Creative Commons license upheld in Belgian court

By Aurelia Schultz

The Creative Commons licences are free legal tools that anyone can use to share their copyright works more openly.

In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under a Creative Commons Attribution Non-Commercial No Derivatives license (CC BY-NC-ND 2.0 Belgium). Several years later, one of the band members happened to hear about 20 seconds of the song, which has a total duration of 3 minutes 20 seconds, on an advertisement for a theater and festival company. Recently, Lichôdmapwa was awarded 4,500 Euros for the infringement of “Abatchouck”.

When Lichôdmapwa first heard their song on the radio, they contacted the theater company (Le Festival de Théâtre de Spa, or The Spa Theater Festival) to see if they could negotiate an outcome favorable to all. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

The band’s claims

Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. According to them, the theater had:

  1. modified the original work to make it fit in the commercial, violating the No Derivatives provision.
  2. violated the Non-Commercial clause by using the work in an advertisement.
  3. violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages and as well to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine”.

The theater company’s defense

The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, Société d’Auteurs Belge – Belgische Auteurs Maatschappij (SABAM), the band had no rights to collect payments for the music’s use.

The court’s decision

Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses, citing Dutch, Spanish and American courts as others that have also held CC licenses to be valid. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license.

In addition, the website from which the theater downloaded the music, www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

Even though the band was not part of SABAM, the court held that they still suffered damages. And although Judge Vandeput did not award Lichôdmapwa the 12 Euros per distribution and 1,800 Euros per license term violated that they requested or the magazine print request, she did award the band 1,500 Euros per license term violated.

Full text of the case (in French): Lichôdmapwa v. L’asbl Festival de Theatre de Spa

About the author

Aurelia Schultz
Aurelia is a private practitioner based in Milwaukee, Wisconsin. Her practice includes transactional work and litigation in the areas of copyright, trademark and family law. Formerly in-house counsel at Creative Commons, Aurelia is intimately acquainted with open licensing and the Creative Commons (CC) suite of licenses, and has helped teams in over 50 countries localize the suite for their national laws. She has also worked with other types of open licenses, including open-source software licenses. She assists clients with copyright registrations, trademark and copyright enforcement and choosing the correct open license for their needs. Aurelia may be reached at aurelia[at]schultzlaw.us.