Standardized contributor agreements – the next generation

Public licensing, such as Creative Commons, the Free Art License, the GNU General Public License or other free and open source software licenses has emerged rapidly over the past years as an innovative adaptation of the existing model of copyright. These “easy-to-use,” standardized copyright agreements offer developers, creators and licensors a simple way to say what freedoms they want their content to carry. Standardized contributor agreements are complementary to the widely used open licensing frameworks. They provide an equally “easy-to-use” way to utilize contributions in the first place and to safeguard all of the content and code created for a project by consolidating copyright (or exclusive exploitation rights) to counteract copyright fragmentation. The platform contributoragreements.org is set up to facilitate a public discussion about the next generation of standardized contributor agreements with a specific focus on the following legal and policy questions:

• How to make contributor agreements suitable for multiple jurisdictions?
• What are the different drafting options and legal consequences?
• What kind of signature formalities are needed, if any?
• How to define the purpose and exact scope of patent claims to be included in contributor agreements?

Internationalization – private international law and jurisdiction

One of the most important aspects of any kind of standardization effort in the field of public licenses or contributor agreements is the goal of creating a system that is legally valid and enforceable in multiple jurisdictions. To achieve this goal, licenses and agreements have to respond to the differences and particularities of copyright as implemented in national jurisdictions around the world. Standard copyright terms such as “derivative work” or “distribution” and related interpretation as well as licensing practices differ among jurisdictions and reveal several legal issues. Concepts like moral rights, duration of copyright, transfer of copyright or even authorship itself (e.g., in case of employment) vary from jurisdiction to jurisdiction and require careful consideration when drafting license agreements or assignment agreements.

One possible solution to address this problem could be further internationalization following the “porting approach” demonstrated by Creative Commons. According to Creative Commons, “porting” means literally translating the respective licenses into the national language and legally adapting them to the national copyright law. In this way, an international licensing suite is being developed consisting of various different national licenses, each of them reflecting their respective national copyright law.

Another possible solution to address international consequences could be to further internationalize and adjust the language of contributor agreements to reflect international standards, such as the Berne Convention, the WIPO Copyright treaty and others. This way, one international agreement would serve multiple jurisdictions around the world following the GPL or FDL approach and avoiding questions of interoperability.

When balancing arguments for both options, various questions on private international law have to be considered. The key question to be investigated arises when contributor A, a resident of South Africa, contributes to Project P, hosted and organized in Brazil, using a contributor agreement to manage and structure his rights. In case of infringement, which court would be competent to hear the claim and, more importantly, which law would be applicable? And finally, how can the ruling be enforced elsewhere?

How can the next generation of standardized contributor agreements address these questions and what role can a choice-of-law clause play? A detailed analysis of private international law issues raised by standardized contributor agreements can be found in the paper on Internationalization of FOSS Contributory Copyright Assignments and Licenses: Jurisdiction-Specific or “Unported”? by Axel Metzger.

Comments and suggestions are more than welcome: legal@contributoragreements.org

Drafting Options: Assignment, (Non)Exclusive License, and Legal Consequences

The question whether standardized copyright terms should be drafted as an assignment or (non)exclusive license has been discussed intensively among various legal experts. Despite the fact that a copyright assignment may not admissible in some jurisdictions, there is the overall question of legal consequences for all three drafting options with regard to the following scenarios:

1. enforcement
2. bankruptcy and related insolvency proceedings
3. death and questions of succession

Details and arguments for the most appropriate framework for drafting standardized copyright terms are analyzed in the paper Drafting Options – Assignment, (Non) Exclusive License, and Legal Consequences by Tim Engelhardt.

Comments and suggestions are more than welcome: legal@contributoragreements.org

Signature Formalities

Formalities of signature and writing are significant for standardized contributor agreements because many copyright statutes require that complete transfers of copyright, referred to as cessions or assignment, must be in writing. In addition, many jurisdictions even require that some types of licenses be recorded in writing. Depending on jurisdiction, the definition of what constitutes signature and writing can be different and is often not only set out in copyright statutes themselves, but contained in other laws on evidence, contractual formalities, electronic commerce, and sometimes case law on copyright statues.

In order to simplify copyright contribution transactions, we are working to provide clarity on signature formalities and offer the smoothest way to finalize and conclude respective licenses and agreements: The next generation of standardized contributor agreements will address the question of how to assure legal certainty and enforceability in local courts while relieving developers and projects from the burden of additional paper work. This includes clarity on whether signature formalities are constitutive or probative, meaning whether any failure to comply with formalities will completely invalidate the transaction or whether it simply creates problems of evidence.

With support from the international network of Creative Commons project leads and alumni, we have been working to collect data from various jurisdictions to better understand requirements and legal consequences of signature formalities in different copyright regimes. The results can be found at the Comparative Analysis of Copyright Assignment and License Formalities for Open Source Contributor Agreements by Andres Guadamuz and Andrew Rens.

Comments and suggestions are more than welcome: legal@contributoragreements.org

Patent Claim – exact scope and purpose of patent licenses relevant for FOSS licensing schemes

While patent claims play a minor role for open content projects, they are of significant importance for free and open source software projects. In order to allow for open licensing of all possible intellectual property rights evolving in software, most free and open source software licenses include a patent license to give unlimited permission to privately modify and run the program provided that licensors do not bring suit for patent infringement against anyone for making, using, or distributing their works based on the respective software. Consequently, the next generation of standardized contributor agreements should include a patent license of sufficient scope to comply with the scope of the “outbound” patent license in many free and open source software licenses.

In preparation for the launch of the next generation of standardized contributor agreements, we have worked with friends and partners to analyze the different approaches of “non-offensive” patent licenses or “non-assertion” patent pledges. While Twitter’s Innovators Patent Agreement, Google’s Open Patent Non-Assertion Pledge and the Defensive Patent License developed by Jennifer Urban and Jason Schultz offer great starting points for discussion, they are all tailored to reflect a specific situation, be it to assure employees that their patents will not be used in an offensive way without prior written consent of the original inventor, or be it to pledge the free use of certain, explicitly designated patents, in connection with free and open source software projects. Building upon these different initiatives, we have decided to implement a patent pledge option in the next generation of standardized contributor agreements, which is designed for contributors and especially contributing companies who are reluctant to use the broad patent license included in most contributor agreements currently available. An analysis of patent pledges can be found at this article covering patents pledges and innovation.

Comments and suggestions are more than welcome: legal@contributoragreements.org