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[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

I am sorry I have not had the time to comment on version 3 of the CCUK draft
which was circulated on 21 September (incidentally the website still has
version 1 as the current draft for comments, which is unfortunate as there
have been several exhortations to go there to view the current version). Two
unrelated points on today's proposals.

1.The versions of proposed licence distributed today give rights to "view,
edit, modify, translate and distribute Works within the United Kingdom ".
Surely the last four words (repeated at several points) should be deleted
and 'worldwide' substituted? Take a website uploaded by a UK licensor to a
French server and viewed in Germany by somebody who wishes to quote the
contents in Poland. How could this language apply?

2. Clause 6.4 states "This Licence shall be governed by the law of England
and Wales, Scotland and Northern Ireland, and the parties irrevocably submit
to the exclusive jurisdiction of the Courts of England and Wales, Scotland
and Northern Ireland."  Now, at present there are not many material
differences between the three systems (though clause 6.3 flags one and there
are others). But:
(a) how is it conceptually possible for a licence to be governed by three
systems of law simultaneously?
(b) isn't this indeed likely to lead to argument between a user and the
licensor as to what the applicable law is ?(see Beximco Pharmaceuticals Ltd
& Ors v Shamil Bank of Bahrain EC [2004] EWCA Civ 19 at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/19.html for an example of the
unnecessary difficulties in attempts to use two systems of law
simultaneously) 
(c ) there is no 'exclusive jurisdiction' if three jurisdictions are being
submitted to. This appears to be intended to give anyone suing on the
contract a choice of the three, so if an English licensor is in a dispute
with an American user the user could sue in Scotland or Ireland if he/she
chose: schedule 4 of the Civil Jurisdiction and Judgments Act 1982 as
amended provides " 12.  - (1) If the parties have agreed that a court or the
courts of a part of the United Kingdom are to have jurisdiction to settle
any disputes which have arisen or which may arise in connection with a
particular legal relationship, and, apart from this Schedule, the agreement
would be effective to confer jurisdiction under the law of that part, that
court or those courts shall have jurisdiction." I doubt if any licensor
would wish to go out of their own jurisdiction; and why should they?

Now I know I have made this point  already more than once. The licence will
have to have a number of menu choices anyway as to rights of use. Wouldn't
it be simplest just to have each of these in three editions for the three
jurisdictions? There are other ways of doing this.


Jonathan
--
Jonathan Mitchell QC

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