Creative Commons Licenses Case Law CERDI July

Creative Commons Licenses Case Law CERDI | July 2012 | Paris Amélie de Francquen Teaching 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 Commercial use OK BY SA Derivative works OK No sharing of the conditions BY SA BY ND ND Licenses NC ND + CC 0 BY NC SA Derivative works OK No sharing of the conditions BY NC SA BY NC ND = "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 Civ. Nivelles, October 26, 2010, 09 -1684 -A The band Lichôdmapwa Theatre festival of Spa

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

Thank you for your attention. Amélie de Francquen amelie. defrancquen@fundp. ac. be