creative commons licenses case law cerdi | july 2012 | paris amélie de francquen teaching assistant...
TRANSCRIPT
Creative Commons LicensesCase Law
CERDI | July 2012 | Paris
Amélie de FrancquenTeaching assistant at the University of Namur
Attorney-at-Law at the Brussels Bar
Reminder
www.creativecommons.org–Find works–Choose a license for your work
COPYRIGHT : all rights reserved
COPYLEFT : some rights reserved
… which rights are reserved ?
4 conditions
BY : Attribution: name of the author Always
NC : Non commercial: no commercial use
ND : No derivative works
SA : Share Alike: Derivative works must be used under the same conditions (same or similar license)
4 conditions – 6 licenses
= "No Rights Reserved”, Public Domain Dedication: Waive all rights to the fullest extent allowed by law
Spain– 2005, November : SGAE v. Luis (music)
– Music performed in a bar. The bar owner argued that he only played CC music– SGAE offered evidence that he also played part of its music catalogue
– 2006, February : SGAE v. Fernandez (music)– Music performed in a bar was licensed under CC licenses. Bar owner of the bar
did not pay the SGAE during 3 years– Court rejected the collecting society’s claims because the bar owner proved
that the music he was using was not managed by the society
The Netherlands– 2006, March 9 : Curry v. Audax (BY NC, picture from Flickr)
– Adam Curry (media personality) sued a tabloid which published photos without permission from his Flickr page
– Curry won the case, Audax must respect the terms of the license. If Audax repeat the offence: penalty payment of 1000 €/infringement
United States• 2009, January : Chang v. Virgin Mobile + CC (BY,
picture from Flickr)– Use by Virgin of a picture in an advertising campaign.
Virgin printed an URL leading to the photographer's Flickr page on each of its ads
– Action against CC for failing to warn creators that the licenses do not address privacy right
– Concerned personality rights rather than copyright, the case was dismissed by a Texas court for lack of jurisdiction
• 2010, February : Jacobsen v. Katzer (Artistic License, model train, software)– Company used the open source software in the
creation of its competing proprietary software– Court first judged that the open source copyright did
not support damages for copyright violation– Judgment was reversed by the court of appeal: such
copyrights were enforceable– Settled out of court
Germany– 2010 October, 12 : Gerlach vs. DVU (BY SA 3.0 Unported, picture)
– Photo used by a far-right party without attribution and notice of the license– The photographer won, there was a breach of the terms of the license
Israel
– 2011 January : Avi Re'uveni v. Mapa inc. (BY NC ND, picture on Flickr)
– Mapa made a collage from the photos and sold them without attribution
– Mapa claimed ignorance of the © and license, but the court said that it did not matter
– Court did not consider the license, but the outcome was the same as if it had taken the terms of the license into account
Belgium
The band Lichôdmapwa The Theatre festival of Spa
Civ. Nivelles, October 26, 2010, 09-1684-A
Work / Use
Original song downloaded on Dogmazic.com (BY NC ND, 2.5)
Reuse in an advertisement
415 x
Claims
• Principal claim– Compensation on the basis of the license
• Breach of the contract• Civil Code (art. 1147 and 1149)
• Alternatively– Infringement to copyright
• Objective/strict liability
• Compensation for damages– 10.380 EUR
Claims
• Principal claim– Compensation on the basis of the license
• Breach of the contract• Civil Code (art. 1147 and 1149)
• Alternatively– Infringement to copyright
• Objective/strict liability
• Compensation for damages– 10.380 EUR
Decision
• The license was infringed– The 3 conditions were infringed
• BY-NC-ND– Same compensation for the 3 conditions
• 3 x 1.500 EUR = 4.500 EUR• Ex aequo et bono• Answer to the claimant
– Higher than prices of the collecting societies (Sabam)– Higher than the proposition of the defendant (1.500 EUR)– Paradox : Non-commercial approach of the claimant /
commercial price and monetary compensation
Comments
• Courts rarely involved, why?– Authors of works under CC are more permissive
than collecting societies or right-holders?– Are the conditions clear enough?
• Recognition in judgments of the enforceability of the licenses :– More legal certainty– But, still questions…
Questions & remarks• NC use condition still unclear
– Use in a public television • non-profit profile, sponsored by the State, quid use between 2 ads?
– Use by a blogger• Quid blog full of ads?
• Use by the members of a collecting society?– France: January 2012 project Sacem – CC, during 18 months
• CC BY-NC; CC BY-NC-SA; CC BY-NC-ND• PIL : Choice of the judge + applicable law to the license• Accessibility of the conditions
– Defendant did not see the conditions• Adam Curry + Lichôdmapwa : Conditions automatically and bind users even
without expressly agreeing to the conditions of the license• …
