Cc-uk mailing list

[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

Some comments as a practising lawyer:-

1. The question whether the UK licence should mirror CC International v2
("CCI2") is not simply a 'policy' question (although I agree with Rob Myers
and Cory Doctorow on the policy issues). There are significant differences
in rights and duties under this draft from CCI2. I am unclear what are
thought to be the specifically UK justifications for some of these: see para
3 below. The differences between UK and US legal systems certainly don't
justify them and I would suggest that they should be explicitly justified.
Thus Andres Guadamuz says "the attribution clause needs to be different in
the UK"- but how and why?

2. One difference that European/UK law does require is that the contract be
written so far as possible in plain English. SI 1999/2083, implementing the
European Unfair Contract Terms Directive, provides that "7.  - (1) A seller
or supplier shall ensure that any written term of a contract is expressed in
plain, intelligible language." See
http://www.legislation.hmso.gov.uk/si/si1999/19992083.htm . Now obviously
this is constantly broken, but my experience is that a good contract is
practically always capable of being plainly expressed- and CCI2 isn't. I see
the drafters of UK2 have rightly followed this. I think however they have at
some points not thought through what purpose particular clauses in CCI2
actually served; and plain English doesn't require reordering of clauses,
only rewording.

3. Some unnecessary legal differences in UK2 are these:
A. The very vague provisions as to ' honour and reputation' in 5D and 5E.
These seem to strike at critical comment or even unfavourable juxtaposition.
Do they mean that if somebody publishes a page from my website and then adds
'this is nonsense; he simply hasn't understood XYZ' that is in breach of the
licence? Or are they simply meaningless? There is no equivalent provision in
CCI2 and I suggest these should simply be deleted.
B. I may have missed something in CCI2 but UK 2 at 4A seems to require
further crediting for the year of publication. Why? This seems unnecessary.
C. CCI2 allowed copying under a similar but different CC licence; see 4b.
UK2 seems at 4F to allow any CC licence to be used for copying, although
this is unclear given its other provisions.
D. Importantly, CCI2 excluded all representations and warranties by the
owner, see clause 5- this after a long debate and surely correctly. UK2 at 7
reintroduces some of these. Again, although delictual or tortious remedies
might be available anyway against a licensor who had not used reasonable
care, I don't see the point of including these in the contract and to do so
runs counter to the spirit of CCI2.
E. There is no equivalent in UK2 to CCI2's limitation of liability at 6.
This would certainly require redrafting for the UK, but I would suggest that
in principle it should be included.
F. 8A in UK2 provides that if a user is in breach, he/she has sixty days
grace after I find out and send notice. Odd. This looks like a lift from a
commercial lease. What's wrong with CCI2 at 7a with its automatic
termination provision? This incidentally is a very clear example of the
problems Cory Doctorow pointed to if the licences aren't compatible.

4. A partly non-legal point is that UK2 seems to require blanks to be filled
in; name of licensor, work licensed, jurisdiction in which resident. How is
this going to work? It certainly can't be used in the traditional CC way of
including  a hyperlinked logo on a webpage to the appropriate CC license. In
practice it will cause difficulties in the case of changing works or
changing contributors.

5. Having nagged for changes to the Anglocentric earlier draft, I do think
that there is a good purpose in a European CC licence including a
jurisdiction clause. But the present clause, second sentence of 9G, is
naïve. A workable jurisdiction clause needs to take account of how the law
of jurisdiction actually works, under the Brussels Regulation in particular
(this is at 
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdo
c&lg=en&numdoc=32001R0044 -see
http://www.jonathanmitchell.info/jurisdiction.html for introduction) . Thus
it should state that the owner is domiciled in X (art 2); state that the
place of performance of any obligations under the contract is X and that the
services under it are provided in X (art 5 1(a)) (with an explanatory
statement as to, and exclusion of,  legal theories of where websites are
provided, see e.g. 
http://www.anu.edu.au/people/Roger.Clarke/II/DefWeb01.html ); to exclude Art
15 jurisdiction, it should state that the owner does not pursue commercial
or professional activities anywhere but X and does not direct commercial or
professional activities anywhere but X; and to engage art 23, state that the
courts of X should have jurisdiction in any dispute under or relating to the
license . Looking back at paragraph 4 above, what this requires is a set of
three drafts for the three UK jurisdictions, but other than the statement of
which jurisdiction applies the differences should be slight.

I appreciate a lot of work has been put into UK2 but I suggest a better
approach would be to provide a plain English version of CCI2, with changes
only where called for by the UK legal systems (e.g. 3f, 6, addition of
jurisdiction clause) rather than mere personal preference, and with
explanatory notes on these changes. May I say with the utmost possible
respect, as the cliché goes, that the current draft seems a little light on
hard legal input of this kind.

Jonathan
--
Jonathan Mitchell QC

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