Digital Licensing, Clicking “I Agree”, E-Book & iPad Licensing

The Meaning of License

According to Black’s Law Dictionary, a “license” is “The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, or a tort.”  Also, “Permission to do something which without the license would not be allowable.”  It is that license which allows us to download an e-book onto our e-book reader, upload computer software, and legally obtain music online.  In fact, with digital content, licensing has become an integral part of our access to, and use of, informational, educational, and entertainment content.  And yet the meaning of a license is still not understood by all.  It continues to be confused with an assignment or transfer of rights as opposed to a “mere permission” to use content under specified or agreed upon terms and conditions.

How Licensing Works

So how does licensing work in the digital world?  In a nutshell, if you want to post an image on your blog, you must first obtain permission to use that image.  You will likely obtain a nonexclusive license to use the image, meaning others may also simultaneously post the image on their site or otherwise use the image.  You do not obtain any ownership in that image; ownership is not transferred in an exclusive or nonexclusive license.  Ownership of the image or any copyright-protected work is only transferred through a written assignment of the copyright.  For permission, you will likely be asked to pay a fee (sometimes called a royalty), and your use will be subject to specified terms and conditions.  For example, you may have the right to post the image for 6 months.  You may not be able to modify the image.  These terms may be set out in a written document such as a letter of agreement or license or contract.

Each licensing situation is unique. Although model or standard licenses may seem like the answer to avoid costly and time-draining negotiations, you must always look at your own particular situation and find an arrangement that is suitable to your needs.  Your best licensing arrangements will derive from an educated licensor (owner of content) and licensee (user of content) who are amicable in finding an arrangement, perhaps with some compromises, that works for both of them.

Above is an extract from the editorial from The Copyright & New Media Law Newsletter, Volume 2011, Issue 2. Table of Contents for this issue:

Editorial: The Meaning of License and How Licensing Works by Lesley Ellen Harris

Before You Click “I Agree” by Lesley Ellen Harris

Is Your Publishing Contract Enhanced E-Book & iPad Ready? by Lloyd J. Jassin

A Perspective on Collective Licensing in the Future by Lesley Ellen Harris

Reviews – Print (Copyright, Contracts, Creators by Giuseppina D’Agostino)

Online Licensing Resources (a recommended list)

Questions & Answers

More info. Subscribe.

One Comment

  1. Alison says:

    This is a great read. I am probably one of the few people that at least skim over contracts and licenses, except when they are so lengthy or confusing that I’d rather do anything else. I do find that more and more companies are asking for rights so far reaching for anything that can happen in the future to cover their butts. Honestly, it makes sense from their standpoint since the world of copyright and uses are changing from print to digital etc.

    I had a license come in for a request for use of a textbook of ours that may appear in a television show and they wanted “…rights in perpetuity throughout the universe for material owned by us and any third party materials”. Needless to say I changed their entire agreement so it was fair to both parties and even went so far as to ensure they had permission for the cover image as well as the third party materials that were on the page they wanted to show.

    I think most people have a tendency to click “I accept” without reading a word of licensing agreements to places where everyone else uses the products such as iTunes/Microsoft/Adobe and even Google+ (I do know of some photographers who are screaming about this particular TOS) etc etc assuming that since everyone else thinks it’s ok, I should too “click”. I believe that Lesley’s conclusions to this article would be a great addition for companies to add to their terms of use. Maybe someone would pause if the summary to all the rights you are agreeing to said “whatever you write, post, download etc is now ours and we can do whatever we want with it, forever”

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