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cc-licenses - Re: [cc-licenses] CC licenses and applicable law

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Subject: Development of Creative Commons licenses

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  • From: Gregor Hagedorn <g.m.hagedorn AT gmail.com>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] CC licenses and applicable law
  • Date: Wed, 18 Jan 2012 11:04:22 +0100

- This raises the question of how you determine applicable law. The basic rule for determining whether a copyright has been infringed is to apply the law of the country in which the unauthorized use occurred. For example, if a work created in Country A is infringed in Country B, the laws of Country B will typically decide questions such as whether the use falls within an exception or limitation to copyright, or whether the work is actually copyrightable subject matter.

I am not a lawyer, so please those with more precise expertise correct me. To me the problem of applicable law is that in collaborative online re-use scenarios, the countries where infringement occurs are many. Uploading or modifying a work is an infringement, unless the actor is a copyright holder or the action is exempted from copyright or is explicitly allowed by the  CC license. Similarly, only a license allows to view or read a work. Already writing certain information or taking a picture can be illegal in certain countries. Thus the laws that have to be observed by a collaborative project like en.wikipedia.org basically include the entire world. The lowest common denominator would apply.

Furthermore, jurisdiction can consider itself applicable for actions outside the country. As far as I know, both U.S. and German courts can declare themselves actionable if the rights of U.S. or German citizens are infringed and the violation can not be successfully addressed in the country of the infringer. The possible actions are limited, of course, but in a case of a non-pirate, non-illegal entity like the Wikimedia foundation, are not negligable. WMF is recognizing this and, for example, is removing works from German Wikipedia based on the application of German court orders, despite the fact that is has no legal residence in Germany and that none of the applicable technical publishing infrastructure is based in Germany.

My point is to clarify in CC licenses as much as possible to avoid future headaches. This does not need to less freedom of re-use. All clarifications can be prefixed by a clause: "Unless more re-use rights are granted to you under locally applicable copyright law, the following will apply:" (or a  legally more appropriate equivalent of such).

Gregor


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