[cc-fr] Fwd: Dutch Court upholds Creative Commons license

melanie dulong de rosnay melanie.dulong-de-rosnay at cersa.org
Tue Mar 14 12:46:15 EST 2006


Voici le compte-rendu de la décision d'un tribunal d'Amsterdam : un  
magazine n'a pas le droit de reproduire des photos publiées sous  
contrat Creative Commons BY-NC-SA sans l'autorisation de l'auteur.

Dutch Court upholds Creative Commons license

Photographs made available on flickr.com under a Creative Commons  
Attribution-Noncommercial-Sharealike license may not be reproduced in  
a weekly magazine without the author’s permission.

On March 9, 2006 the District Court of Amsterdam, judging in summary  
proceedings, decided the first court case in the Netherlands  
involving the validity of a Creative Commons license. Local media  
celebrity Adam Curry (see http://curry.podshow.com/?p=49) had  
published photo’s of his family on www.flickr.com under a Creative  
Commons Attribution-Noncommercial-Sharealike license. The photos also  
carried the notice ‘This photo is public’. The Dutch weekly Weekend,  
a gossip magazine, had reproduced four photos in a story on Curry’s  
children without seeking Curry’s prior permission.

Curry sued Weekend for copyright and privacy infringement. As to the  
copyright claim, Weekend argued that it was misled by the notice  
‘this photo is public’, and that the link to the CC license was not  
obvious. Audax, the publisher of Weekend, alleged that it was  
informed of the existence of the CC license only much later by its  
legal counsel. In sum, Weekend had assumed in good faith that no  
authorization from Curry was needed. Moreover, Curry had not incurred  
any damages by the publication of the photos in Weekend, since the  
photos were freely available to the public on flickr.

The Court rejected Weekend’s defense, and held as follows:

“All four photos that were taken from www.flickr.com were made by  
Curry and posted by him on that website. In principle, Curry owns the  
copyright in the four photos, and the photos, by posting them on that  
website, are subject to the [Creative Commons] License. Therefore  
Audax should observe the conditions that control the use by third  
parties of the photos as stated in the License. The Court understands  
that Audax was misled by the notice ‘This photo is public’ (and  
therefore did not take note of the conditions of the License).  
However, it may be expected from a professional party like Audax that  
it conduct a thorough and precise examination before publishing in  
Weekend photos originating from the internet. Had it conducted such  
an investigation, Audax would have clicked on the symbol  
accompyinying the notice ‘some rights reserved’ and encountered the  
(short version of) the License. In case of doubt as to the  
applicability and the contents of the License, it should have  
requested authorization for publication from the copyright holder of  
the photos (Curry). Audax has failed to perform such a detailed  
investigation, and has assumed too easily thet publication of the  
photos was allowed. Audax has not observed the conditions stated in  
the License […]. The claim […] will therefore be allowed; defendants  
will be enjoined from publishing all photos that [Curry] has  
published on www.flickr.com, unless this occurs in accordance with  
the conditions of the License.”

The Dutch Court’s decision is especially noteworthy because it  
confirms that the conditions of a Creative Commons license  
automatically apply to the content licensed under it, and bind users  
of such content even without expressly agreeing to, or having  
knowledge of, the conditions of the license.

The full text of the decision (in Dutch) is available at http:// 

Bernt Hugenholtz

P. Bernt Hugenholtz
Institute for Information Law
University of Amsterdam
Rokin 84
NL-1012 KX  Amsterdam
The Netherlands
hugenholtz at ivir.nl
tel +31-20-5253925
fax +31-20-5253033
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