Since 2001, the non-profit organisation Creative Commons has been making a series of licenses available ('Creative Commons licenses', or 'CC licenses' for short), which aim to facilitate the legal sharing and re-use of creative works protected by copyright. In practical terms, these CC licenses are a set of standardised licensing terms, which can be used to easily communicate under which conditions the author allows the use of such works (including texts, songs, movies etc). One of the aims of the licenses has always been to ensure that they could be used (and enforced) globally on equal terms.
As reported by EDRI (among others), the Commercial Court of Nivelles issued a decision on 26 October 2010 (Scribd embedded below, or for an external PDF version click here), in which it ruled that one of these CC licenses could be enforced against infringing use. In this case, a song of the folk band Lichôdmapwa had been made available via the website Dogmazic, under the CC license BY-NC-ND. This license allows re-use of the work, provided that the authors (the members of the folk band) are properly credited (BY), that no commercial use is made of the work (Non-Commercial, NC), and that no derivative works are made (Non-Derivative, ND). However, the organisers of the Festival de Théâtre de Spa had used a 20-second snippet of the song in an advertisement which was aired a total of 415 times, which the band argued violated all three restrictions.
After explicitly examining the enforcability of the CC BY-NC-ND license, the Court agreed that this use violated the copyrights of the band members, referencing similar decisions in the Netherlands, Spain and the United States. The festival organisers had already offered 1.500 EUR as an amicable settlement; however, the band members demanded 10.380 EUR (12 EUR per broadcast of the song, and 1.800 EUR for each of the three non-respected CC restrictions), and declined compensation on the basis of the commercial fees that would have been charged by rights holders organisation SABAM. However, the court decided to mitigate this demand on the basis that it would be contradictory to calculate damages on the basis of commercial fees far exceeding those charged by SABAM, when the band itself had a clear non-commercial emphasis. This reasoning is somewhat surprising, given that the use of noncommercial CC licenses does not preclude any commercial intent within the band members (who may indeed be looking to monetize their works by offering additional licenses).The Court finally awarded damages in the amount of 1.500 EUR per breached restriction, or 4.500 EUR in total.
Ultimately, the decision as such is not surprising, given that CC licenses have become increasingly well established and accepted both in creative circles and in legal doctrine. However, the case does serve as a useful reminder that the availability of CC works (or indeed, any works) on the Internet does not mean that they can be freely re-used for any desired purpose.