Thursday, June 14, 2007

Legal Day

We've had some excellent discussion on the first day of the conference, which has been an unofficial start before the summit fully begins tomorrow (in other words, licence geeks get together and throw around ideas).

The first session was an extremely useful description from Lucie Gibault and Paul Keller of the re-licensing issue experience in the Netherlands, which has already ported the 3.0 licences into a Dutch version (but has not been launched yet). We received a set of instructions, tips and recommendations to project and legal leads on how to incorporate the v3.0 changes. Mike Linksvayer also presented instructions and updates on the technical aspects of the licence.

The second session brought an amazing paper from Giorgios Cheliotis, who presented a statistical analysis of the actual licence usage, particularly the ported licences. I will link to the paper when I have access to it. Mike Linksvayer also gave a great run-through some of the statistics, made relevant by the fact that national jurisdictions are not particularly popular, which places things into perspective.

The third session started some of the fireworks. I presented on enforcement, one of my favourite topics, where I spoke about contract formation problems. I was pretty intimidated by the fact that I was speaking after Lessig, who is always his amazing self. To me, the most important piece of news of the entire day was that Creative Commons is now back in the list of "Free Licences" published by the FSF. Comments on this session were provided by Lawrence Liang and Ronaldo Lemos.

Mireille van Eechoud presented an excellent introduction to International Private Law issues, which prompted a lively discussion on whether CC is a contract or a licence. This generated a clear split between common law and civil law systems, with all of us from civil or mixed jurisdictions stating that of course the licences are contracts, with the common law systems disagreeing. Most of us walked away like Galileo, muttering "but it is a contract!"

Paul Keller and Melanie Dulong de Rosnay gave their now yearly report on collecting societies, followed by a very brave David Uwemedimo from CISAC, who presented a very balanced view on where collecting societies stand with regards to CC. I'm sympathetic to people who present to a hostile audience, so I think David did quite well, although I disagreed strongly with his view of creativity. One of my favourite memes is about how the Internet and user-generated content is the result of new sharing ethics online, where CC would be the licence of choice for those at the end of the Long Tail. To think of creators as only those who make a profit or make a living of their creators is entirely wrong in my opinion. We are all creators, even those of us who make their poor musings on their pyjamas every morning.

On the social front we had an excellent night where everyone brought liquor from their countries of origin, which means I'm not feeling at my best today (and from the comments received this morning, I don't look too good either).

Update: Carolina Botero made a very complete and competent report (in Spanish).

1 comment:

Aurelio Lopez-Tarruella Martinez said...

Querido Andres,
thanks very much for the brief but complete summary of the conferences of the summit.
The Private international law question about the qualification of the creative commons as a license or as a contract seems very interesting. In the end, as you all may seem to agree, it's a contract. Even more if we take into account that most of the terms that are used in the relevant PIL instruments (CISG, EC Rome convention, EC Brussels I Regulation) are "autonomous notions". That is they have a particular meaning for those instruments which may be different from that of the national laws. In this respect, in my opinion, all these instruments will accept creative commons as contracts.
A related PIL question concerning IP licenses is what happen in situations where the licensee does not comply with a prohibition imposed in the contract. Say, for instance, a prohibition to distribute the software. If that obligation is breached, the licensor has two options to file a complaint: breach of the contract (since he did not comply with the contractual obligation) or infringement of copyright (since he was not allow to distribute the software). This opens great possibilities to what we PIL lawyers call "forum shopping" (the complaint can be filed before the courts of the defendant domicile, the place of the performance of the obligation in question, or the place where the harmfull event occur) and "law shopping" (the law of the contract will apply in the first case, the law of the place where protection is claimed in the second).
Anyway, the issues raised by Mireille van Eechoud in her conference are really interesting. It is nice to see that othe PIL lawyers are also interested in these kind of questions.