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cc-licenses - [cc-licenses] Am I a contract or not - that is the question...?

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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: [cc-licenses] Am I a contract or not - that is the question...?
  • Date: Mon, 09 Oct 2006 16:13:47 +0200

The following is a somewhat theoretic piece of text and is a clearly civil law oriented alternative way of looking at the license. Food for thought for some, needs to be taken into careful consideration by others (like the Swedish CC-team) – IMHO of course.

Andres Guadamuz skrev:
>
> In my very personal view, you have a contract in copyright licences in
> most civil law systems because the offer takes place when the work is
> made available to the public under a licence, while the acceptance
> takes place when the licensee uses the work under those terms.
> However, in some systems the making available to the public would be
> an invitation to treat, and NOT an offer, which could mean that you
> may not have a contract until the licensor has made an unequivocal
> acceptance. The intention to enter into a legal relationship is clear
> on the fact that the work has been made available under a licence.
>

There's a problem with the offer here though (that I just realized myself). There are in most civil law jurisdictions some retirements on an offer, it must be:

1) addressed to one or more specific persons and
2) be sufficiently definite and
3) indicate the intention of the offeror to be bound in case of acceptance.
(cf. CISG art. 14(a))

Our problem is that the license is addressed to an indefinite number of people. If we have another look at CISG, in 14(2) it's stated that "[a] proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal."

This description very nicely fits the CC-license. There's an offer, not very explicit but still and the offer is obviously not targeted at a specific person or a specific set of persons. Needless to say the interpretation of whether or not the CC-licence's offer is really an offer will vary from jurisdiction to jurisdiction, but there is really no clear indication of that the license is an offer (in the first place) and even less that it's not an invitation to make an offer. And in Sweden at least, that means that the offer is not binding to the licensor, i.e. he can revoke it. Since Sweden uses the promissory principle and not the contract principle (when forming contracts) an offer is normally bound by his offer until it's accepted or rejected and that's why it matters to us if the CC-license contains an offer or not. Since the promissory principle is quite widely used this might be problem elsewhere as well.

Now there's is always more than one way of skinning a cat. One way of handling the CC-license is to treat it as a loan (not as gifts [as I have confusingly said in previous posts] though - a gift transfers the ownership of a piece of property). A loan isn't really a contract. Loans are sometimes called contracts but that's is a bit of a misnomer, a contract consists of two unilateral legal acts that (in theory) manifests one will, a loan however is a unilateral legal act manifesting *one* persons will.

In Sweden, as a general rule, a benefactor isn't bound by his promise until he actually transfers the property. If he has presented the beneficiary with a written deed (for example a promissory note) or made the promise in public he is, however, bound by his promise.
There is no real need of an formal acceptance of a gift or loan, the beneficiary's actions is often enough. If he makes use of the beneficial act he has accepted it. When a beneficial transaction has been carried out it cannot easily be revoked, unless the benefactor has stipulated some terms for the beneficial act. Such terms may very well resemble ordinary contract clauses - the springing point is if the terms creates such a burden on the beneficiary that the gift or loan looses its beneficial character, if that is the case then the beneficial act morphs into onerous contract.

It's fairly obvious (IMO) that releasing a work under a CC-license is a beneficial act. The copyright holder (the benefactor) grants anyone in the world the right to use his work in ways they would not have been able to do without his permission and there is no demand of any monetary compensation. There are however terms associated with the loan. The question is then if the terms associated with the CC-licenses creates such burdens on the licensee that the license stops being a beneficial legal act and becomes a onerous contract instead.

The terms are:

a) You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform.

b) You may not offer or impose any terms on the Work (or any Derivative Works) that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder.

c) You may not sublicense the Work.

d) You must keep intact all notices that refer to this License and to the disclaimer of warranties.

e) You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work (or any Derivative Works) with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.

f) You must keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: ...

The last term (f) is already required by law (in Sweden at least), so that cannot be said to be a burden imposed by the benefactor. A can hardly be called a burden, neither so D. It cannot be considered an onerous task to maintain a few pieces of information about the work. B is also hardly a burden, the benefactor request that you do not alter the effects of his beneficial act, which is very reasonable. That the beneficiary may not issue sublicenses follows from the fact that there has been no transfer of ownership, the licensee only borrows some parts of the copyright holders rights, so C is also hardly a burden. That the beneficiary is forbidden to impose any technological measures that might alter the benefactors intentions with his beneficial act does not create an onerous burden on the beneficiary. It follows from an unspoken rule that the beneficiary should respect the wishes of the benefactor.

It's quite possible IMO to take the position that the license does not impose any obligations (in a contractual sense) on the licensee. The CC-license can therefore be seen as neither an license nor an contract but a loan. It's not a license because such an legal instrument does not exist in civil law jurisdictions. It's not strictly a contract because it's a beneficial legal act and not an onerous one. It's a loan because it does not transfer any ownership of property.

This line of reasoning has two interesting results. 1) The licensor cannot terminate the license unless the licensee violates the terms in a essential way. Terminating because of only a minor breach would probably be seen as unfair to the licensee by a (Swedish) court. A termination of a gift or loan causes a burden on the beneficiary which is why Swedish courts are restrictive when applying such a harsh sanction. 2) The benefactors understanding of his own manifestation of his own mind will (obviously) become the prevailing factor when a court analyzes the meaning of the license. This means that a licensee would be wise to check with the licensor if he is in doubt about, for example, how the term non-commercial is to be understood.


/Peter Brink












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