[cc-community] Not sure does cc apply to a copy or 'original' work

drew Roberts zotz at 100jamz.com
Mon Jun 2 11:11:39 EDT 2008


On Monday 02 June 2008 10:16, Peter Brink wrote:
> drew Roberts skrev:
> > On Monday 02 June 2008 08:32:19 Peter Brink wrote:
>
> [snip]
>
> >> Case:
> >> 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).

I don't agree with this, in fact, I think A needs B's permission before he can 
even use a cc license. But if he put's one on it without B's permission, B is 
certainly now free to use either license he chooses.
>
> > 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
> disloyal.

I disagree since the cc license covers all forms and he can't give a license 
on all forms due to his prior exclusive license with B.

A could certainly issue a license covering all but printed forms, but this 
would not be a cc license.
>
> >> 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.
> >>
> >> Comment:
> >> 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 way.
> >
> > 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.

Surely not. I can give an exclusive on some rights only. Or some rights only 
for some regions, etc. Exclusive surely doesn't equate to a transfer of 
copyright. Your language seems to imply this.
>
> 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.

Exactly.
>
> All CC licenses are non-exclusive.

Exactly.
>
> There is nothing (baring other existing agreements that she is bound by)
> that restricts the licensor from issuing whatever other licenses she
> sees fit.

This is the case in your example though. Since A has already given B the 
exclusive on print, A cannot now issue a cc license on the same work at all. 
This would conflict with the exclusive agreement that B already has.
>
> 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.
>
> /Peter Brink

all the best,

drew


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