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["Roland Honekamp" <roland AT creativecommons.org>]

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Talk given at the Wissenschaftskolleg, Berlin, June 17, 2004

Free Content Licenses under German Law

Axel Metzger
Dr. iur. (Munich and Paris), Max-Planck-Institute for Foreign Private
and Private International Law, Hamburg. Director of the Institute for
Legal Aspects of Free and Open Source – 
http://www.ifross.org

Ladies and Gentlemen,

It is a great pleasure for me to be here today and to have the chance to
present you some thoughts on the current situation of Free Content as a
license model.
 
Today’s workshop is my first direct contact with the Open Access
movement. It was a big surprise to me to read last October the good news
on the Berlin Declaration. I should like to express my warm
congratulations to Professor Renn for the coalition he could unify under
this declaration. I am very interested to hear today something about the
future plans

I have been invited to say some words about the legal situation of Free
Content licenses in Germany. I am no policy maker but a lawyer.
Therefore my task in the next 30 minutes should be to give a first
survey of problems and perspectives of Free Content licenses under
German law. I hope that this focus meets also the interests of the Open
Access delegates in the workshop. I presume that one of the next steps
for you must be to choose one or more of the already existing licenses
for your movement or to create an own Open Access license. 

With regard to Lawrence Lessig , it’s my second chance to meet him. We
were both invited as speakers to a conference at the Evangelische
Akademie Tutzing in June 2000. I couldn’t stay till the end of
conference and therefore unfortunately missed Lawrence. 

At the time, “open content” was nothing but a future perspective. Only a
small number of visionary scholars talked about “experiments”, “tries”
to develop licenses, comparable to Free Software Licenses, for texts,
databases, music, in one word for content, not software. 
The broader public woke up when Lawrence Lessig started in the beginning
of 2002 the Creative Commons project. Since then the phenomenon of Open
Content has grown from month to month. 

Although the Open Content movement did not give birth yet to a project
as successful as GNU/Linux, one can say that the content movement has
overtaken the software movement in some disciplines. For me, as a
lawyer, the most important aspect is the internationalization of the
licenses. Creative Commons started some months ago the iCommons project,
which I very much enjoy to be part of. The aim of iCommons is to create
a multinational model of licenses. The German license versions were
presented to the public last Friday. 

This project is of great importance because Open Source Software and
Open Content are created and used by communities spread all over the
world. Take GNU/Linux as a paradigm: The project was started in the
U.S., later the Finnish student Linus Torvalds wrote the kernel for the
operating system. Today a worldwide community is working on the project.
However, the underlying license, the GNU General Public License,
remained the same – as if nothing had happened. 

Although it is now five years that we are trying to convince the Free
Software Foundation to rise to the challenge and develop an
international licensing model, they did not even begin to work on the
project – as far as I know. By contrast, Creative Commons did just that. 

Internationalizing the licenses is necessary because some problems
arising under German law can be solved only by having recourse to a
German version of the license. I will present you in what follows a
summary of these legal problems. Not of all them can be solved by the
Free Software and Free Content movement. For some problems the lawgiver
must help. Hence, I’m very glad that Ms Pakuscher from the Federal
Ministry of Justice is here today to discuss these issues with us.  

There can be no doubt that Creative Commons has assumed the role of an
icebreaker for Open Content during the past years. However, today you
can see in the channel created by the icebreaker some other licenses for
free content. You can find a collection of those on our website
ifross.org (there are at least 33 licenses). I cannot present all of
them today, but I will discuss two of them. One is the Creative Commons
license “Attribution – NonCommercial – ShareAlike 2.0” and the draft of
its German equivalent “Namensnennung – Nicht-kommerziell – Weitergabe
unter gleichen Bedingungen 2.0”.  

A second license model I would like to bring to your attention is a
license drafted by Till Jaeger and myself for the NRW Ministry of
Science and Research. It’s the Digital Peer Publishing License. I am
very sorry for not having an English translation ready. I will explain
the most interesting clauses however during this talk. 

Ms Christiane Dusch, responsible for the project at the Ministry, didn’t
ask us to write a License for Open Content. Rather, the Ministry wants
us to create a technical and legal environment for researchers willing
to establish e-journals, i.e. solely electronically distributed
scientific journals.  Therefore, the basic license does not provide for
the right to modify the content. Another important restriction concerns
distribution in print: the project’s aim is to promote e-journals; thus
users may distribute the content electronically – but not in the form 
of paper-based copies. 

In the final analysis, this license can be said to be module of a
license family of three members. The two other licenses will give more
rights to the users, but we are not yet sure if we should make one
license really free (free as in the sense of Free Software). These
licenses could also take good care of the needs of the Open Access
movement. We are still discussing these issues and hope to be inspired
by our discussion today.

I will not go into the details of the licenses and explain each and
every single word. Instead, I would like to focus on the legal problems
of these licenses under German substantive law and private international
law. I will first give a survey of legal problems under German law and
ask why internationalizing the licenses makes sense from a German
perspective. As a second step, I shall add a few remarks concerning
German and European PIL and the legal techniques that could be used to
internationalize the license models. 






I. Legal problems of Free Content licenses – German Perspectives

What are these problems under German substantive law?

1. 
One problem concerns the language of the license as such.

Under German law, no provision states that contracts in general have to
use German. 

Therefore, it might be interesting for you to learn that the Munich
Court of Appeals ruled last month for the first time in Germany, and
perhaps worldwide, that the GNU General Public License is a generally
valid standard term (although it is only legally binding in its English
version).
In this case, both parties to the contract were businessmen, and
unfortunately, I am unable to present you a court decision on Free
Content and Software licenses in the context of consumer contracts. For
consumer contracts, section 305 paragraph 2 of the German Civil Code has
to be applied. Under this provision, consumers must have a reasonable
chance to understand the standard terms.
As a consequence, German courts rule that standard terms must appear in
German in order to be valid in consumer contracts. Only in very
exceptional cases, e.g. when the consumer negotiated the contract in a
foreign language in the first place, standard terms in a language other
than German may be allowed. 
Whether one can make such an exception for Free Software and Content
licenses is not yet clear. I have pleaded for this since five years, but
there are also scholars, some of them professors, saying that such an
exception would not be possible.  

Section 305 paragraph 2 is the German implementation of the
“transparency requirements” of European Directive 93/13/EEC of 5 April
1993 on unfair terms in consumer contracts (article 5 and recital 20).
Hence, we shouldn’t be surprised to find similar problems in other
member states of the European Union. 

The French situation seems to be even worse. France has a made a lot of
efforts during recent years to foster the international role of the
French language. We can all recall the notorious Loi Toubon, the “Law
No. 94-665 of 4 August 1994 relating to the use of the French language”.
See article 2:

The use of French shall be mandatory for the designation, offer,
presentation, instructions for use, and description of the scope and
conditions of a warranty of goods, products and services. 

The scope of this rule later was restricted in a governmental order of
March 1996. Software licenses still seem to be within the remit of that
law. The aim of the law is to protect not only the consumer but each and
every end-user. Moreover the law provides for penal sanctions. It is
thus conceivable that a contract in English falling under the scope of
this law would not be legally binding in France.

It would be very interesting to have a study on French contract law
written by a specialist to get a realistic idea about these problems. 
For today’s discussion these remarks must however suffice. 

I conclude: 

To prevent a situation of legal uncertainty, Free Content licenses have
to develop legally binding license versions in German, French and maybe
in other languages. 

This, I take it, is the first reason why we should seriously consider
internationalizing the licenses.







 2.
A second important concern deals with the freedom to modify the work
(i.e. to create derivative works).

This right of the user can be found in Section 3 b) of the CC-license
“Attribution – NonCommercial – ShareAlike 2.0”.

The Freedom to modify the work might conflict with the moral rights of
the author. The right of the author of a copyrighted work to object to
any derogatory treatment of his work is known to all member states of
the Berne Convention. 

So, why does the freedom to modify the work pose legal problems in
Germany and not in the U.S., although both are members of the Berne
Union?

I have here 

Article 6bis
(1) Independently of the author's economic rights, the author shall have
the right to claim authorship of the work and to object to any
distortion, mutilation or other modification of, or other derogatory
action in relation to, the said work, which would be prejudicial to his
honor or reputation. 

The answer is that German law, like other droit d’auteur-systems, does
not accept a global waiver of moral rights. Even the more liberal court
decisions and scholars accept assignments only under the provision that
the changes are specified. The author must have a real chance to foresee
the changes that are to be made. Otherwise the waiver is invalid. 

English and U.S. law do not know this restriction on the freedom of
contract. Here, a global waiver on moral rights is perfectly valid.
Therefore I can understand that it is not familiar to English and
American lawyers to deal with this provision. However, here we have to
respect it. 

Before this background it is clear that the German CC license must
provide a reservation for moral rights. See section 4 paragraph e)
German CC license. 

The DPPL license does not allow modifications of the work. But, the
future modules 2 and 3 probably will provide this freedom - and also
make a reservation for the author’s moral rights. 

What would be the consequence if the licenses would not provide for such
a reservation? The result would be, under German Law on standard terms,
that the whole clause would be invalid. Distribution of derivative works
would be impossible. 

Therefore, it’s absolutely necessary that Free Content licenses respect
the moral rights provisions of the droit d’auteur-states. 

Hence, here we have a second reason why internationalization is needed.

3. 
There is a third point I would like to bring to your attention, and this
is the issue of warranties and liabilities. 

Normally Free Content licenses exempt the licensor from any warranty and
liability. Take, as an example, sections 5 and 6 of the original
CC-license. 

These disclaimers are invalid under German law – irrespective whether
licensee is a consumer or not. 

Under German provisions for standard terms in consumer contracts, the
exclusion from any warranty and liability in the standard terms is not
possible. The crucial provisions are sections 309 No. 7 b) and No. 8 b)
of the German Civil Code. Both rules are implementations of the
above-mentioned European Directive on unfair terms in consumer
contracts. Hence, other EU member states should have similar provisions
within their respective national laws.

Under section 309 Nr. 7 b), liability for intentional damage and damages
arising from grave negligence cannot be excluded.

Under section 309 Nr. 8 b), an exclusion of any warranty for the
qualities of a delivered new good is invalid.

German courts apply these rules for standard terms also in cases where
the parties are businessmen on both sides of the contract.  

As a result, the typical disclaimers of Free Software and Content
licenses are not binding. 

Consequently, the non-mandatory provisions (“dispositives Recht”) of the
German Civil Code are to be applied. Most German scholars agree that the
law relating to gifts (Schenkungsvertrag) should apply if the licensor
delivers the software programme for free. Therefore both the German CC
license and the DPPL license include rules adapted to the
Schenkungsvertrag:

These are the rules of the German CC license:

5. Representations. Except as otherwise agreed in writing Licensor does
not make warranties of any kind with regard to the license grant, unless
Licensor acts in bad faith. 

With regard to the software as such, the distributor makes warranties if
there is a special agreement or, if not,  under the non-mandatory
provisions of the German Civil Code. 
 
6. Liability. Beyond the representations and warranties contained in
Section 5 Licensor is liable for damages only in cases of intentional
damage and damages arising from grave negligence. 

The DPPL provides a similar concept in section 11 and 12 which is a
little more sophisticated. I don’t want to go into the details here. 

As you can see, the licenses need to be adapted on this point in order
to prevent misunderstandings on liability and warranty between the
contracting parties. 

This is my third argument why national license versions are important to
have. We cannot ignore the fact that some provisions of today’s licenses
are invalid.  


4. 
My list could be greatly expanded. But this wouldn’t be the right place
for an exhaustive analysis of all legal problems of the Free Content
licenses. Instead I would now proceed making a few points with regard to
the underlying legal principles.

German copyright and contract law in many respects is more restrictive
than United States law in these fields.

With regards to contract law, it’s often the underlying consumer
protection policy of the European Community that restricts the freedom
of contract. But there are also a plethora of restrictions and mandatory
rules for business transactions. 

As far as copyright is concerned, German law aims to protect the author
– and while mostly accomplished through useful rules, sometimes it is
done in paternalistic fashion. This is so, because rules intended to
protect the author end up restricting the freedom of contract as well.

Free Content licenses have to respect these restrictions as far as
German law is applicable. Should the license be governed under a more
liberal contract and copyright regime these restrictions could be put
aside.
As a result of our discussion we can see that important choice of law
questions have to be answered. In the second part I will seek to do just
this and then conclude by briefly presenting different techniques of
adapting international Free Content licenses.  
 II. Choice of Law and Legal Techniques of Internationalization 

1.

Let me first say a few words on PIL. It is obvious that a global
cooperation of authors under the terms of one license / one license
bundle raises a lot of difficult questions with regard to applicable
law. Neither the original CC licenses nor the typical Free Software
licenses contain any choice of law rules. 

For all copyright issues, the rule of territoriality is to be applied.
This is not only a rule of German and European PIL, but it is a
universal rule. It’s laid down in Article 5 of the Berne Convention. 

By consequence, all questions regarding the existence and duration of a
copyright or a neighbouring right are governed by the legal order that
governs this right. Similarly, all copyright limitations (such as Fair
Use, Fair Dealing or the German Schranken) are governed by the
respective national legal order. Finally, the question of whether the
copyright in whole or in part can be transferred, waived or licensed, is
governed by the respective national legal order.

Free Content licenses have to live with this sort of mosaic-like
approach. 

As far as contractual issues are concerned, the answer is even more
complicated. Under article 4 of the Rome Convention of 1980 on the law
applicable to contractual obligations, the applicable law in absence of
a contractual choice is the law of the country “where the party who is
to effect the performance which is characteristic of the contract has,
at the time of conclusion of the contract, his habitual residence.”

I would presume that the licensor under a Free Content license is the
one who has to effect the characteristic performance, because s/he
grants the right. This seems to be true for the simple cases. If the
licensee has to distribute a derivative work under the terms of the same
license – this being the case for copyleft or sharealike licenses, the
situation is less clear. But let us take as a presumption that the law
of the licensor is always applicable. This would lead to the application
of several laws, if the licensors are situated in several countries. 

Now, what are these contractual issues? An answer can be found in
article 10 of the Rome Convention: formation of contract, the
consequences of non-performance, interpretation, warranty, contractual
liability.

The result would be that a user would have to interpret the license
differently for parts of the work that come from different countries.
For each country, for example, the warranties would be different, and so
on.

Today, I can do no more than draw your attention you the problem. Nobody
has yet come up with an answer.

2.

The German CC License provides for a choice of law rule in Section 8 f),
the DPPL in section 15.

For all contractual questions, Article 3 of the Rome Convention provides
freedom of choice. A contractual choice of law clause can be helpful to
solve some of the above mentioned problems. It is useful to have one
single applicable law governing the formation, interpretation of the
contract, warranty and so on. 

By contrast, for the copyright issues, a choice of law clause does not
help. The rule of territoriality is internationally mandatory.
Therefore, the copyright issues are necessarily governed by several
different jurisdictions even if German law is chosen.

Neither the CC licenses nor the Digital Peer Publishing License can thus
hope to escape the rule of territoriality. 


3.
Another crucial point is the relationship between the different national
license versions. I will call this problem the choice of license
problem.

If you take a look at the current CC website, it looks like the right
holders are advised to opt for only one license version. However, it is
also possible to choose more than one license - and I would advise to do
so. If, for example, a German author publishes a text exclusively under
a German license, users in France will have all the legal problems
mentioned above. The iCommons license versions must be used in parallel
to solve the legal problems. In my view, this would be the ideal
procedure.

Yet another question comes to mind. Can licensee, if licensor has
decided to license his work under different license versions, choose
between the different licenses and thus distribute, for example, a work
in Germany under a Japanese CC version? If so, this would result in a
user choosing a license with invalid clauses. 

This question is of particular interest to the iCommons project, as
different versions of the license are not simple translations of one
kind of generic license, but are real adaptations to the respective
national copyright and contract laws. 

One solution could be to opt for the German version only if German
copyright law is to be applied. The law applicable to copyright issues
is mandatory. By contrast, for most contractual issues the law
applicable can be freely chosen. Hence my proposal: why shouldn’t the
licenses be restricted to the territory of the respective state?  A
possible draft could be as follows:

“This license shall apply only if German copyright law is applicable.
German copyright law is to be applied if you copy or distribute the work
or make it available on German territory. In this case, the contractual
issues shall also be governed by German Law.” 

This would help to avoid a mixture of laws in most cases. Furthermore
this would make clear which license version is to be applied. If a user
should distribute hard copies in Germany, the German license would
apply. If s/he should distribute the work on the internet, several
versions would govern this distribution. Obviously, a default license
would have to be determined for countries without an own license
version. 

It is true: this solution is not the most elegant. However, it would
provide a feasible concept for a bundle of national license versions
containing different provisions.  


4. 
The Digital Peer Publishing License is also made for international use.
Therefore it will soon be translated into English. However, this
translation will be nothing but a simple translated version of the same
license. There will be no substantial changes in the legal code. This is
possible because the underlying generic license is adapted to the
stricter German and European law. We did not check the validity of each
and any clause under U.S. or English law. The generic license is based
on the asssumption that the requirements of the more liberal Anglo-Saxon
legal orders will be met, if the requirements of the stricter German law
are met already. 

An advantage of this solution is that a choice of licence-clause is no
longer necessary. It is one license. Both versions are legally binding. 

But which version will prevail if a difference between the two versions
occurs? This is a delicate question. German Consumer Protection Law
provides that standard terms are written in German. A simple non-binding
translation therefore would not suffice. By contrast, a purely German
license could provoke a lot of problems under foreign Consumer
Protection law. After long discussions we decided to follow the
principles of article 33 of the Vienna Convention on the Law of Treaties
of 1969. This convention deals inter alia with the interpretation of
international conventions. Our adoption in section 15 has the following
wording: 

This license is written in German and English language.  The text is
equally authoritative in each language.  The terms of the license are
presumed to have the same meaning in each text.  When a comparison of
the two texts discloses a difference of meaning, the meaning which best
reconciles the texts, having regard to the object and purpose of the
license, shall prevail. 

I am very interested to hear your comments on this solution. 

You see that there are different approaches to internationalize Free
Content licenses. Both have their advantages and disadvantages. It
should be up to authors and other right holders to make their choice. 
 III. Conclusion

I would be glad if you were to accept as my conclusion that without
doubt there are many problems, but that most of these problems can be
solved by the Free Content community itself. 

The licenses have to be improved in particular with regard to
international law and the differences of the various national laws. As a
first step we need more knowledge about the requirements of national
copyright and contract law systems. We need to learn more about the
needs of each country. Therefore, I am very glad to be here today. 

But the Free Content community alone cannot solve all problems. For some
questions we need the help of the legislator. I would wish the lawmaker
to recognize the needs of the Free Content community and avoid the
creation of new legal problems. 

It might be interesting for you to learn that the German Bundestag in
the German Copyright Act of 2002 mplemented new rules on copyright
contracts with the aim to protect the author.  Under these new
provisions, the author can require his contracting partner to consent to
changes of the contract affording the author equitable remuneration. To
prevent easy circumvention, the new provisions state that this claim
cannot be waived in advance. 

These rules would have created a situation of legal uncertainty for Free
Content licenses.  Would Linus Torvalds would have the right to claim
equitable remuneration from IBM? I think the danger is evident. 

We were able to convince the Federal Ministry of Justice to propose to
the Bundestag a special reservation for Free Content – and it was
enacted. It can be found in section 32 paragraph 3 sentence 3. 

        The author can grant a non-exclusive license free of charge to 
everybody. 

I think this is an encouraging example. 

Thank you for your attention.