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[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

I would have thought the most fundamental difference, in answer to Rob
Myers, is that the CC licence has contractual effect in Scots law (bare
promises without 'consideration' can have contractual effect). Third party
rights are different. Remedies are different. For a treatise on Scots law,
see a textbook! This is not just about copyright; it is about contract law.

But the point is deeper. The primary purpose of licence terms is not to
state the law which applies in any event, but to regulate potential  dispute
between author and user. That is why, although it is not truly necessary to
have a jurisdiction clause at all, the English licence states: "6.4.
This Licence shall be governed by the law of England and Wales and the
parties irrevocably submit to the exclusive jurisdiction of the Courts of
England and Wales." But, although Prodromos says " this is a CC-England and
Wales Licence and it has to be named accordingly", this is put forward for
Scottish and Northern Irish users, and indeed it is headed up as being 'the'
UK licence and is so referred to at http://creativecommons.org/worldwide/.
That is profoundly misleading and indeed offensive. If this is so
unimportant, why not publish a UK draft which provides for exclusive
jurisdiction in Scotland?

Now I quite appreciate that from an English perspective all this is a storm
in a teacup. No problem. Publish this as an English licence and leave the
Scottish terms to the Scots.

I suggest that this be published as what it is, an English law licence, and
a Scottish licence could then be drafted in Scotland by a team with a
background of Scots law, using the foundation of this draft, rather than the
suggestion now made that an English team based in Oxford should do so. I do
appreciate that that is how the Empire was ruled. But those days are gone.
It wouldn't take long to do a Scottish draft; 95% of the work has been done.
The present team has indicated however that the remaining 5% is beyond their
interest and/or expertise. And why should it be within either? I wouldn¹t
have the nerve myself to publish a contract for use under another system of
law (and my professional insurance cover wouldn't protect me if I did!).
That is surely the point of 'national' projects under CC.

So I have now suggested to Christiane Asschenfeldt that a Scottish project
be set up which can build on this work, rather than the mare's nest of a
supposedly three-jurisdiction agreement dominated by one jurisdiction. Is
there however a strongly-held view in the English team that it is essential
that this be run from England?

Jonathan
--
Jonathan Mitchell QC

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