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Institute for Legal Questions on Free and Open Source Software

Open Content and Open Access

A few years ago ‚Open Content‘, the application of the license model for free software to other works was still far away but today it seems to have established itself. The term ‘Open Content’ is not always used consistently. Often it is used with a wider scope so that a lot of different license models can be summarized under it. These normally allow for duplication and distribution without the payment of license fees as well as the right for everyone to provide access to the content for all purposes or for specific (e.g. non-commercial) purposes.

Additionally often the right to distribute modifications of the content (with or without limitations) is granted. As a result it can be said that the term ‘Open Content’ has a broader scope than the already established term Open Source.

Others however use the term ‘Open Content Licenses’ in a much more narrow sense. Then only those licenses are seen as ‘open’ that allow not only duplication and distribution but also modification and distribution of the modified versions.

Additionally the term ‘Open Access’ can lead to confusion. It is for example defined by the ‘Berlin Declaration’ (English) signed by the big German research institutes and organizations and is widely used in the academic community. According to the Berlin Declaration, a publication satisfies the requirements of Open Access if it allows for the free distribution and modification of content on the internet. In so far Open Access and Open Content in the narrow sense seem to match. Additionally Open Access requires the publication on an archive server that is accessible online. Interestingly, the German version of the ‘Berlin Declaration’ does not include the right to modify the content. As a result the concept is not really clear. The parties to the ‘Berlin Declaration’ did not publish any licenses of their own so far and did not recommend any of the established licenses or license models.

Some of the licenses mentioned would be suitable legal basis for Open Access projects. In this regard however it has to be clarified if the requirements are based on the English or the German version of the declaration and which rights and obligations the license in question grants and imposes.

Open Content in wider sense has far reaching origins, since a simple note by the author such as ‘reprint permissible’ has been used for a long time to allow for decentralized distribution of copyrighted works under German law. In contrast to such simple and unclear notices (e.g. is distribution over the internet also permitted?) Open Content licenses allow for a differentiated grant of rights and define rules for related legal issues such as warranty and liability. The distribution of copyrighted works under open content licenses has in the meantime, especially in the scientific community gathered quite some interest. In combination with modern forms of distributing information and copyrighted works, especially over the internet this allows for possibilities that allow for quick spread of new knowledge as the basis for the generation of new knowledge.