In what is sure to be big news for supporters of the Creative Commons licensing regimes, a Dutch court has recently upheld the validity of the Creative Commons Public Attribution Non-Commercial Share-Alike 2.0 licence.
From what I can make of the judgment (in Dutch), the action was brought by an Adam Curry, who was understandably concerned about the unauthorised commercial publication of several of his photographs. The photos were released on popular photo-sharing site Flickr under a Creative Commmons licence. The terms of that licence required attribution and permitted copying only for non-commercial use. Curry sued the magazine that published his photographs. The Dutch Court held that the magazine was bound by the terms of the licence, and awarded compensatory damages of € 1000.
My Dutch isn’t what it used to be, but this seems to be the money paragraph:
De voorzieningenrechter:
1. Verbiedt gedaagden na betekening van dit vonnis ieder gebruik, iedere verveelvoudiging en/of iedere openbaarmaking van de werken van [eiser1], die zijn geplaatst op de website www.flickr.com , zonder voorafgaande schriftelijke toestemming te staken en gestaakt te houden, tenzij dit gebruik, deze verveelvoudiging en/of deze openbaarmaking in overeenstemming is met het bepaalde in de voorwaarden waaronder de werken door [eiser1] op die website ter beschikking worden gesteld als vermeld in de Creative Commons Public License Attribution-NonCommercial-ShareAlike 2.0 en/of is toegestaan op basis van wettelijke bepalingen, een en ander op straffe van een dwangsom van
€ 1.000,- per overtreding van dit verbod met een maximum van € 20.000,-.
2. Compenseert de proceskosten aldus dat iedere partij de eigen kosten draagt.
3. Verklaart deze kostenveroordeling uitvoerbaar bij voorraad.
Thank you, oh magical fish:
1. The Court prohibits, after pronouncement of this order, use and/or publication of the work of the complainant, which has been placed on the internet site www.flickr.com, without first obtaining written authorisation and/or making the publication in accordance with the terms according to which the work is made available by the complainant on that internet site as mentioned in the Creative Commons Public License Attribution-NonCommercial-ShareAlike 2.0 and/or has been permitted on the basis of legal provisions. Failure to comply attracts a penalty payment of €1.000 — by summary offence of this prohibition — with a maximum of €20.000.
2. The Court thus compensates the process costs that every party carries its own costs.
3. This cost condemnation explains feasible at stock.
Despite the poor quality of this automatic translation, it seems apparent that the the Court upheld the terms of the licence:
The claimant [has] the copyrights [in] the four photographs originating from www.flickr.com. Weekend has also recognised this, by use of the ©-symbol. … The photograph is put on the Internet site available under the conditions which have been incorporated in the [Creative Commons] licence. This is recognisable to every visitor of the Internet site, because at the photograph the text ‘some rights reserved’ has been included. At the [bottom] of the symbol [and] that text one becomes [linked] to the shortened text of the licence. Then one can [click] to the complete text of the licence.
That the conditions of the licence apply, becomes clear from the openings words of it, [which state]: “By exercising any rights to the work provided complete, you accept and agree to be bound by the term or this license.” [The defendants] have not met the requirements which the licensor put to the use of the photograph. Article 4 under the licence stipulates that the [defendant’s] use can produce no commercial advantage, whereas Weekend is [manifestly a] commercial illustrated magazine.
Article 4 of the licence stipulates — in paraphrased form — that upon distribution and public consumption of a work a copy of the licence must be supplied. Weekend has not met this condition because no reference is made to the licence. [This is a] violation [of] the conditions … This has been also recognised by the defendants in the communication in Weekend Number 4 of 2006 [presumably a retraction or apology].
[It] is important [to recognise] that the defendants have, as a professional commercial party, a higher duty of care [to uphold the terms of the licence]. They [should] have … contacted the complainant before publication. [The mere fact that] the photograph contains the text ‘This photo is public’ does not weaken the applicant’s case. This means only that the photograph can be examined by everyone. [However,] it gives to no right publish the photograph in Weekend or elsewhere.
Importantly, the judge recognises that making a work freely available on the internet does not equate to surrendering copyright in it. However, nor does it equate to reserving all the rights traditionally associated with copyright in printed works. By upholding the terms of the licence, the Court has taken one step towards providing a more flexible middle ground to digital content creators.