Evidence of agreement
One thing that you will have noticed is that there is no place on the licence that parties can sign to show their acceptance.
In the absence of signatures how can we know that the parties have agreed to the licence? If the use of a licenced work is ever in dispute in court one of the parties is going to have to prove that the parties agreed to the licence.
Instead of signatures to show consent it’s a condition of the licence that the licensee should incorporate the licence in the copy or derivative work. So as we discussed on 9 February the draft licence provides
THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE (”CCPL” OR “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT, PERFOMERS PROTECTION AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.
and then goes on to add:
“BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.”
This means that agreement to the licence terms stipulated by the licensor is shown by using the work in one of the ways allowed by the licence.
This is not a new concept in South African law. In a case familiar to all South African law students Bloom v American Swiss Watch Co. 1915 (AD) 100, the Appellate Division held that “it is always open to an offeror to indicate any special channel or communication, or any special mode in which acceptance may be manifested.”
The special mode of acceptance stipulated for creative commons licences is the exercise of any of the rights provided in the licence.
One of the terms of the licence is that the licence in its plain language (Creative Commons Deed), legal code and, where applicable machine readable code, forms will accompany the work or derivative work. If someone fails to append the licence then that person has breached the licence terms and the licence is automatically revoked.
But what happens if someone uses the work in a way that is not permitted by the licence? There will there be no agreement and thus the user of the work will not have authority to have used the work. The Copyright Act reserves certain acts for the copyright holder, usually the author or her successors. Once a work is proven to be a copyright work then anyone using the work must justify her use.The user will have infringed the copyright if she commits one of these acts without authority.
How can a user of the work, a licensee, be sure that the licensor will stick to the agreement? Because all works licensed under a creative commons licence have the licence appended by the person offering the work i.e. the licensor. The terms on which the licensor will be bound are already set out, the licensee only needs to accept the terms by using the work in a way permitted by the licence to show acceptance, and bind the licensor.
The Universal licence includes a further phrase that has been struck through in the South Africa draft licence to show our intention to omit it from the final licence:
THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.
This is because the Anglo American common law systems require consideration for the formation of a binding agreement. However consideration is not required in Roman Dutch common law to form a binding agreement. It is suffecient that the legal actors evidence the intention to form a legally binding relationship.