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Preamble

There are two other questions, specifically related to Licensing and Copyright.

In reviewing the answers and comments, I get the feeling that people generally consider the two to be the roughly same thing. If this is true, why do we worry about both?

It seems to me that they are very different things:

For copyright

  • It exists, without me doing anything to assert it, from the moment of creation.
  • Unless explicitly assigned, or surrendered, it persists regardless of licence chosen for the software.
  • It grants the creator very specific legal rights and remedies (although, these may vary by jurisdiction).
  • Most forms of copyright have a defined duration (usually life + 'n' years).
  • In an open source project, every contributor retains copyright in their own contributions.

For the Licence

  • It is a legal document
  • I have to explicitly choose, or create, the license. It does not apply automatically.
  • It grants users of the software specific, and limited, rights.
  • Unless stated in the Licence itself, or until it is revoked, it remains enforceable in perpetuity.

Question

Are they aspects of the same thing, or do they actually serve two different populations (producers and consumers)?

  • 3
    This sounds like a legal document. Preamble... Oh dear... :/ But excellent question. :) – Zizouz212 Jun 24 '15 at 21:41
  • Nah, a preamble is a series of zeroes and ones to pump up the charge in the receiving radio :) – kdopen Jun 24 '15 at 22:33
  • With most licenses, you don't enforce the license, you enforce the copyright. That one has a license is a defense to an accusation of copyright infringement. (EULAs and shrink wraps are exceptions. But this applies to true licenses like the GPL, the Apache license, and so on.) – David Schwartz Feb 21 at 22:05
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Copyright is the legal term used to declare and prove who owns the intellectual property (the code, text, etc.).

Licensing is the legal term used to describe the terms under which people are allowed to use the copyrighted material.

You can think of it in terms of physical property, if you want, the copyright is like the "deed" to a house. It says you own the house. If you want, you can rent the house out to someone, and that rental agreement is the 'license'.

Copyright is different to a "deed" in that it is possible to license the material in different ways, to different people, all at the same time.

Like a "deed", though, you can sell ownership of the code to someone else, and that would be called a copyright transfer.

Only the copyright owner (or their agent) can enter in to a license agreement.

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A notable exception to your "every contributor retains copyright in their own contributions":

Many large projects use a Contributor License Agreement that specifies that copyright for contributed code is transferred from the code's author to the project/organization.

  • Yep. I was thinking of that with the "Unless explicitly assigned, or surrendered," point under copyright, – kdopen Jun 24 '15 at 22:30
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Copyright

Copyright is personal property.

It can be bought and sold like any other property – a house, a car, a pen.

The difference with copyright and other personal property is that it’s intangible.

Houses (and the land they are on) are a type of property named “real property”.

Basically, real property is the land. The house is “attached” to the land (by being built on it) and therefore for legal purposes becomes part of the land. The house is inseparable from the land.

Cars and pens are choses in possession, or chattels.

They are things you can touch, pickup and hold, which aren’t land or things affixed to land, like houses.

Intellectual property rights are intangible rights. You can’t touch them. They’re incorporeal rights, although it’s not fashionable to call them that.

More technically, copyright along with the other intellectual property rights are choses in action.

As choses in action they’re like a debt: they can only be enforced by legal proceedings. They’re a legal fiction: they only exist in law, unlike your pen or house.

Example

As you know, copyright protects source code. It also protects the written word in books.

When you walk into a bookstore and buy a book, you’re buying the printing copy of the book. You’re not buying the copyright in the book.

Buying the copyright in a book means that you are able to exercise the exclusive rights of the copyright owner of the written word in the book. In this context, that means:

  • copy the book;
  • authorise others to copy the book.

Source code is protected in the precisely the same way as books.

That’s because the written words in books are the same type of copyright work as source code: literary works.

To put it another way, the written words which make up the source code is the form of a work protected by copyright: a literary work.

Like all intellectual property rights, copyright vests in the work itself to protect it.

You might imagine the book or the source code soaked (like a sponge soaks up water) in copyright.

That would mean:

  1. for so long as copyright subsists in the source code, it is soaked in intellectual property rights;
  2. when the term of copyright protection expires (think 70+ years from the time it is created), the source code is no longer soaked in copyright.

At that point in time, the source code is no longer soaked in copyright and it's no longer protected by copyright. Anyone can:

  • copy it,
  • issue copies of it to the public,
  • rent copies to the public,
  • make copies available to the public;
  • edit it, and/or
  • give permission to others to perform the acts above in respect of the copyright work.

You've probably heard some of those terms in the context of copyright, or similar terms.

They're some of the exclusive rights of the copyright owner: the rights which the copyright owner gets as a result of ownership of the copyright.

Licenses

A licence is a grant of a permission.

They can be:

  • granted verbally;
  • granted in writing;
  • implied by law; and/or
  • supported by contractual consideration or not;
  • exclusive, non-exclusively or sole

The owner of copyright is the owner of the exclusive rights granted by copyright (some which are listed above).

Let’s say I own some land. I can give permission to somebody or lots of people to:

  • enter onto the land. I can specify the time of day they can enter onto the land
  • the time by which they must leave
  • what they need to wear (or not) when they enter into the land.
  • limit which parts of the land they can go to.

Same with copyright works (ie literary works, artistic works et al), such as literary works that I own. I can carve up the permissions however I like as copyright owner.

The maximum length of a licence to use a copyright work – if it’s written properly - will only last for the term of copyright, and no longer.

So after all of that, the answer to your question is that:

  1. they are aspects of the same thing; and
  2. they serve two different populations or markets:

    a. copyright owners; and

    b. people that want to use the copyright work, ie licensees.

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