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cc-be - Re: [Cc-be] Q1 Contract vs Licence

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Subject: Creative Commons - Belgium

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Chronological Thread  
  • From: Yorick Cool <yorick.cool AT fundp.ac.be>
  • To: Hannelore Dekeyser <hannelore.dekeyser AT law.kuleuven.ac.be>
  • Cc: cc-be AT lists.ibiblio.org
  • Subject: Re: [Cc-be] Q1 Contract vs Licence
  • Date: Mon, 22 Nov 2004 21:10:48 +0100

Hannelore has adequately answered most of the issues here, but I shall further some of her comments below. I have omitted some parts when I had nothing to add to Hannelore's comments.

Hannelore Dekeyser wrote:

Wouter Vanden hove wrote:

Yorick Cool wrote:

In belgian law, without a contract, you owe nothing to noone.



Due to the default copyright law and the Berne Convention
a user of a copyrighted work owes permission to the author.

You need written permission from an author to distribute a work. A license is that written permission.

Yes, but the author doesn't owe the user anything. That was what Yorick meant, I think.

Absolutely. Most glaringly, the author can change his mind on day X and sue for breach of copyrigt on day X+1, regardless of the license he conceded. In belgian law, without a contract you have every right to change your mind and CANNOT suscribe a so-called "irrevocable" obligation. I see Wouter has read Eben Moglen, which is very good, but one must hold in mind that
a) Eben Moglen has an agenda of his own
b) His analysises, however right or wrong in american law, are inapplicable to belgian law. There simply is no such thing as a binding obligation that does not stem from either the law or a contract in belgian law. Hence, the impossibility to enforce the license against the licensor if it is not a contract. No matter what clause is in the license, if the license is not a contract, it is retractable by the licensor at will (except for blatant bad faith or what will you, but such doctrines are less potent than promissory estoppel for example).

What's more, the absence of any "consideration doctrine" in belgian law makes it easy to satisfy the condition of formation of a contract.


Can you explain "consideration doctrine"?
I am not a lawyer. :)

This is an American doctrine, and doesn't apply in Belgian law.
Roughly it means that both parties must get *something* out of a contract, otherwise it isn't valid.
So, if A gives you a car but doesn't get anything in return, the deal is not a contract. How this applies to CCPL is under debate.

In my humble opinion, the "copyleft", i.e. the fact that derivatives can be made available, but only under an identical licence is consideration enough. Considering that case-law has accepted a mere moral interest as consideration enough, I'd say the simple interest the licensor has in having the opportunity to benefit from enhancements of his works give him good consideration. This is of course debatable. The (potential) absence of consideration is one of the reasons the FSF pushes against the qualification of contract. As Hannelore very well pointed out, there is no such problem in belgian law.

Best regards,

Yorick




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