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cc-licenses - Re: [cc-licenses] New Generic and ports

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Subject: Development of Creative Commons licenses

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  • From: Peter Brink <peter.brink AT brinkdata.se>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] New Generic and ports
  • Date: Sat, 07 Oct 2006 15:25:32 +0200

Henri Sivonen skrev:
Considering that Free Software and Open Source has worked fine with English-only licenses, that non-Americans are routinely using the existing U.S./"Generic" CC licenses and that CC now has a "New Generic" license draft that is designed to work globally, what's the point of having ports of the 3.0 series instead of using the "New Generic" with English as the governing language everywhere?


There are several reasons why "localized" licenses is a must:

1) There may be formal requirements for copyright contracts (or indeed contracts as such) in certain jurisdictions (both France and Germany for example has such rules IRRC) that must be met or else the license fails to come into force.

2) Having a text in the local language, adapted for that jurisdiction will be immensely valuable if a court needs to analyze the license.

3) Creators will feel safer when using a license written in their own language.

4) It's necessary to be able to assure creators that the license is enforceable.

One could compare to how the European Union deals with the problem of harmonizing rules across many jurisdictions. Resolutions (which are directly binding legal instruments) and directives (which are binding legal instruments that must be implemented nationally) are written in French, translated to German and then to English. All the other 23 translations are based on those three versions. The CC licenses is probably best compared to a directive. A directive sets up the legal rules (and the results of those rules) that a member state's legislator must implement. How that is done is however up tho each member state.

The generic CC-license detail the legal effects (or results) that the license should have, it is the task of the national CC-groups to implement this using a legal language that creates the same effects (at as close as possible) as the generic license. As long as the generic license is based on U.S. law the differences btw the generic license and the will by necessity be fairly large. These differences will become smaller with the new 3.0 license, but (as I wrote above) there will still be many reasons why we will need to implement the generic license nationally.

A major difference btw CC and the EU is of course that CC lacks any ability to enforce its own interpretation of the license. Disputes about how the implementation(s) of a EU resolution or directive has been carried out or about how to understand the rules of a directive or regulation are arbitrated by the the Court of Justice and the Court of First Instance of the European Communities. It's btw a serious mistake to think that CC's opinion on how the license works would have any impact on how court would interpret the license. It's the parties opinions that matters.

In fact the entire Open Source is based on the illusion that the GPL would work the same way in the U.S. and (for example Sweden) - it won't. One *must* have "localized" license that implements a common set of effects to be able to, with any kind of certainty, assure creators that WYSIWYG, i.e. that they can trust the license.

/Peter Brink





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