[License-review] Request for legacy approval: The Unlicense

McCoy Smith mccoy at lexpan.law
Mon Mar 30 15:38:59 UTC 2020

I  think what people mean when they say “there is no public domain in some countries” is “there is not mechanism to allow a dedication to the public domain before the expiration of the term of copyright on a work.”  After expiration of copyright, works do go to the public domain (although there are some works under perpetual copyright like, IIRC, the King James Bible and Peter Pan in the UK).


Here’s an article that says at least in Germany, a public domain dedication is invalid: https://rd-alliance.org/sites/default/files/cc0-analysis-kreuzer.pdf  I think moral rights in France and other countries might also be an impediment to such a dedication.


Neverthless, Unilicense, like CC0 has a fallback license grant to cover situations where the public domain dedication would be found legally invalid.


From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of Henrik Ingo
Sent: Monday, March 30, 2020 1:47 AM
To: License submissions for OSI review <license-review at lists.opensource.org>
Subject: Re: [License-review] Request for legacy approval: The Unlicense



On Sun, Mar 29, 2020 at 11:28 PM Richard Fontana <rfontana at redhat.com <mailto:rfontana at redhat.com> > wrote:

On Sun, Mar 29, 2020 at 1:02 PM Brendan Hickey
<brendan.m.hickey at gmail.com <mailto:brendan.m.hickey at gmail.com> > wrote:
> Unlicense should not be approved under any circumstance, regardless of popularity.  The public domain dedication simply doesn't work. Some countries outside of the US (Germany?) don't recognize these grants. CC0 anticipates jurisdictional issues and contains a fallback grant of rights. Without this, no one can actually rely on Unlicense.
> I wish this wasn't the case, but Unlicense is a great example of why we should listen to specialist attorneys on licensing matters.

I'm going to take out my "specialist attorney on licensing matters"
card (as much as it pains me to do so) and say I support granting
legacy approval for the Unlicense. I wouldn't necessarily support
approval for the regular (non-legacy) category, which arguably entails
a more stringent form of review based on various criteria. The wide
use of the Unlicense, and the full consistency of its terms with the
OSD and traditional understandings of software freedom (the latter
encompassed all sorts of more rudimentary and informal public domain
dedication language, appearing throughout present-day corpora
recognized by just about everyone as open source, it should be noted)
ought to be enough.




It would be interesting if the European lawyers on this list could also play their specialists cards in support of this view.


My very layman expectation here is that even if there isn't an exact counterpart to a public domain dedication in Finland, a court would nevertheless do its best to interpret the license as intended by its author.


Also, I don't think it's correct to say that a public domain doesn't exist outside US. We also have a time limit on copyright (e.g. 70 years after author's death) after which the work is no longer copyrighted. (The phrase "public domain" doesn't exist in Finnish as such though.) Certain types of works may never have copyright protection like maybe government works and certainly sports events, etc. So as a concept the end goal of licenses like this one is well defined, even if it may be unclear how an author could actively reach that end goal while still alive.





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