[cc-licenses] CC licenses and applicable law

Gregor Hagedorn g.m.hagedorn at gmail.com
Wed Jan 18 05:04:22 EST 2012


>
> - 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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