The South African Open Copyright Review Final Report is online

Filed under: Announcements, Featured Content, Legal licences — Tags: , , , , , — Dave @ 7:27 pm

As annouced by Andrew Rens at the Shuttleworth Foundation:

The final Report of the South African Open Copyright Review is online.

The Review closed last year, but its taken us a bit of time to produced a properly formatted downloadable version of the final Report. Now we have and its available for download, under a Creative Commons Attribution Share Alike South Africa 2.5 licence.

The Report includes recommendations on exceptions and limitations, Orphan Works, strengthening the Public Domain, and parallel import.

The Report comes at an interesting point in the debate about copyright. Although librarians and educators have argued for appropriate exceptions and limitations, ever since the current Copyright Act was passed in 1978 (and possibly before then), the issues of Orphan Works and the Public Domain have been largely neglected, and the prohibition on parallel imports has received far too little attention.

Basic reforms on these issues are overdue.

Evidence of agreement

Filed under: Legal licences — andrew @ 7:12 pm

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.

Legal code: scope of licence

Filed under: Legal licences — andrew @ 8:33 am

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 PROTECTIONAND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

In South Africa performances are protected by separate legislation, the Performers’ Protection Act 11 of 1967. This Act was amended by the Performers’ Protection Amendment Act, 2002 largely to harmonise it with World Trade Organisation commitments.

The Performers Protection Act does not refer to ‘works’ or’ copies’ but to ‘fixations’. Since it creates a separate category of rights it is suggested that it should be specifically referred to it in the licence. Although it could be argued that the phrase “other applicable law” includes Performers Protection might be too narrowly construed.

Legal Code: Heading and Disclaimer

Filed under: General, Legal licences — andrew @ 5:54 am

The Draft South African Legal Code is headed:

Attribution-NonCommercial-ShareAlike Draft ZA 2.0

Although a South African 1.0 licence has not been released, the legal code for the first licence is based on the 2.0 version of the Universal Licenceand its Legal Code . To show that we have followed the 2.0 version of the universal licence we suggest using 2.0 as the designation for the licence.

The legal code contains a disclaimer of liability.

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN “AS-IS” BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

The phrase “as is” is not generally used in South African law so it is suggested that the phrase “CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN “AS-IS” BASIS” that appears in the universal legal licence be omitted from the South African legal code.

Do the words “CREATIVE COMMONS” suffeciently identify Creative Commons South Africa?

Open Source Drafting

Filed under: General, Legal licences — andrew @ 5:14 am

Lawyers especially common law lawyers have a great respect for precedent and not only do courts follow precedent but lawyers have traditionally used precedents in drafting legal documents. These tend to get handed down from one lawyer to another, being modified all the while, and tested in courts from time to time.

Thus most legal documents are the result of the combined effort and experience of many lawyers. So in a sense, lawyers have always been engaged in open source drafting. This plog or project log just makes the whole process more explicit. Please help to make South African Creative Commons licence reflect the combined ingenuity and experience of South African copyright lawyers and our creative community.

The Open Law Project at Harvard’s Berkman Centre for Internet and Society is engaged in a similar process of collaborative drafting but for purposes of litigation.

I’ll be publishing the various portions of the Draft South African Creative Commons Licence on this log, so that we can take each piece apart and see how works. Since I expect many commentators will be lawyers we’ll probably argue about it a bit.