In recent years, the roleplaying games publisher Wizards of the Coast (WotC) has made the core framework of its popular Dungeons & Dragons RPG (D&D) widely available to other game makers as part of an expansive, royalty-free open license called their “Open Gaming License” (OGL). The original OGL (version 1.0.a) was created in 2000 to provide guidance to creators on what parts of the Dungeons and Dragons system were available for use and which were off-limits in their own creative works. This included rules and mechanics, which can be difficult to copyright anyway, but also excluded certain materials such as trade marked signs and copyrighted artwork.
The OGL has been a crucial tool for the growth and development of the role-playing game industry, allowing independent creators to produce their own products and campaigns, leading to a thriving ecosystem of D&D content. WotC hoped to benefit from other creators feeding into that ecosystem, increasing the number of people who would be exposed to D&D and then hopefully buy WotC products directly.
In recent weeks, there has been a large controversy in the gaming world due to a leaked update to the OGL. The new terms required that companies using WotC’s works would have to register with the company, report any revenue of over $50,000 that came from those works, and pay a royalty of 25% on any revenues over $750,000. Further, the leaked version seemed to revoke the first, despite the first granting a ‘perpetual, worldwide, royalty-free, non-exclusive license’ to users. The new version also clarified that WotC could use works created by others in any way it sees fit without payment.
This leak caused significant discussion, with many creators and fans expressing disappointment and frustration with the new terms. The breadth of this protest lead to WotC backtracking on the changes, and clarifying how they would be moving forward with any changes.
An open license (sometimes called a public licence) isn’t a defined term in UK law. It is just a type of licence that allows creators to use, distribute, and build upon certain elements of a protected work by without negotiating permission from the intellectual property right holder.
Right holders sometimes issue open licenses for altruistic reasons. They may want to increase access to the protected work, or see the work being openly available as a way to give back to their community and enable innovation.
In a commercial context, they tend to be used because the creator of a work sees a larger benefit in distributing their creations freely than they would gain by negotiating individual licenses, or protecting the material against use. Open licences tend to be more permissive than negotiated licence agreements in allowing derivative works to be created from the underlying material. Therefore, they usually allow users to build upon and create new things from protected work, leading to innovation and new ideas. They can also create a sense of community and collaboration around the creator's copyrighted work, which can lead to increased loyalty and support from consumers. This can be especially beneficial for businesses looking to expand their offerings or enter into new markets.
But, open licences do have some downsides. They can lead to the dilution of creative content or the loss of control over how the copyrighted work is used. This can be a significant concern for creators that are looking to protect their intellectual property and maintain their reputation in the market despite the benefits an open license could bring. It can also be a worry that once an open licence is issued, it can be hard for the issuer to change its terms without legal or public relations issues as is the case with WotC.
As a business looking to use a creator’s open licence, the costs and benefits need to be balanced. They can provide flexibility, as open licenses often come with guidelines but not strict rules, giving the business a chance to use the work in different ways. They also tend to be cost effective, as their use is often free and so development can be less resource intensive. And, they often provide access to high quality resources that the business would otherwise be unable to develop itself.
However, they can be complex, and may not provide the same level of protection as traditional licensing agreements. They usually exclude all or most warranties that might be included in licence agreements, meaning that businesses using the open licence may not have legal recourse if they experience problems with the underlying work. They also do not tend to grant permission to use other types of intellectual property rights, such as trade marks. So, businesses should check if the work they want to use is subject to any other rights that would stop its use despite the open license.
Crucially, for businesses looking to use material commercially, open access or ‘open source’ licences may also restrict onward commercial use or developed works on a similar basis so that derivative works cannot be fully monetised.
As can be seen from the case of the proposed changes to the Dungeons and Dragons open license, a final worry is that businesses that have built their products around material under an open license may find that the issuer tries to change the rules in a way that fundamentally alters the user’s commercial position. An open license issuer could turn around and ask for royalties on works that have so-far been free to use. Or, the terms of that license may become more restrictive, affecting the products they have been offering for some time and banked on being able to produce going forward. While the outcry from the gaming community seems to have caused WotC to alter their plans, not every business using open licenses will be able to rely on the voice of the public to advocate for their continued free use of material.
