Belgian Court Rules That Violating Creative Commons License Subjects You To Copyright Infringement Charge

from the legitimate-license dept

Mon, Nov 8th 2010 3:45pm — Mike Masnick

There hasn't been too much case law around the legitimacy of Creative Commons licenses, and some have questioned whether or not they're really legitimate. I'll admit that I do have some questions about certain aspects of CC licenses, but over in Belgium a court has pretty clearly claimed that Creative Commons licenses are perfectly legitimate. The case involved a band that had released its music under a CC attribution-non-commercial-no derivatives license. However, a theater apparently used the music (in a modified form) as part of an ad for its upcoming season, and the ad played on national radio.

The band sued, noting that the theater violated the CC license and, thus, had violated copyright law. The court agreed, noting the near total failure of the theater to respect the specific license terms, and found the theater's defenses unconvincing:

The theater defended itself by arguing a mistake (the court said that as a professional of the cultural sector, they should pay more attention to licensing conditions) and its good faith (traditionally not accepted in Belgian as a defense to copyright infringement).

This is certainly at least a nice boost to the legality of Creative Commons licenses, though it does sort of highlight how many users of CC-licensed content don't really understand (or pay attention to) the specific restrictions in the licenses of content they use.

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Filed Under: belgium, copyright, creative commons, licenses
Companies: creative commons

12 Comments

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Anonymous Coward, 8 Nov 2010 @ 4:45pm

I'm not sure how Belgian courts look at licenses, but it seems to me you get a copyright infringement result in this case regardless of whether the license is valid.

If it's invalid, there was never any permission to use the work in the first place, and it's copyright infringement.

If it's valid, you exceeded the scope of permission that was validly granted, and it's copyright infringement.
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Anonymous Coward, 8 Nov 2010 @ 4:55pm

If the CC License is legally invalid, then it is unclear whether they would have permission to use the music, and so it is premature to declare that infringement would have taken place without knowing the artist's opinion on the matter or giving the two parties a chance to work it out.
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Anonymous Coward, 8 Nov 2010 @ 4:59pm

Re:
Not sure if this was supposed to be a response to my post (kind of looks like it).

Given that the copyright owner is suing for infringement, I think their opinion on the matter is clear, and they aren't trying to "work it out" at this point.

To the extent "it is unclear whether they would have permission to use the music," any such lack of clarity has nothing to do with the CC license.
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RandomGuy (profile), 8 Nov 2010 @ 5:50pm

Mike, I'm interested to know what questions you have about which aspects of CC licenses?

I was always under the opinion that if those are the terms a content creator wanted to license their content under, then fair enough. End of story.
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Anonymous Coward, 8 Nov 2010 @ 6:06pm

Re: Re:
Except the court apparently mentioned the CC Commons by name and pointed out the following:

* no attribution was made
* the music was slightly modified for the ad
* the advertisement, even for a theater was a commercial use prohibited by the license.

http://www.technollama.co.uk/wordpress/wp-content/uploads/2010/11/2010-10-26-D%C3%A9cisi on-trib.-Nivelles-Lich%C3%B4dmapwa.pdf

Also the funny bit:

"But the court denied to the band the amount of damages they reclaimed (around 10.000 �- and only granted 4500� (i.e. 1500� for each attribute of the license that was not respected), considering that it was paradoxical to license works under a CC license and a non-commercial ideology but demanding a price that would be higher than commercial conditions�"

Maybe meaning that if you use CC you are not entitled to statutory damages or they don't have that in Belgium.
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abc gum, 8 Nov 2010 @ 6:57pm

I like waffles, and I pay for the ones I eat.
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seamusmccauley (profile), 8 Nov 2010 @ 11:51pm

Another landmark ruling for a Belgian Court of First Instance
This'll be another ruling from a Belgian regional Court of First Instance. There are about 25 of the things, they're supposed to deal with civil cases that go above a threshhold of about E2k but the Brussels one has been handing down landmark copyright rulings since 2004 when it held Tiscali liable for p2p activity by the ISP's customers and the in the Google/Copiepresse case, and while this is the same court in a different region the pattern is interesting.
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Lawrence D'Oliveiro, 9 Nov 2010 @ 12:06am

Re: CC Questions
Mainly about the meaning(lessness) of �non-commercial�. See his previous items on the topic.
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R. Miles (profile), 9 Nov 2010 @ 3:27am

No surprise.
All this article did was point out exactly what I've been saying about CC since day 1: if an artist finds the license violated, they'll use copyright law to fix it.

This certainly won't be the last case we'll hear about regarding this issue.
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Laurel L. Russwurm (profile), 9 Nov 2010 @ 8:02am

Re: No surprise.
And that's inconsistent because...?

As the CC website or @lessig will tell you, CC licenses are not instead of copyright law, they work within copyright law.
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Anonymous Coward, 9 Nov 2010 @ 9:24am

Re: No surprise.
Yeah. Thats not very controversial is it ball sorts of open source and "copyleft" licenses depend on copyright law.
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Anonymous Coward, 9 Nov 2010 @ 12:07pm

Re: Re: Re:
I'm not saying the license is irrelevant. I'm saying (a) you get infringement regardless of whether you think the license is valid or invalid, and (b) any supposed lack of clarity regarding permission doesn't really have anything to do with the license.

The court certainly appears to treat the license as valid, since it evaluates whether they defendant complied with its terms, but if it felt the other way about the license's validity it would probably reach the same result on liability.

The damages logic seems faulty to me, though I have no idea what the applicable law is on that. If you don't give permission for commercial use, it seems perfectly sensible that someone should have to pay a higher-than-market price for such use.
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