the use of programming code. If you’re using a third-party library or elements from an open-source project, your usage must respect the relevant license.
Development licenses generally cover the following points:
- How the work and modifications of it can be distributed,
- Whether any derivative work must be made open source,
- What copyright and other notices are required for redistribution.
Software licenses can be defined as “permissive” or “copyleft.” The latter removes the right to add further license restrictions upon redistribution.
Below is a quick rundown of common software licenses and how they’ve evolved over the decades.
The MIT license18 is perhaps the most open of all. It effectively puts the work in the public domain. It explicitly gives permission, “without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sub license, and/or sell copies of the Software.” The only condition is that the full copyright notice (which declares no warranty or liability) be included. Work released under the MIT license can be used for anything, including commercial and proprietary software.
The original version, published in 1990, had four clauses, the last being an “advertising clause” stating that all promotional material for derivative work had to refer to the original source. This was later removed in 1999 in the “New BSD” or “Modified BSD” license.
What separates the newer three-clause BSD license from the MIT license is a clause stating that the name of the original copyright owner cannot be used to endorse any derivative work without prior permission. This eliminates any doubt about the right to use the person or organization’s name. Whether this clause is even required is debatable, because copyright and trademark laws are separate issues. Even though the MIT license does not declare this, we cannot assume permission of endorsement.
An additional two-clause “FreeBSD” or “Simplified BSD” license exists, which omits this endorsement clause and instead includes a disclaimer to disassociate any views made in derivative work from the original copyright owner. This can be seen as explicitly stating the opposite of an endorsement.
Both the MIT and BSD licenses give us complete freedom to copy, distribute and modify work for any purpose, provided that the original license and copyright notice are included. Derivative work can be released under another license or as proprietary software.
The Apache License
You can see from the BSD example just how difficult it is to word a license. There are so many ambiguities and connections to other laws that getting the point across is nearly impossible. Many more essentially “free” licenses have appeared in an attempt to make such intention clear.
The Apache License20 is a free software license that does not require the same license of derivative work. This means that code under the license can be used in open, free and proprietary software (like the MIT and BSD licenses).
It imposes the conditions that in any licensed file, all original copyright, attribution and trademark notices must be preserved. Additionally, with any modified work, a notice of change must be included. Any existing notices of change must also be kept. All of these notices must be distributed in a text file and in the source code or documentation.
This requirement to preserve modification notices makes the Apache license different from the MIT and BSD licenses. It also includes many more legal terms and conditions that (among other purposes) dissolves any liability of the original copyright owner.
The Apache license (version 2) is said to be GPL-compatible, meaning that a project containing code licensed under both must also be licensed under GPL version 3.
GNU General Public License
First written by Richard Stallman in 1989, the General Public License22 (GPL) is now at version 3 as of 2007. It was founded on the principle that we should be free to use, change, share and share changes to free software. No matter how the software is distributed, it remains free. This concept is called “copyleft.”
The basic principles of the GPL mean that, unlike the MIT, BSD and Apache licenses, work under GPL must remain under this license. GPL code can be sold, but no proprietary software can be derived from it. If you distribute any derivative work, then your source code must be made available under the same license. Essentially, once a work is released under the GPL, it remains GPL and no further restrictions can be applied.
Version 3 of the GPL specifically states that while code under the GPL can be used to implement digital rights management (DRM), using GPL code does not count as effective “protection,” and as such, anyone who breaks it cannot be help accountable under digital rights law.
Where Licenses Are Used
We already know that Wikipedia uses the Creative Commons Attribute-ShareAlike license and that Flickr allows users to choose a Creative Commons license. What else should we know?
Plug-Ins and Themes
WordPress and Drupal are important ones to note because they’re available only under GPL v2. This means that any derivative work must also be licensed under GPL; and according to the WordPress license page27, this includes all plug-ins and themes:
Part of this license outlines requirements for derivative works, such as plugins or themes. Derivatives of WordPress code inherit the GPL license. […] There is some legal grey area regarding what is considered a derivative work, but we feel strongly that plugins and themes are derivative work and thus inherit the GPL license. If you disagree, you might want to consider a non-GPL platform…
The GPL requires that if you make a derivative work of Drupal and distribute it to someone else, you must provide that person with the source code under the terms of the GPL so that they may modify and redistribute it under the terms of the GPL as well. However, you are under no obligation to distribute the code to anyone else. If you do not distribute the code but use it only within your organization, then you are not required to distribute it to anyone at all.
What does this mean? If you’re developing a WordPress or Drupal theme, it must be under GPL. You can distribute your work, should you choose.
If you’re developing a theme for personal use or for a client, you have little to worry about because you are not technically “distributing” it.
Selling themes on the open market is a gray area, because distribution must be under the GPL. The GPL allows you to sell this work, but it also allows others to redistribute and sell it, too; you can’t do much about that. However, theoretically, the only derivative work that falls under GPL is the PHP code; any images, CSS and other content in your project remain yours. On top of that, you are free to charge extra for technical support and so on.
Remember that while WordPress is open source and free under the GPL, it is still copyrighted. You have to respect its chosen license.
Does My Work Need A License?
If you’re publishing content online — be it design work, photography, blog articles, audio or video — then the default is “all rights reserved”. Unless you publish it under a license (or through a Web service that reserves some rights for itself — and most do), then only you hold copyright. That’s great, but what do you gain by giving others permission?
In his article “Pick a License, Any License3629,” Jeff Atwood highlights the interesting example of developers who publish code on their blogs. Unless the developer states otherwise, no one has permission to use that code in their project. Always consider the benefits of others using and attributing your work: it could be great self-promotion!
It’s worth noting that you do not need to issue a license in order to give permission for someone to use your work. Some areas of the law favor verbal and contractual agreements over copyright.
Additionally, when using services such as Twitter and Flickr, you are probably giving those websites full rights to your work as part of their terms of service. These websites couldn’t operate without your content, but they do take every advantage of reserving full rights over the content you publish. This allows them to develop their service in different ways on the strength of your content.
[…] you grant Yahoo! the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed […]
That covers just about everything!
While Flickr allows you to upload photos under a Creative Commons license for others to use, you also grant Yahoo permission to do anything it likes with them. I’m not condemning Yahoo for this practice because it’s common to all Web services. I’m just highlight the importance of reading the terms and conditions and understanding where you publish work and what rights you’re giving away.
With this information, you should have a strong understanding of how copyright and licenses work, why they exist and what they achieve. Ignorance of copyright — as of any law — is no excuse. By understanding it, we can take advantage of the wealth of creative content across the Web. If you’re publishing work online, consider sharing it under a license. You never know what interesting things people will do with it.
As mentioned, this article is the result of my own research and is not legal advice. You’ll need the latter if you’re unsure about copyright licenses.
- “A Short Guide To Open-Source And Similar Licenses31”
A Smashing Magazine article by Cameron Chapman.
- Open Source Initiative32
An extensive list of software licenses.
- “About the Licenses33”
A page that goes into detail on the variations of the Creative Commons license.
- “What Is Copyleft34?”
The general concept of free software.
- Producing Open-Source Software35
A guide to software projects, including chapters on licensing.
- “Pick a License, Any License3629”
An overview of licenses, by Jeff Atwood.
- “The Ethics of WordPress Themes at a Premium37”
Are WordPress themes open source? Is it right to release them on a pay-to-download basis?
- 1 #what-is-a-license
- 2 #what-is-fair-use
- 3 #what-is-public-domain
- 4 #legal-jurisdiction
- 5 #license-terminology
- 6 #creative-commons
- 7 #software-licenses
- 8 #where-licenses-are-used
- 9 #do-i-need-a-license
- 10 #final-thoughts
- 11 http://en.wikipedia.org/wiki/List_of_countries%27_copyright_length
- 12 http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works
- 13 http://www.creativecommons.org
- 14 http://www.flickr.com/photos/jorgeandresem/711148097/
- 15 http://creativecommons.org/choose/zero/
- 16 http://www.flickr.com/creativecommons/
- 17 http://www.google.com/support/websearch/bin/answer.py?&answer=29508&hl=
- 18 http://www.opensource.org/licenses/mit-license.php
- 19 http://www.opensource.org/licenses/BSD-3-Clause
- 20 http://www.apache.org/licenses/LICENSE-2.0.html
- 21 http://en.wikipedia.org/wiki/Apache_License
- 22 http://www.gnu.org/licenses/gpl.html
- 23 http://jquery.org/license/
- 24 http://www.modernizr.com/license/
- 25 http://raphaeljs.com/
- 26 https://github.com/scottjehl/Respond
- 27 http://wordpress.org/about/license/
- 28 http://drupal.org/licensing/faq/
- 29 http://www.codinghorror.com/blog/2007/04/pick-a-license-any-license.html
- 30 http://info.yahoo.com/legal/uk/yahoo/utos-173.html
- 31 http://www.smashingmagazine.com/2010/03/24/a-short-guide-to-open-source-and-similar-licenses/
- 32 http://www.opensource.org/licenses/alphabetical
- 33 http://creativecommons.org/licenses/
- 34 http://www.gnu.org/copyleft/
- 35 http://producingoss.com/en/
- 36 http://www.codinghorror.com/blog/2007/04/pick-a-license-any-license.html
- 37 http://themeshaper.com/2008/09/08/the-ethics-of-premium-wordpress-themes/