For Approval: Academic Citing License

Rick Moen rick at
Tue Sep 28 23:51:12 UTC 2004

Quoting Michael Poole (mdpoole at

> US law is less clear than you imply.  From the WIPO Copyright Treaty:
> "Computer programs are protected as literary works within the meaning
> of Article 2 of the Berne Convention."  The Berne Convention reserves
> "public recitation" of literary works to the copyright holder, and
> Article 8 of the WIPO Copyright Treaty further expands the rights
> reserved to the author of a literary work.  For literary works, 17 USC
> 106 does reserve the rights of public performance and public display
> to the copyright holder.

It is unclear to me from the wording of the statute that the usual
sorts of situations involving execution of code (per se) constitutes a
"public performance" within the meaning of copyright law.

> Authors do not enjoy (in the US) performance rights on code's
> execution, but they do enjoy public performance rights as far as the
> term applies to their programs.

This sentence's ending qualifier seems to make it in agreement with my
statement, not disagreement.  ;->  It may be that, if you own copyright
to DeCSS and Placido Domingo holds public recitals of your C code onstage 
at Carnegie Hall, he might owe you royalties.  Thus my own qualifier
"per se", which seems to have snuck around behind both of us and shook
hands with yours.

> Cf "external deployment" clauses such as those found in the Open
> Software License and RealNetworks Public Source License.

OSLv 2.1's clause 1(d) purports to grant a licence "to perform the
Original Work publicly".  Which begs the question of what it means to 
perform the work.  But OSL needn't be used solely for software, but can
be used for any "original work of authorship".

Clause 5, the one you have in mind, says in part:  "As an express
condition for the grants of license hereunder, You agree that any
External Deployment by You of a Derivative Work shall be deemed a
distribution and shall be licensed to all under the terms of this
License, as prescribed in section 1(c) herein."

Of course, the fact that a licence purports to regulate something
doesn't actually establish that it does, whether in software or anything
else.  Maybe Larry, who's both a Real Lawyer<tm> and the licence's
author, will be kind enough to comment.

RealNetworks Public Source License 1.0 likewise purports to cover either
software or "other works", and likewise has that sort of "external
deployment" clause, as you say -- _but_ makes no reference to
"performance rights" in so doing.

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