Belgian and Israeli Courts Grant Remedies to CC Licensors
Matt Liebenson, January 21st, 2011
Litigation involving CC licenses is infrequent even though we’ve been around almost a decade and hundreds of millions of creative works are published under CC licenses. CC believes that this absence of litigation is evidence of widespread acceptance and understandability of our licenses. That said, we still appreciate occasional decisions by courts confirming that CC licenses operate as intended when tested (we note a few on our wiki), such as recent decisions in Belgium and Israel. These decisions also showcase important features of our licenses and how they operate to help copyright holders share, while fully retaining any rights they have not chosen to grant.
In the Belgian case, Lichôdmapwa v. L’asbl Festival de Theatre de Spa, a theater company used 20 seconds of the song “Abatchouck” in an advertisement. The song had been released by the Belgian band Lichôdmapwa under a Creative Commons BY-NC-ND (Attribution, NonCommerical, NoDerivatives) license. Lichôdmapwa brought suit, claiming the theater company violated all three license conditions when it failed to provide attribution, used the song in a commercial advertisement, and used only a segment of the song.
The Belgian court agreed. Citing opinions from Dutch, Spanish and American courts, the judge held that the theater company violated the Creative Commons license and therefore had committed copyright infringement. The Belgian court disagreed with the defendant’s claim of ignorance to the license given the defendant’s prior licensing experience and because the website from which the music was downloaded referenced the CC license. The judge also dismissed the defendant’s claim that because the band was not a member of the Belgian collective rights management association SABAM, the band should receive reduced or no damages. The court awarded the band 4500 Euros.
This month, an Israeli court for the first time granted relief in a suit for copyright infringement brought by a Creative Commons licensor. In Avi Re’uveni v. Mapa inc., the plaintiffs uploaded photographs to Flickr and licensed them under a Creative Commons BY-NC-ND license. The defendant likely violated all three license conditions when she made a collage incorporating the photographs, sold the collages, and did not provide attribution. The defendant asserted she had no knowledge the photographs were under copyright or distributed under a CC licenses, claiming that she had instead downloaded them from another website where no copyright or CC license information existed.
The judge concluded that the defendant had no right to use the copyrighted photographs and therefore was liable for infringement. Although the judge mentioned the CC license only in passing and did not discuss enforceability or whether its terms had been violated, he did not suggest that the license was unenforceable, or that the defendant was not liable for copyright infringement based on the distribution of the photos with a Creative Commons license. For further analysis, CC Israel has made a statement about the case as well.
These cases together highlight some important fundamentals about how CC licenses operate. First and foremost, our licenses operate in conjunction with copyright, not in lieu of copyright. This means that if the terms of the CC license you have applied to your music or other creative work are violated, as the judge concluded in the Belgian case, the result is copyright infringement and nothing less. Conversely, the CC licenses are designed so that downstream users who abide by the license conditions are not in violation of the license. Both court decisions also reinforce a related and subtle (yet important) point for CC licensors — using a CC license does not work against you when it comes to enforcing your copyright later, even when users of your work may not be aware of your license choice. There is no penalty down the line for choosing flexibility over “all rights reserved” when it comes to enforcing your copyright.
These are just a few fundamentals of the licenses that CC works everyday to steward. Please support our ongoing stewardship efforts by donating to Creative Commons today!