Creative Commons - Belgium

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

Dear Yorick,

Yorick Cool wrote:
> Dear Hannelore,
>
> to me, the key problem in the Contract vs License problem is that of 
> reliability. In belgian law, without a contract, you owe nothing to 
> noone. Especially, a licensor has all opportunity to change his mind and 
> stop allowing use/modification/distribution of his software. Nothing 
> guarantees a user against such a change of mind on the licensor's behalf 
> except a contract.

I agree with you here, though art. 7 b) seems to say that the Licensor 
cannot withdraw the license.  He can stop distributing in the future, 
but the works that are already 'in the wild' cannot be called back so to 
speak.

> What's more, the absence of any "consideration doctrine" in belgian law 
> makes it easy to satisfy the condition of formation of a contract. 
> Hence, there is no practical obstacle as to treating an open-source 
> license as a contract.
>
> In the end, we also have to admit that "license" doesn't mean much in 
> belgian legal speak.

Maybe, but I see it as a unilateral act of the Licensor giving 
permission to 'violate' his copyright monopoly.
In practice it hardly makes a difference.

> I am also quite surprised about your remarks about Larry Rosen. He 
> explicitly advocates the "contractual" theory: "Open-source licenses 
> should be clean well written contracts, or they may not be enforced by 
> the courts" L. Rosen, open source licensing, Prentice Hall, p. 140. He 
> does say the GPL is probably not a contract, but concludes it is the 
> only one to be in that situation. I also have a gripes with his 
> conclusion the GPL is not a contract, but this is not the place to 
> discuss that ;-) (I will hint that to me, copyleft gives consideration 
> to the contract)

My mistake, I meant Eben Moglen.  Sorry about that.
http://www.groklaw.net/article.php?story=20031214210634851

I guess we agree that it is to a large extent an academic discussion in 
Belgian law.

Do you think my suggestion to not use the term 'contract' in the Belgian 
CCPL is not necessary?
I still think it might be a good idea, even if it is only to translate 
the original text as closely as possible.

Best regards,

Hannelore