[cc-community] Not sure does cc apply to a copy or 'original' work
peter.brink at brinkdata.se
Mon Jun 2 10:16:05 EDT 2008
drew Roberts skrev:
> On Monday 02 June 2008 08:32:19 Peter Brink wrote:
>> 1995 the author A enters a contract with the publisher B and B later
>> publishes her book X. The contract only gives B the exclusive right to
>> publish printed copies of X, and B has not the right to sub-license X. B
>> does have the right to take legal actions against any infringements in
>> their publishing rights.
>> Ten years later, A licenses X under a CC-BY-NC-SA license, and
>> distributes X as a pdf-file. B cannot make use of the license since they
>> are bound by another contract with A.
> This does not follow. Sure B can use the new license. Nothing stops me from
> selling you one license now and one more to your liking later on.
B is bound by a contract with A which allows B to produce printed
copies. A and B must explicitly agree in order to alter their contract
before B can make use of the CC-license (for printed matter).
> However, I think the real problem here is that A is not legally allowed to put
> a cc license on X without violating the exclusive license deal made with B.
> A can craft up a custom license similar to a cc license which specifically
> excludes printed copies or negotiate with B to agree to the application of
> the cc license but cannot just apply a cc license to the work.
A could very well issue a license (since the previous agreement was
non-exclusive) on non-printed matter. A would be wise of course to
notify B about her intentions otherwise her behaviour could be seen as
>> The owners of the printed copies
>> have not received a license offer and B cannot make such an offer. A is
>> bound by a contract with B that prevents A from offering a license on
>> printed copies of X.
>> Now, Y comes along and copies a large quantity of the printed version of
>> X. Could B could sue Y for copyright infringement?
>> My solution:
>> Y would most likely try to defend himself by referring to the CC
>> license. However, A has reserved the right to issue other licenses, and
>> also implicitly informed her licensees that there might already exists
>> one or more such licenses. A cannot issue a license on printed copies
>> and one has to assume that by issuing the license on a electronic form
>> of the work she has taken reasonable steps to avoid violating her
>> agreement with B.
>> Since Y knows that the license is non-exclusive he cannot be in
>> good-faith about his rights to use a copy of the work that lacks a
>> license statement, and even more so when such copies pre-date copies
>> that carry a license statement. Y has therefore infringed on B:s copyright.
>> It's up to the licensee to make sure that copies of a work that does not
>> carry a license statement are not governed by another contractual
>> agreement. A licensee would therefore be wise not use any copy of a work
>> that has been licensed under a CC license that does not include a
>> license statement.
> Peter, I think this is an incorrect solution. I think it comes down to people
> still trying to make the non-exclusive license mean more than it does. (Or at
> least more than it needs to.) And also perhaps less than it does in another
> To me, non-exclusive means that I can put the work under other licenses and
> with other people or sub-sets of people. It also means I cannot offer an
> exclusive license to anyone which would interfere with the non-exclusive
> license I give. (And, if I have already given such an exclusive license, I
> cannot then put a non-exclusive cc license on the work.)
Exclusive and non-exclusive are fairly well defined legal terms.
"EXCLUSIVE, rights. Debarring one from participating in a thing. An
exclusive right or privilege, is one granted to a person to do a thing,
and forbidding all others to do the same. A patent right or copyright,
are of this kind."
An exclusive license is the same as a total transfer of all rights from
A to B.
A non-exclusive licence is a license in which A only grants some rights
(a partial grant) to B and reserves the right to grant others the same
rights or to grant others another set of rights.
All CC licenses are non-exclusive.
There is nothing (baring other existing agreements that she is bound by)
that restricts the licensor from issuing whatever other licenses she
It's really is up to the licensee to make sure that he can prove that he
has a license. The best evidence of a license is a license statement
attached to a copy of the licensed work.
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