The IPKat is grateful to Jonathan Mitchell QC (Murray Stable and Scottish Commons project lead) for tipping him off about a Dutch case enforcing a Creative Commons licence. Jonathan writes:

A Dutch magazine, ‘Weekend’, illustrated an article with photographs taken from the photographer’s Flickr public website at http://flickr.com/photos/adamc1999/ . As is usual on flickr, the photographs were published under a Creative Commons licence which did not permit commercial re-use, and there was a link to this licence on the webpage. The photographer, Adam Curry, sued Weekend’s publishers, Audax, for copyright infringement in the Netherlands. Audax argued that it was misled by the flickr notice 'this photo is public'; that the link to the CC licence was not obvious; and that Weekend had assumed in good faith that no authorisation from Curry was needed. Moreover, Curry had not incurred any damages by the publication of the photos in Weekend, since the photos were freely available to the public on flickr.The Court rejected Weekend's defence, sustaining the argument that the effect of the link to the Creative Commons licence was that the limitations in that licence applied, and awarded damages of €1000. The decision is noteworthy as the first decision of a European court on the practical effect of a Creative Commons licence on material published on the internet and dealing with the common assumption that any such material automatically falls into the public domain.The full text of the Dutch court’s decision is at http://tinyurl.com/q4fqh (click Printbarie versie).

Key passage in English:

"All four photos that were taken from www.flickr.com were made by Curry and posted by him on that website. In principle, Curry owns the copyright in the four photos, and the photos... are subject to the [Creative Commons] licence . Therefore Audax should observe the conditions that control the use by third parties of the photos as stated in the licence . The Court understands that Audax was misled by the notice 'This photo is public' (and therefore did not take note of the conditions of the licence ). However, 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. Had it conducted such an investigation, Audax would have clicked on the symbol accompanying the notice 'some rights reserved' and encountered the (short version of) the licence . In case of doubt as to the applicability and the contents of the licence , it should have requested authorization for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, and has assumed too easily that publication of the photos was allowed. Audax has not observed the conditions stated in the licence [...]. The claim [...] will therefore be allowed; defendants will be enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs in accordance with the conditions of the licence ."

There’s a comment at http://tinyurl.com/zc8jr .

The Creative Commons UK website at http://www.creativecommons.org.uk/ seems to be out of commission at the moment, but its international site at http://creativecommons.org is OK. It recently published a Scottish edition of its licences and an English edition should be published very shortly.

The IPKat realises that this is an important case and that the court does make reference in the paragraph quoted above to the terms of the licence. However, the court starts from the position that this is a work that is protected by standard copyright and that’s where the protection against commercial use stems from. The real test of Creative Commons licences will be when the exceptions that they attempt to impose are put before the courts.

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