[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sat Oct 7 09:25:32 EDT 2006


Henri Sivonen skrev:
> Considering that Free Software and Open Source has worked fine with  
> English-only licenses, that non-Americans are routinely using the  
> existing U.S./"Generic" CC licenses and that CC now has a "New  
> Generic" license draft that is designed to work globally, what's the  
> point of having ports of the 3.0 series instead of using the "New  
> Generic" with English as the governing language everywhere?
> 

There are several reasons why "localized" licenses is a must:

1) There may be formal requirements for copyright contracts (or indeed 
contracts as such) in certain jurisdictions (both France and Germany for 
example has such rules IRRC) that must be met or else the license fails 
to come into force.

2) Having a text in the local language, adapted for that jurisdiction 
will be immensely valuable if a court needs to analyze the license.

3) Creators will feel safer when using a license written in their own 
language.

4) It's necessary to be able to assure creators that the license is 
enforceable.

One could compare to how the European Union deals with the problem of 
harmonizing rules across many jurisdictions. Resolutions (which are 
directly binding legal instruments) and directives (which are binding 
legal instruments that must be implemented nationally) are written in 
French, translated to German and then to English. All the other 23 
translations are based on those three versions. The CC licenses is 
probably best compared to a directive. A directive sets up the legal 
rules (and the results of those rules) that a member state's legislator 
must implement. How that is done is however up tho each member state.

The generic CC-license detail the legal effects (or results) that the 
license should have, it is the task of the national CC-groups to 
implement this using a legal language that creates the same effects (at 
as close as possible) as the generic license. As long as the generic 
license is based on U.S. law the differences btw the generic license and 
the will by necessity be fairly large. These differences will become 
smaller with the new 3.0 license, but (as I wrote above) there will 
still be many reasons why we will need to implement the generic license 
  nationally.

A major difference btw CC and the EU is of course that CC lacks any 
ability to enforce its own interpretation of the license. Disputes about 
how the implementation(s) of a EU resolution or directive has been 
carried out or about how to understand the rules of a directive or 
regulation are arbitrated by the the Court of Justice and the Court of 
First Instance of the European Communities. It's btw a serious mistake 
to think that CC's opinion on how the license works would have any 
impact on how court would interpret the license. It's the parties 
opinions that matters.

In fact the entire Open Source is based on the illusion that the GPL 
would work the same way in the U.S. and (for example Sweden) - it won't. 
One *must* have "localized" license that implements a common set of 
effects to be able to, with any kind of certainty, assure creators that 
WYSIWYG, i.e. that they can trust the license.

/Peter Brink




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