Wikimedia Licensing Policy Change – A Conundrum
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By Herkko Hietanen
Dr Herkko Hietanen, the contributor of this article, wrote his PhD thesis on Creative Commons licensing. He is a researcher at the Helsinki Institute for Information Technology, a visiting scientist at MIT and a research fellow at Berkman Center for Internet and Society at Harvard. He is also a partner of Turre Legal, a firm specialized in advising clients who use and develop open licensing services and products.
The Wikimedia Foundation has taken the Free Culture movement a major step towards Creative Commons (CC) licensing – a welcome move as CC licenses are well-suited to such collaborative projects. Nevertheless, the transition raises a number of legal questions.
Wikimedia announced in spring that it would change its primary licensing from the GNU Free Documentation License (GFDL) to the Creative Commons Attribution Share-Alike License (Share-Alike), a change that will affect the Wikipedia and Wiktionary sites. The decision is a step toward simplified licensing.
Copyright laws make it necessary to obtain permissions for use even when working on collaborative projects. Licenses granting those permissions, therefore, reduce legal friction. For decades, the free software and open source movements have relied on copyleft licensing, such as the GFDL, which grant reuse and reproduction rights to everyone. Such licenses also play a significant role in collaborative Web 2.0 development.
Collaboration of FSF, CC and Wikimedia
At the time of Wikipedia's inception in 2001, the GFDL was the leading open content licensing option available. But it was originally designed for software manuals and not best suited for multi-user collaboration projects like Wikipedia, which span different media, such as photos, video and audio. For example, the GFDL requires that a fairly long license text be included with each copy of a licensed work.
Launched in 2002, with the primary purpose of simplifying online licensing and collaboration, CC has evolved to become the de facto standard for open content licensing. It provides flexible tools defining the levels of freedom offered by licenses. Authors can choose to grant a set of rights varying from fairly limited distribution and reuse rights to public domain dedications. The Free Software Foundation (FSF) has accepted some CC licenses as fitting their definition of “free.” However, the CC license and the GFDL are not interchangeable.
Wikimedia’s change of licensing policy followed amendments to the GFDL by FSF last year that explicitly allow changes to Wikimedia’s licensing strategy. The new GFDL 1.3 version includes a clause, in the small print, giving Massive Multiauthor Collaboration (MMC) sites such as wikis a time-limited opportunity to relicense to CC’s Share-Alike license the materials the public contributed to them under the GFDL.
Over 17,000 registered Wikipedia and Wikimedia editors participated in the community voting process that led up to Wikimedia’s April decision. When the polls closed, 75 percent were in favor of the license amendment, 10 percent were opposed, and the remaining 15 percent had no opinion regarding the change. However, there is no way of knowing the opinion of the tens of thousands of Wikipedia contributors who did not vote. They did not approve nor disapprove the licensing change.
The way the Wikimedia change was brought about therefore raises serious questions. How could a small part of the community vote for a license change affecting all contributing right owners? The answer can be found in the small print of the GFDL text, which states that new versions of the license can be introduced.
The biggest change is that the over six million articles currently available on Wikipedia and Wikimedia's other wikis can be more easily combined with tens of millions of works that use similar CC licenses.
The licensing change affects all Wikimedia content. Nearly all existing content is relicensed with the attribution-share-alike Creative Commons licenses.
Wikimedia requires dual-licensing of new community edits, but it will allow imports of Share-Alike-only content from third parties. Importing GFDL-only content from third parties is no longer allowed.
Authors and editors are required to consent to being credited by re-users; at minimum, this will be done through a hyperlink or URL to the article to which they are contributing. The GFDL required the whole license text to follow the licensed work. CC licenses require only that the link to the license and the licensor’s copyright information be preserved.
CC licenses will not solve that problem of interoperability between open licenses. However, many of the works hosted by Wikimedia will be dual-licensed, and re-users can choose to use these works with either license.
Legal problems of the transition
The approach used to introduce the new licenses is problematic on two counts. First, the GFDL does not disclose which Share-Alike license MMCs can use. There are over 50 official versions of CC licenses, which are translated into several languages. Among these, for example, the official Share-Alike license has ten English language localized versions, as Australia, Canada, England, Hong Kong (SAR), New Zealand, Scotland, Singapore, South Africa and the U.S. have their own version of it – each based on the template license in English. All the localized licenses share the key legal provisions; however they all have subtle differences. The U.S. version is most similar to the template license, including the long legal boilerplates common in the U.S. legal system, while England’s version is simplest and more user-friendly. Wikimedia chose to use the “unported” license that was designed to act as a tool for translation and localization of the licenses.
Second, it brings in two additional parties: FSF, which could introduce new licensing terms affecting the licenses of works that use previous versions of the license; and MMC sites, which can choose to relicense the works with a Share-Alike license. It is unclear as to who has the authority to make decisions regarding relicensing, seeing that the GFDL defines an MMC as any World Wide Web server that publishes copyrightable works and provides prominent facilities for users to edit those works.
Let’s illustrate the problem with an example. Unaware of the existence of CC licenses, a writer may have licensed a book in 2003 with GFDL version 1.2. Say that, in 2005, a user took a chapter from that book and posted it as a Wikipedia article, which is permitted by the license. Then, in 2008, the work was made available under GFDL version 1.3 – again the license permits relicensing with a later version of the license. In 2009, a group of Wikipedia editors decided to make the article available with one of the CC licenses. That makes two license changes in six years, with the original licensor possibly unaware of either of them.
It is a matter of legal debate as to whether clauses covering future possibilities are valid in the case of licensors who were unaware of exploitation or licensing options not yet invented at the time of initial distribution. Most European countries have laws nullifying such agreements.
The idea that a third party would change the parameters of existing agreements between licensors and licensees was not well received by the open content community. What if the changes do not express the licensor’s intent? A licensor may have opted to use the GFDL to avoid the work’s being distributed as part of CC licensed works. The GFDL’s future clause places some limitations on the new license version. Article 10 states that “new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.”
The license clause enabling the interoperability of future versions and the clause providing for a change of license policy are open agreements that can later be defined by a third party. Such agreements are typically deemed legally invalid, as copyright licenses are normally interpreted narrowly. The whole idea of licenses as dynamically changeable by a community – whether by CC, FSF or Wikimedia – further underlines the communal nature of CC licensing and GFDL. At the same time, the arrangement further distances the license from individual management of property rights. Nevertheless, introducing new versions of licenses is practical in a world where technology creates new uses for licensed works, and provides a way to fix errors in license texts, to respond to changes in laws and to adapt to new forms of media, distribution and use of works.
In an open letter posted in December 2008, FSF’s president Richard Stallman noted that "FSF has been talking with the Wikimedia Foundation, Creative Commons and the Software Freedom Law Center for a year" to plan the license-migration path. FSF has taken pains to ensure the transition is fairly and ethically conducted, and that changes respect the spirit of the license. A few months after the transition, it seems everything has gone smoothly and contributing right owners whose works are relicensed do not object enough to complain. If the implementation of the change proceeds as expected, it will be an extremely important victory for Creative Commons and the Free Culture movement.
|What is Creative Commons?|
Creative Commons is a non-profit organization dedicated to making it easier for people to share and build upon the work of others in a manner consistent with the rules of copyright. CC provides a set of licenses that help authors and right owners to change copyright’s “all rights reserved”-default to more permissive “some rights reserved.” CC is a parallel movement to Free and Open Source software movements. It is trying to create a creative atmosphere where asking permission is no longer necessary, because permission is already granted with the licenses. CC’s licenses are free to use and CC provides tools to mark creative works with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.
While the movement originated in the U.S., it has grown to be a global one. CC licenses have been localized and translated to over 50 jurisdictions. CC has managed to become the de-facto standard of open content licensing. Google and Yahoo, among other search engines, support CC’s machine readable legal metadata, making the location of works easy. There are tens of millions of works licensed with CC licenses. Yahoo’s photo service Flickr hosts over 130 million CC-licensed photos. Amateur photographers are not alone; academia and open access publishers have welcomed CC with open arms.
While the open content movement provides a healthy alternative to restrictive copyright management, it is still commercially a marginal phenomenon. But, so was the open source movement for years before it became a multibillion dollar business.
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