[od-discuss] Questions about attribution requirements in OS and English Heritage data

[Kent Mewhort]

On 13-07-22 03:38 PM, Sander van der Waal wrote:
>
>
> Hi Kent, trying to get this clear: redistributing a work under an open 
> licence is *not* sublicensing, but releasing the original work under a 
> different licence *is*?
> Could you clarify what the difference is between these two cases? Is 
> it the licencor?
>
>
Sure, let me try to clarify.  If an author places a work under an open 
licence, this is effectively a licence "to the world".  The author 
grants the rights to anyone who receives the work.  If someone else 
redistributes that work, the downstream recipients are still receiving 
their licence from the original author, not the redistributor.  The 
original licence applies to everyone and there is no need to "sublicence".

In fact, a lot of open licences such as Creative Commons explicitly 
prohibit sublicensing.  This is to make it clear that you're not allowed 
to redistibute the work under a different licence.  You can't add any 
terms to, nor remove any terms from, the original licence.  Of course, 
if you make modifications, you can attach additional terms onto your own 
modifications (unless a copyleft clause requires you to place these 
under the same licence). Copyleft or not though, the original work is 
still under the original licence.

Even when licences don't explicitly prohibit sublicensing, it's usually 
implicit.  I'm not aware of any common open licences that allow 
sublicencing.  There are a few specialized ones that do, but I would 
hazard to guess they only do by mistake. The normal use case of 
sublicencing is in the proprietary context.  Consider a scenario where 
Company A licences a software library Foo to Company B. Company B 
packages Foo into their product Bar and sells this to their customers.  
Problematically, the customers who purchased Bar have no right to use 
the embedded library Foo, as the licence from Company A only applies to 
Company B, not Company B's customers.  The solution is a sublicence.  
The licence for Foo grants Company B the right to sublicence Foo to 
their own customers, under their own licence (usually for a 
per-sublicence fee).

With respect to open licences though, the only use I see for 
sublicencing is as a foolproof way to ensure compatibility with another 
licence.  For example, I was pushing for the OGL Canada to include a 
right to sublicence under CC-BY.  This way, if someone distributes an 
adaptation which combines works under OGL and CC-BY, they don't need to 
worry about whether the licence terms actually align.  They can simply 
sublicence the whole package under CC-BY.

It's certainly a complicated nuance, as demonstrated by some licence 
drafters even getting it wrong.  I hope this helps clarify a bit though!

Kent





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