Creative Commons - Belgium

[Yorick Cool <yorick.cool AT fundp.ac.be>]

Hannelore has adequately answered most of the issues here, but I shall 
further some of her comments below. I have omitted some parts when I had 
nothing to add to Hannelore's comments.

Hannelore Dekeyser wrote:
>     
>
> Wouter Vanden hove wrote:
>
> > Yorick Cool wrote:

> > > In belgian law, without a contract, you owe nothing to noone. 
> >
> >
> >
> > Due to the default copyright law and the Berne Convention
> > a user of a copyrighted work owes permission to the author.
> >
> > You need written permission from an author to distribute a work. A 
> > license is that written permission.
> Yes, but the author doesn't owe the user anything.  That was what Yorick 
> meant, I think.

Absolutely. Most glaringly, the author can change his mind on day X and 
sue for breach of copyrigt on day X+1, regardless of the license he 
conceded. In belgian law, without a contract you have every right to 
change your mind and CANNOT suscribe a so-called "irrevocable" 
obligation. I see Wouter has read Eben Moglen, which is very good, but 
one must hold in mind that
a) Eben Moglen has an agenda of his own
b) His analysises, however right or wrong in american law, are 
inapplicable to belgian law. There simply is no such thing  as a binding 
obligation that does not stem from either the law or a contract in 
belgian law. Hence, the impossibility to enforce the license against the 
licensor if it is not a contract. No matter what clause is in the 
license, if the license is not a contract, it is retractable by the 
licensor at will (except for blatant bad faith or what will you, but 
such doctrines are less potent than promissory estoppel for example).

> > > What's more, the absence of any "consideration doctrine" in belgian 
> > > law makes it easy to satisfy the condition of formation of a contract. 
> >
> >
> > Can you explain "consideration doctrine"?
> > I am not a lawyer. :)
> This is an American doctrine, and doesn't apply in Belgian law.
> Roughly it means that both parties must get *something* out of a 
> contract, otherwise it isn't valid.
> So, if A gives you a car but doesn't get anything in return, the deal is 
>  not a contract.  How this applies to CCPL is under debate.

In my humble opinion, the "copyleft", i.e. the fact that derivatives can 
be made available, but only under an identical licence is consideration 
enough. Considering that case-law has accepted a mere moral interest as 
consideration enough, I'd say the simple interest the licensor has in 
having the opportunity to benefit from enhancements of his works give 
him good consideration. This is of course debatable. The (potential) 
absence of consideration is one of the reasons the FSF pushes against 
the qualification of contract. As Hannelore very well pointed out, there 
is no such problem in belgian law.

Best regards,

Yorick