Development of Creative Commons licenses

[Peter Brink <peter.brink AT brinkdata.se>]

drew Roberts skrev:
>
> 1. Definitions
>
> e. "Work" means the copyrightable work of authorship offered under the
> terms of this License.
>
> 3. License Grant. Subject to the terms and conditions of this License,
> Licensor hereby grants You a worldwide, royalty-free, non-exclusive,
> perpetual (for the duration of the applicable copyright) license to
> exercise the rights in the Work as stated below:
>
> As much as I would like the only to the "tagged" copy theory to be
> correct, please explain in relation to the actual language of the
> license itself.
>
> Unless the two copies are different copyrightable works of authorship,
> how can you not choose whichever license you want for whichever copy
> of the work you desire?
>

As you know the license is non-exclusive. The copyright holder has 
reserved the right to offer the work under other licenses as well. 
Assume that A publishes a book and reserves all rights. Then later he 
publishes the same text as a pdf-file under CC-BY-SA. How shall we 
interpret the meaning of art. 3 in this case? How would a court approach 
the problem?

The entire issue boils down to a matter of contract interpretation. I’m 
not overly familiar with how that is done in the US but in a civil law 
jurisdiction I would suggest that a court might reason as follows. There 
is a strong presumption in civil law jurisdictions against far reaching 
interpretations of copyright contracts and in favour of letting the 
author keep as much as possible of his rights. In the case of A and his 
book, A has not offered the work in _that form_ under a CC license. His 
intention seems to be that the book is strictly ARR. It’s only later 
that he offers the work, in another form, under a CC-BY-SA license. I 
would suggest that a civil law court in this situation would interpret 
“work” restrictively and only take it to mean that particular form of 
the work which has explicitly been offered (by attaching the terms of 
the license to the work) under the license. This tendency would quite 
likely be reinforced by the fact that the CC license would most likely 
be seen by a civil law court as a beneficial grant of enjoyment, and 
when interpreting such grants a court will base it’s interpretation on 
the will of the benefactor and not on what the beneficiary (the receiver 
of the benefit) would reasonably believe the grant to mean.

So (IMO) the end result is that a civil law court would interpret the 
license _against_ its language and limit the scope of the license to the 
specific form of the work which has explicitly been offered under the 
license.


/Peter Brink