Creative Commons - Belgium

[Hannelore Dekeyser <hannelore.dekeyser AT law.kuleuven.ac.be>]

Dear all,

I would like to ask some specific questions about the Belgian 
translation, specifically from a legal point of view.

I will split my questions into different posts, so we don't have to
discuss all of them in one thread.

First I want to note that I'm more familiar with the GPL than the CC,
but as they are closely related this should not be a problem. Some of my
questions stem from things I learned while studying the GPL.



Question 1. Contract vs. licence?

In the U.S. there is always discussion whether the open source licences
are contracts or not.
Lawrence Rosen stresses that it is a licence, not a contract.  The
reason is that copyright is regulated federally, while contract law is
regulated by the states.

Is a copyright licence always a contract in Belgian law?
Is this a purely academic question?

A user isn't allowed to reproduce/distribute a work without the authors'
permission.
The licence gives the user permission.  If he accepts the licence, a
contract is formed.
Otherwise there is no contract, but it makes little difference in the end.
The user can choose to rely on the licence to reproduce/distribute a
work or not to use it.
Alternatively he can rely on the exceptions allowed by copyright law,
which are much narrower than the CCPL licence.

So however you turn it, the author is in a comfortable position.  Or am
I missing something?

The contract vs. licence issue pops up in the second paragraph of the
licence (BE-CCPL: By using the work in a way covered by any rights
provided here...)
In the footnote you refer to the controverse concerning acceptation by
the mere use of the work.
This refers to the implicit conclusion of contracts, I assume.  This is
only problematic if a copyright license is by its nature a contract
in Belgian law.

The next sentence of this paragraph just means that it this is a
conditional contract/licence (CCPL+BE-CCPL: The licensor grants you the
rights contained here in consideration of your acceptance of such terms
and conditions.) It doesn't really matter which it is.


Wouldn't it be preferable not to use the term 'contract' in the Belgian
CCPL at all? This way, discussions whether a contract was formed or not,
are sidestepped.  The term 'contract' is not used in the original CCPL

The iCommons page mentions that they "strive for utmost similarity
between the licenses worldwide".
(http://creativecommons.org/worldwide/overview  )

The term contract is used in several places in the BE-CCPL.

In the subtitle:
Dutch: Licence  (licentie)
French: Licence agreement (Contrat de licence)
English: Legal code

Could the French term  'Contrat de licence' be changed to 'Licence'? Or
is that FrAnglais?

The English term 'legal code' is even more neutral with regard to the
discussion above, but it is a bit artificial.  'Juridische tekst' -
'texte juridique' / 'juridische bepalingen' - 'stipulations juridiques'
 could be used as a closer translation, but it doesn't say very much.


The term 'contract' also appears in the disclaimer, but only in the
english version.
"Distribution of this draft licence does not create any legal or
contractual relationship between the _contracting parties under this
licence_ and creative commons."
This could be replaced with "parties to this licence", conform to the
French and Dutch version.

I'm very curious to hear your views.

Kind regards,

Hannelore