Professor Séverine Dussollier of the University of Namur has emailed us to let us know about a new case involving Creative Commons in Belgium, and has kindly agreed to allow me to repeat her short analysis of the case here. She writes:
A Belgian court today has applied the CC license to a copyright infringement suit. I attach the judgement (in French). The facts were simple, a music band had posted on its website some music under a CC license Non commercial – No derivative works. A theater adapted the music to make an advertisement for their theatrical season. The ad was broadcast on the national radio several times (with no attribution).
The band refused the damages that the theater proposed (1500 €) and decided to sue for copyright infringement.
The court acknowledged the licensing under the CC license and the fact that the theater did not respect any of the license features:
- 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.
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).
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…
This is an extremely interesting ruling for various reasons. Firstly, it helps to eliminate the typical FUD that tries to undermine Creative Commons as licences that are not valid because they lack case law. Secondly, it will also serve to answer another common piece of FUD, which tries to imply that CC licences are American-centric documents that are not valid and/or enforceable in Civil Law jurisdictions. Finally, it is interesting to see how a court may consider the fact that a licence is non-commercial when calculating damages, a solution which I tend to agree with.