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Dutch court upholds Creative Commons licence

Unambiguous win for Adam Curry

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A Dutch Court has ruled that photos posted onto photo-sharing site Flickr under a Creative Commons licence should not have been reproduced by a gossip magazine without the permission of the poster.

The case concerned former MTV VJ and podcasting guru Adam Curry, who published photos of his family on Flickr under a Creative Commons Attribution-Noncommercial-Sharealike license.

Founded in 2001, Creative Commons is a non-profit US corporation based on the notion that some people may not want to exercise all of the intellectual property rights the law affords them.

Its aim is to encourage creativity and innovation by paving a middle ground between "All rights reserved" and anarchy. It describes this as "Some rights reserved".

Inspired partly by the GNU General Public License developed by the Free Software Foundation, Creative Commons has drafted licences that give the public some rights to use and manipulate the work of authors and artists, while allowing the authors to retain some rights, such as those permitting commercial exploitation.

On this occasion the licence allowed material to be reproduced for non-commercial purposes, so long as the reproduction gave credit to the original author of the material.

However, Dutch tabloid Weekend reproduced four of the photos in a story about Curry’s children, in breach of the licence, and Curry sued for copyright and privacy infringement.

In its defence, Weekend argued that it was misled by a notice on the website stating "this photo is public" (which is a standard feature of all Flickr images that are viewable by the public), and said that the link to the licence was not obvious. Weekend had assumed that no authorisation from Curry was needed, it said.

Audax, the publisher of Weekend,, argued that it was informed of the existence of the licence only much later by its legal counsel.

The Court rejected Weekend’s defence and, according to a translation by the Creative Commons, held that the photos were subject to the licence and that Audax should have followed its conditions.

“It may be expected from a professional party like Audax that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet,” said the District Court of Amsterdam.

The company faces a fine of €1,000 per photo if it publishes any of Curry’s copyrighted pictures without permission again, Curry said in his blog.

Paul Keller, Public Project Lead for Creative Commons in the Netherlands welcomed the ruling:

“We are very happy with this decision as it demonstrates that the millions of creators who use Creative Commons licences are effectively protected against abuses of their willingness to contribute to the commons,” he said.

Lawrence Lessig, Creative Commons' CEO and chairman, added: “This decision confirms that the Creative Commons licensing system is an effective way for content creators to manage their copyrights online.”

“The decision should also serve as a timely reminder to those seeking to use content online, to respect the terms that apply to that content,” he said.

See:

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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