BY VICTORIA REA

While there has been no New Zealand court decision regarding the use or validity of Creative Commons Licenses, there have been decisions we can turn to in comparable overseas jurisdictions. This will give us some foundation for deciding how the New Zealand courts might treat a case involving CC. Since Creative Commons licensing is relatively new, there are only a few cases that illustrate how the courts might treat CC licensing.

Curry v Audax

One notable case comes from the Netherlands: Curry v Audax. In this case, a former MTV star took a case against a Dutch gossip magazine. Adam Curry, former MTV star sued “Weekend” for a copyright infringement after the magazine published photos of his daughter without his permission. The photos had been posted on the Flickr photo-sharing site covered by a creative Commons – Attribution – Non Commercial Share Alike licence. In this case, it was held that the terms of the Creative Commons licence were binding.

An important issue that came up concerned the due diligence that the company should have performed to find the type of license that had been placed on the photos. The defendant magazine claimed that the photos had been publicly shared; there was, therefore, no need to seek authority to publish. However, the courts held that the company did in fact have to ask for authority to publish, noting that it is the responsibility of the user to ensure that they are meeting the requirements of the CC license.

GateHouse Media, Inc. v. That’s Great News.

A second case is from the Northern District of Illinois in the United States: GateHouse Media, Inc. v. That’s Great News. This case includes a claim that the defendant violated the terms of a Creative Commons licence covering the plaintiffs copyrighted works. Gate House Media publish a number of local newspapers for the region. The Register Start, a local newspaper, provides its content online to subscribers under a Creative Commons Attribution Non Commercial Non Derivative License. The defendant party used this information for the creation of plaques for people mentioned in the news.

This case was settled on August 17, 2010. The settlement was not made public,  which is unfortunate, as there are are several interesting aspects to this case. The first is the use of Creative Commons licenses for the purpose of blocking content for the commercial use and whether placing these kinds of strict licenses is actually in the interest of commercial competition. The second is the extent to which the No Derivatives licence applies and whether in this instance the defendant will have been said to alter the work.

Deutschlandradio v Photographer

The third case to look at is a case from Germany that recently discussed the use of the Non Commercial Creative Commons licence and how far it extended in use. The case revolved around a photo from Flickr released on a Non Commercial license, which was used by Deutschlandradio — a public broadcaster and non commercial organisation. The website also included the name of the artist, licence and link to its terms. Despite this, the artist sued. The public broadcaster pointed out there was no charge for their website, no advertising, no sponsorship.

Nevertheless the judge treated the use by  Deutschlandradio as commercial. In doing so, the judge relied on German Common law which defines non commercial as purely for personal use. This case reveals how different common law positions from different jurisdictions may effect how Creative Commons licenses are treated in different countries.

Chang v Virgin Mobile

One of the closest jurisdictional cases is from Australia: Chang v Virgin Mobile. This case involves a Creative Commons licensed image in Flickr being used in an Australian phone advertisement. Chang brought a suit against Virgin under a number of causes of action including invasion of privacy, copyright infringement and breach of contract. The takeaway from the case was that Creative Commons licenses only address the creator’s copyright. The licenses do not affirmatively affect publicity or privacy rights.

SGAE v Fernandez

The Spanish case SGAE v Fernandez looks at a Creative Commons licensing issue for music at a bar. SGAE, a collecting society, sued a disco bar owner alleging that he had failed to pay SGAE the license fee required for public performances of music. The Court rejected the claims because the bar owner successfully showed that the music playing in his bar was not managed by the collecting society but rather was licensed under a Creative Commons license.

The important thing to take away from this case though is that in nearly all previous cases the Spanish courts had ruled in favour of SGAE, under the assumption that the collecting society managed most of the music. This case set a new precedent in Spain and showed that courts recognise different kinds of licensing for music.

Gerlach v DVU

The final case is from Berlin: Gerlach v DVU. In this case, the validity of the Creative Commons license was upheld. The facts are quite straightforward: A woman called Nina Gerlach took a photograph of German Politician Thilo Sarrazin and uploaded it to Wikipedia under a Creative Commons licence. The defendant, a German Political party website, posted the picture without attribution or a link to the original as specified in the terms of the licence. Gerlach sued for breach of licence. The judge considered that the defendant was in breach of the licence and therefore breaching copyright. The judge issued an injunction, ordering the website to remove the picture. This is the best case law example to date showing how Creative Commons Licenses are being upheld in jurisdictions, as it shows judges willing to step in where there has been an obvious breach of the license.

Conclusions

Looking at why there haven’t been many cases involving Creative Commons licenses there are two main reasons that stand out:

  1. the licences are new, which  means that there is always going to be a time-lapse before problems actually arise that are serious enough to be resolved in court; and,
  2. Creative Commons licenses are simple to understand, which may mean that there has actually been very few major breaches, which may in turn lead to very few cases being brought that are relevant to Creative Commons.

While favourable court cases help to promote CC adoption by commercial enterprises and the public sector,  it is important to remind everyone that there is no reason to doubt their validity in the first place. Nevertheless, as these examples show, it is likely that if a case were to arise in New Zealand that the court would uphold the licenses.

Victoria Rea is a student at Victoria University of Wellington School of Law, and was an intern with Creative Commons.

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