History and underlying ideas of Creative Commons
Creative Commons (CC) was founded in the United States in 2001 and since then the ?some rights reserved„ logo of Creative Commons has been applied to over 3 million US web sites. Creative Commons is based at Stanford Law School and chaired by Lessig. The CC project was set up to counteract the threat of a diminishing public domain as a result of the growing world-wide lockdown on copyrighted works by (multimedia) corporations and increasingly stringent draconic anti-piracy laws adopted by governments. The CC project also points out that the availability of creative works on the Internet may be a source of inspiration for the development of entirely new forms and works of art.

Creative Commons seeks to strike a balance between strict regulations and unprotected use of works within the boundaries of the existing copyright law system. The underlying idea is that creatives will once more be stimulated to freely share and distribute their works, i.e. to allow broader (and cheaper) access to their work. This new (or perhaps we should say ?old„) approach to copyright law is also a response to the technological developments of the past decades. Digital innovations enable people across the world to remix, pastiche and transform existing works into new works of art. Based on the general idea that new art always draws its inspiration from existing art, this positive reflection on the reuse of works is one of the pillars of the Creative Commons programme.

On 18 June 2004, the Dutch versions of the American Creative Commons (CC) licenses were launched in the presence of Creative Commons co-founder Prof. Lawrence Lessig. The project leads of the Netherlands were Prof. P. Bernt Hugenholtz and Nynke Hendriks (Institute for Information Law (IViR), University of Amsterdam). With the introduction of localized CC licenses, the Netherlands followed in the footsteps of Finland and Germany that were the first European countries to introduce their national versions of the CC licenses. Japan and Brazil launched their CC licenses earlier this year and many other countries are currently localizing the CC licenses as part of the ?iCommons (International Commons) movement„.

During the porting of the Dutch CC licenses, Creative Commons already introduced some new varieties on the original licenses, including a sampling license geared to the reuse of works for new sampling creations. The regular introduction of new licenses (and updated versions of existing licenses) forms part of the idea of continuous evolution underlying the Creative Commons project, in line with the ongoing technological developments on the Internet.

Features of the CC licenses
Since 18 June 2004, it is therefore possible for Dutch writers, musicians, filmmakers, webmasters and the like to publish their work on the Internet using one of the Dutch Creative Commons licenses. The CC licenses enable creatives to make their work available to others while retaining their traditional copyrights by applying specific terms of use. This concerns the following four (optional) terms:

1. Attribution
The licensor‚s credits must be clearly visible whenever his/her work is used by others;

2. Derivative works
Others are or are not allowed to make derivative works of the licensor‚s work. Derivate works are works based upon the work, such as a translation, musical arrangement or a motion picture version in which the work may be recast, transformed or adapted;

3. Using the work for commercial or non-commercial purposes
Others may or may not use the licensor‚s work for commercial purposes;

4. ShareAlike
When others use the licensor‚s work, they in turn must make their work available to the licensor under the same conditions.

These terms of use have been designed to provide the creator of a work with the freedom to distribute his/her work via the Internet under customisable licenses, while still being able to invoke his/her copyright where it is violated. The licenses are furthermore geared to individual creators rather than companies and thereby return to the roots of the original copyright law system which intended to protect the individual creator and to stimulate a creative and intellectual climate by doing so.

An important aspect of the Creative Commons licenses is their customer-friendly application. The CC site presents the licenses in three (i.e. human-readable, lawyer-readable and machine-readable) versions of which the human-readable version usually suffices. In plain language, this version lists the four optional terms under which the creator may publicize his/her work. All that is then required is clicking the preferred terms and the license is automatically compiled and linked to the creator‚s site. In addition, cartoons explain how the licenses work in practice.

The porting of the CC licenses into Dutch law
The iCommons project commenced in March 2003 aiming at a worldwide application of the CC licenses. To date, countries ranging from Japan to Brazil and Australia have introduced their national CC licenses, and all EU countries should ideally have launched their licenses by the end of the year.

The porting of the licenses into national laws is carried out by an acknowledged copyright institution or a law firm in the country concerned (i.e. the project lead). The project lead produces a first draft of the ported licenses. This draft is posted on the CC site inviting a public discussion, after which the final draft is produced. An important premise for the localization of the CC licenses is that all licenses across the world should be as close to the (American) original as possible. They may only differ from the original licenses when absolutely necessary, and not on grounds of policy or philosophy.

A consequence of this strict rule of uniformity is that the Dutch licenses have been drawn up in an American style and as a result occasionally have a distinctly ?non-Dutch„ feel about them. Although the centrepiece of the licenses, i.e. the four optional terms of use, has remained intact, other provisions of the licenses had to be adapted to Dutch contract and copyright law. In addition to the 11 licenses, it is also possible to opt for the ?Public Domain Dedication„ in which the creator dedicates his/her work to the public domain, thereby waiving all copyrights.

Below, five provisions of the original licenses and their conversion into Dutch law are discussed to illustrate the porting process of the Dutch licenses.

a. Definition of legal terms
All licenses consist of eight provisions including a definition of terms. One of the changes that had to be made concerned the American use of the term copyright.
Copyright under US law is a broader term than Dutch copyright, encompassing performing rights, amongst other things. Such rights come under the separate neighbouring rights regime in the Netherlands. Like the other EU countries, the Netherlands furthermore recognizes separate database rights which may also be relevant to CC licenses in respect of websites. US law does not (yet) recognize database rights as such. The Dutch licenses therefore refer to ?copyright, neighbouring rights and database rights„ where the original licenses use the term copyright.

b. The payment of fees
A striking aspect of the current CC licenses is their non-profit nature. The licensor makes his/her work available to others under the stipulated terms, but no money changes hands. Article 5 explicitly states that the licensee does not have to pay ?any royalties, compulsory license fees, residuals or any other payments„. However, in the Netherlands some statutory fees may apply which the licensee will be obliged to pay. This concerns in particular the so-called reprography fees which are laid down by law and are payable upon copying (parts of) a work protected by copyright. Such fees may be included in the price of data carriers (CD-ROM‚s etc) where it concerns copies for private use, but they may also be payable per copied page, for example where libraries or universities make copies.

c. The transfer of future rights
Another provision that raised questions in the original license concerns the transfer of future rights. Article 3 provides that the rights granted to the licensee may be exercised in all media and formats ?whether now known or hereafter devised„. The transfer of future rights continues to be a complicated issue in the Netherlands. German law is lucid in this respect, i.e. it is not allowed. In Dutch law the exact scope of the rights that may be transferred continues to be a point of debate. In 1997 a Dutch court ruled that a license concerning the transfer of copyrights did not include the transfer of rights (in this case Internet rights) that were unforeseen upon concluding the license. This may well be interpreted as a prohibition of the transfer of future rights. In the light of this interpretation, Article 3 in the Dutch licenses has been confined to the transfer of existing rights.

d. The automatic contract principle
The original licenses are based on the principle of the so-called automatic contract. By the mere exercise of any rights to the work provided by the licensor, the person exercising those rights is bound by the terms of the applicable license. Contrary to US law, a license is at all times regarded as a contract under Dutch law and contract law therefore applies. Dutch contract law does not recognize the automatic contract as such. The (contents of the) license must have been made sufficiently clear to the recipient beforehand for a contract to be legally valid. This requirement has therefore been added to the original provision.

e. Waiving copyright
Finally, in addition to the 11 licenses that provide the licensee with specific rights of use, a creator may also opt to waive all copyrights and dedicate his/her work to the public domain by means of the ?Public Domain Dedication„. Waiving one‚s copyright is not possible under Dutch copyright law. A creator may however state that he will not exercise his/her copyright (i.e. the right to reproduce the work and to communicate it to the public) in any way. This statement is irrevocable and, for all practical purposes, will therefore amount to a public domain dedication in the sense that others will be free to reuse the work in whichever way they like without any obligations on their part.

Bottom line
The Creative Commons licenses intend to stimulate the distribution and reuse of copyrighted works by means of customisable licenses. It is up to the individual author to decide under what conditions he/she wishes to distribute his/her work. In a way this signals a return to the roots of the original copyright law system whereby it is up to the individual authors (rather than corporations and copyright organizations) to determine whether and how their work is copied and made available to third parties. Another important aspect of the CC licenses is their customer-friendly application. Individual authors are able to apply the licenses to their work by following a few simple steps on the Creative Commons website. Moreover, the license is available in three versions: human-readable, lawyer-readable and machine-readable as a result of which the terms of the licenses are clear to lawyers and non-lawyers alike. The Dutch CC licenses differ from the original US licenses in various ways although it must be noted that the essence of the four central terms of the licenses has remained unaltered.


About the author: Nynke Hendriks studied Information Law at the Institute for Information Law (IViR), University of Amsterdam, has contributed to some research projects at the IViR and is also a translator/editor Dutch/English.

Status: first published in INDICARE Monitor Vol. 1, No 2, 30 July 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=28