CC-UK (was: Re: [Fsfe-uk] Free software and UK law)

[Alex Hudson]

On Thu, 2004-04-29 at 11:21, NorthLondon John wrote:
> Not really what you're looking for, but there's a creative commons UK 
> localization project:
> http://creativecommons.org/projects/international/uk/
> One of a number of localizations, the aim is to audit CC licenses for 
> the UK (and shake out any US-specifics from the original licenses), and 
> there's some heavyweight legal minds involved.

That's incredibly interesting, especially from the point of view of
being able to bring QCs and Lord Justices on board (Lord Justice Jacob
raising the same point Jason raised earlier - UK-only licenses are a bit
of an exercise in futility, he describes them as "hopeless").

The Lord Justice's comments on fair use are interesting too (more in a
bit).

However, the *really* interesting thing is the last clause of the CC-UK
clause (and, inter alia, the comments on it or in similar areas):

        h.      A person who is not a party to this Licence will have no
        rights under the Contracts (Rights of Third Parties) Act 1999 to
        enforce any of its terms. 

Ok. This isn't a problem in itself, but raises two issues:

i.  does a party to the licence have contractual rights?
ii. does UK law imply a contract in the scenario of a copyright licence,
and can third parties enforce rights with other licences without the
above clause?

The reason I pose those is because the clause h) above seems to be
entirely meaningless: I would have said that a person would not be able
to invoke ROTP because there was no contract existent. Going back to
Justice Jacob's commentary, his remark on the fair use clause within the
licence was that it was unnecessary, since you "cannot contract out of
these rights" (paraphrasing). Again, implying that contract rights
exist.

There are a couple of reasons why they feel this might be important (and
I think it's worth asking them). It could be that they think these
licences are contracts - this would be very significant, if the case
(for example, the GPL starts becoming self-inconsistent at best; at
worst, unusable). The second could be that there are no grounds for a
licence to enforce rights other than those provided for by copyright
law: if a licence somehow attempts to enforce rights outside of those -
by design or accident - does it fall back to a contract somehow? Or, is
it simply another way of trying to say "this is not a contract"? Or, are
they so used to looking through the eyes of contract law they have
missed the point? After all, although I suspect copyright law tends to
be used to prosecute "misuse" of software, the defence would usually be
reliant on a contract between customer and supplier rather than a
general copyright grant per se. Maybe no-one else designs their licences
like this (entirely possible).

Cheers,

Alex.