(Finally, an) update: As of February 2008, this blog was no longer maintained. With a long gap, I am joining the conversation again, this time on Twitter: I am @createlaw.

Create Law is, not coincidentally, also the name of my new firm that I started March 1, 2009. After more than 7 years in the field, I look forward to continuing to do my part in developing the (practice of) law along that most interesting of intersections between IT and IP law, and to cut my own furrow.

Thank you,
Olivier Oosterbaan

PS I am keeping this blog and domain around for reference/archival purposes. I have changed it’s license to CC BY (Attribution 3.0 Netherlands) on the occassion.

Technology Law Culture (Netherlands!) is going on extended hiatus for the coming six months. I have come to this decision seeing how recently I have not been able to give TLC — and by extension you, the reader — the care and attention (dare I say, the TLC?) it deserves.

Consequently, I am going to put this blog on extended hiatus for the coming six months. That’s right, six months. Technology Law Culture (Netherlands!) will be back — with more “Nerdfighter Power” — in August 2008.

Until then, may I point you to some of the many fine blogs in this blog’s blogroll: Video Game Law Blog; Internetrecht: actualiteiten en commentaar (in Dutch); Singularity; New Media Law; and The Law Factor (in Dutch)?

See you in August,
Olivier Oosterbaan

(Picture: DerrickT.)

On 20 December 2007, the Dutch Ministry of Economic Affairs published (pdf) an English translation of its 17 September 2007 plan entitled “The Netherlands Open in Connection” announcing the steps that the Dutch government will take in the coming years to further the adoption of open standards and open source for software in use in the Dutch public sector.

In this month’s post, TLC will highlight some key points from the plan, but not before adding a little background on its history.

History: 2002 Lower House Motion on Open Standards and Open Source
The plan currently before us is the follow-up from the Ministry of Economic Affairs to a motion adopted by the lower house of the Dutch parliament in November 2002, requesting that the government (the executive) make (paraphrased) a maximum effort to ameliorate the situation that, since the supply-side of software is highly concentrated, sub-optimal use is made of the potential benefits of software to society and that high switching costs exist; and furthermore requesting that the government ensure that by 2006 all software in use in the public sector complies with open standards; and finally requesting that the government pro-actively stimulate the dissemination of open source software in the public sector, and to this end formulate concrete and ambitious goals.

The 2006 deadline from the motion not having been met, last summer the (new) government was prompted by a lower house committee to formulate steps to further the motion adopted, which resulted in the plan now before us. Most importantly, the plan contains obligations for the public sector to, going forward, use software that supports open standards. In addition, the plan contains the requirement that government bodies formulate a strategy for the adoption of open source software.

Part 1, Open Standards: “Comply-or-explain and commit”
Pursuant to the plan, the Dutch government will promote the use of open standards for use within the public sector. From the report:

“The Cabinet intends to encourage the use of open standards within the public and semi-public sector. The key focus here is: use open standards, or come up with a very good reason why this is not possible, and indicate when open standards will indeed be implemented. This is the principle of ‘comply or explain, and commit’. Through this the use of open standards will be given a firm foundation.”

What is, and what is not, an open standard is often a point of debate. Perhaps for this reason, for purposes of furthering the goals of the Dutch government, a body of it will:

“publish a basic list of open standards (checklist) in January 2008 for the benefit of citizens, businesses and government bodies. This list will then be maintained and further supplemented.”

Those who have in one capacity or another dealt with standard setting bodies may welcome this particular part of the plan.

Further to furthering open standards in general, one standard in particular is supported, whereas government bodies will be required to support the ISO standard ODF by 2008, in advance of switching to ODF altogether in 2013:

“Central Government Departments will from April 2008 support ODF alongside existing file formats for reading, writing and exchange of documents.”

(See also Brenno de Winter here on Macworld, via Slashdot.)

Part 2, Open Source: Preferred When Equally Suitable
Further to concrete goals of furthering the use of open standards within Dutch government operations, the 2007 plan also mentions a number of actions to be taken as regards open source software. More concretely, the plan dictates that:

“All ministries will have developed an implementation strategy by January 2009 for tendering and purchase and the use of open source software – by June 2008 more than half of the ministries.”

And, part of the reason for doing so is that:

“By using more open source software itself, the Dutch government can stimulate activity in the field of open source software. This provides social and economic benefits.”

These are possibly the more important parts of the 2007 report from the Dutch government on the adaptation of open standards and open source. TLC will report on its progress. In the meantime, I would like to invite you to the report (pdf) itself.

(And, off-topic: many thanks again to Arnoud Engelfriet for guest blogging last month. Yay!)

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Dutch Minister for Foreign Trade Mr. Van Heemskerk on the phone, used under permission.)

Recently, I was enjoying a rare quiet evening when my phone rang. No caller ID. At 9:30pm, I wasn’t expecting a telemarketeer, so I took the call. It turned out to be a telemarketeer after all, but a peculiar kind: a police officer told me in a stern voice that I had been seen biking at night without my bicycle lights on. That couldn’t be right: if I had been seen, my lights must have been working!

But when I tried to interrupt the officer to tell him that this wasn’t true, I was in for another surprise. This wasn’t a real officer - it was a voice recording!

Was this a joke by one of my friends? Far from it: officer Van Geel was part of an official Dutch campaign to promote bike lighting.

We Dutch like our bikes. We have millions of them, but virtually none of them have a working head- or taillight. This causes over 10,000 accidents, killing 40 and wounding 500 cyclists every year. Although the law has been on the books for decades, the Dutch consider it unfair to suddenly start ticketing people for 20 Euros. This prompted the government campaign “Lights on!” as part of their general “Gets you home” promotions for road safety. That campaign makes sense. But this part of it didn’t.

Telephone spam has been illegal since 1998. Before that, people would get unsolicited telephone calls with prerecorded messages they couldn’t interrupt or turn off. You’re thinking, why not hang up? The computer would just call back a minute later. Most annoying indeed. Thankfully, Directive 97/66/EC and its Dutch implementation outlaw the use of “automated calling systems without human intervention (automatic calling machines) or facsimile machines for the purposes of direct marketing” unless the operator had prior consent. And yes, that includes messages in the public interest.

Still slightly annoyed at being disturbed during the one free evening this month, I blogged about it and returned to my beer. The next morning, my stats had gone through the roof: Dutch shock blog Geenstijl had picked it up! Soon thereafter news site Webwereld opened with a response by the organizers: this was educational so it wasn’t spam. And besides, one of your friends had to have given them the phone number first.

Excuse me?

Yes, that was exactly how this campaign was organized: go to a website, enter your friend’s phone number and they will be called by officer Van Geel. Sure, there was an attempt to get consent by e-mail from the victim first, but that was so easy to fool it wasn’t even funny.

Is this how to teach kids to treat their friends’ personal data? The campaign was aimed at children, after all, including a nice big poster for schools. Kids should be careful whom they give their personal data to, except when someone who looks like a cop asks for it apparently. Right. Not surprisingly, this tattling aspect caused big criticism from the Dutch organisation Parents Online and even from political parties.

It thus shouldn’t come as a surprise that the next Monday, officer Van Geel got an early retirement.

Arnoud Engelfriet is a Dutch IT lawyer and a European patent attorney. He writes about law and technology on his website IusMentis.com. His bicycle lights are in perfect working order.

Yay! IT law now has it’s own wiki, the appropriately named: The IT Law Wiki. Professor Michael D. Scott, of Southwestern Law School, and author of the Singularity blog, initiated the wiki. The wiki, less than a month old, already contains 591 entries, on subjects such as the CAN-SPAM Act, chronologies of events from the 1960’s onwards, and on open source and closed source.

Actually, the above examples show three things. One, many entries are as yet stubs and need expanding. Two, the wiki appears under-organized (as in, spontaneously organized), which should resolve over time and whereby the individual entries should also become more valuable. Three, the current bias of the wiki to U.S. law. This is not the fault of the U.S. authors, and in fact only something contributors from outside the United States can remedy. It’s also the users that can remedy the first and second points mentioned.

So please, go over to itlaw.wikia.com, look around, get a feel for the place, and see where you can give and take information.

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Screen grab from the IT Law Wiki.)

Een paar weken terug luisterde ik naar het radio-programma De Elektronische Eeuw van Herbert Blankesteijn op BNR waarin Jan Willem Broekema van OSOSS (Open Source als Onderdeel van de Software Strategie) onder andere vertelde over het boek “Open gemeenten” dat OSOSS recent had uitgegeven. OSOSS:

Dit boek, waarin naast de inventarisatie meer dan 30 praktijkvoorbeelden beschreven zijn, moet de gehele publieke sector inspireren na te denken over nut en noodzaak bij aanbesteding van ICT: een dwarse zoektocht door alternatief denken. Onder die titel is het eerste exemplaar van “Open Gemeenten” op 17 september 2007 aangeboden aan staatssecretaris Frank Heemskerk van Economische Zaken.

In de uitzending noemde de heer Broekema dat het boek niet meer in gedrukte vorm verkrijgbaar was, maar dat het onder een Creative Commons licentie ter beschikking was gesteld. Zonder verdere informatie op dat moment over het soort CC licentie waaronder het boek ter beschikking was gesteld, leek het mij een goede gelegenheid voor een CC verdienmodel experiment! Wie zou er geld kunnen vragen voor een investering (in tijd en middelen) in het beschikbaar maken van een her-uitgave?

Omdat het boek uiteindelijk onder een BY-NC-SA NL licentie ter beschikking is gesteld, ik in elk geval niet. Dit gebaseerd op de tekst van de licentie zelf, en op de richtlijnen van Creative Commons, zoals hier eerder besproken. Wel kan ik vragen om een vrijwillige bijdrage, bijvoorbeeld aan Creative Commons, op dit moment bezig met een pledge drive.

De onmogelijkheid om bij CC NC licenties geld te vragen voor de investering in tijd en middelen voor het heruitgeven wijkt af van bijvoorbeeld de GPL, welke licentie heeft geleid tot alternatieve verdienmodellen voor free software. Bijvoorbeeld, Red Hat die een (gratis) linux distributie ter beschikking stelt, en geld vraagt voor de cd en handleiding of diensten. (Let wel, ik zeg niet dat OSOSS haar boek niet onder een NC licentie ter beschikking had moeten stellen.)

De incentive om tijd en middelen ter beschikking te stellen in het her-uitgeven van NC werken zal in dit geval ergens anders vandaan moeten komen. In mijn geval is het whuffie, en omdat (de her-editie van) het boek al was klaargemaakt bij deze alsnog de link naar lulu.com, waar je het boek in een zwart-wit uitgave voor € 6,01 (+ shipping) kan nabestellen, hier.

English Summary

(The above post explains how I have made available, through a print-on-demand service, a book from OSOSS, a Dutch organization that promotes “the use of open source as part of the software strategy”. This inspired by a radio-interview with a representative of OSOSS on Dutch radio, in which he mentioned that the book was out-of-print, but licensed under a CC license. As the dissemination of CC licensed works had been on my mind – and in the interest of science! – I decided to make the work available in a re-edition, and possibly ask for a small mark-up (that I would then give away). However, as the book was originally licensed under a BY-NC-SA license, I could not ask for anything other than a voluntary contribution. (Which is logical in a way.) If anything, this little experiment shows how there currently are limited incentives for third parties to invest in making available re-editions of (or derivative works based exclusively on) NC licensed works. Mind, I am not saying that this is a bad thing, just something that is there.

UPDATE: Naar aanleiding van een post op Livre, een update. Misschien was ik hierboven wat te kort, maar voor het eigenlijke maken of bezorgen van de heruitgave van een NC gelicentieerd werk mag wel geld gevraagd worden, zolang dit maar is:

for a service being provided to (in the case of, for example, a for-profit copy shop) or by an allowable NC user incidental to the use of the NC-licensed work (e.g. course packs provided by an educational institutions)

(Zie de Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses van Creative Commons US onder C.)

De printer mag dus geld vragen voor de dienst van het drukken; ik niet voor de dienst van het klaarmaken. Althans, dit volgens de bovengenoemde richtlijnen van wat NC inhoudt. Met de auteursrechthebbende mag ik altijd iets anders afspreken, maar dit verhoogt de transactiekosten. Dit zoals al eerder hier besproken op TLC. Afijn, je kan het boek bestellen voor € 6,01 plus verzendkosten, met € 0,0 mark-up voor mijzelf. Het is een interessante uitgave, tenminste als je liever over Asterisk leest, dan dat je een Asterix leest ^^.

(Above update to clarify that I myself do not charge any mark-up for making the mentioned book avialable through print-on-demand, and that the in-store price is for the printing and shipping only, which is allowed under the interpretation of Creative Commons of the NC licenses. This in response to a post on Livre.nl that might have confouded this part of my post.)

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: A small part of the cover of the book in question. Original work by OSOSS under a BY-NC-SA 3.0 NL license; derivative work (insofar there is one) by Olivier Oosterbaan, and consequently also under a BY-NC-SA 3.0 NL license.)

With this month’s post TLC will talk a little about a pilot project launched by Creative Commons Netherlands and Buma/Stemra, the literally unique Dutch collecting society for broadcast and mechanical rights for music authors. In short, under the pilot, Buma/Stemra will allow its member artists to make their works available using non-commercial Creative Commons licenses. (This was previously not allowed under the Buma/Stemra agreements which, as is common for collecting society agreements, required exclusivity for the collective licensing and collection of royalties and levies.) Conversely, artists who have previously relied on non-commercial CC licenses for dissemination of their work can now become a member of Buma/Stemra so that the organization may collect royalties and levies for commercial uses of their works.

The topic for this post is perhaps old news – although almost untypically topical for TLC, yet a return to developments in the Netherlands – and has been covered elsewhere. So, instead of repeating the news, I would like to focus on one particular aspect of the pilot, the Non-Commercial part. First though, a quote or two from the September 2007 issue of the Buma/Stemra corporate magazine that arrived in the mail just the other day.

Let’s Hear It From Buma/Stemra and Creative Commons

About the Buma/Stemra and Creative Commons Netherlands pilot scheme, Cees Vervoord, Chair of Buma/Stemra, said:

“This initiative is in keeping with our efforts to provide optimal service to our rights holders. I also regard this unique and innovative collaboration between Buma/Stemra and Creative Commons as a first step towards more freedom of choice in the area of exploiting music copyright in the digital world. This initiative makes it abundantly clear to very one that we are open to innovation.”

Paul Keller, of Creative Commons Netherlands, said, among other things:

“[…] [S]ince you are using a licence which is legally sound, you can protect yourself from any unauthorized commercial exploitation of your work.”

(Both quotes from the September 2007 issue of the Buma/Stemra corporate magazine, pages 22 and 23.)

Non-Commercial Explained For This Purpose

I would like to highlight one particular part of the Buma/Stemra CC pilot, and that is the attention to detail in defining what is non-commercial for the purposes of the pilot. In short, non-commercial is not a use for which you would normally expect to get paid. Or, non-commercial is not where Buma/Stemra would normally collect royalties or levies. This in addition to the distinction based on for-profit and not-for-profit users – already discussed here at TLC – that Creative Commons makes. Buma/Stemra and Creative Commons defined “Non-Commercial” for purposes of the pilot as everything that is not “commercial use”, which they defined as follows:

“Within the scope of the pilot between Creative Commons Netherlands and Buma/Stemra, ‘commercial use’ should be taken to mean the following: Every use of the Work by for-profit institutions is qualified as ‘commercial use’. In addition, within the scope of the pilot, distributing or publicly performing or making available online the Work against payment or other financial compensation (including the use of the work in combination with ads, publicity actions or other similar activities intended to generate income for the user or a third party) is qualified as ‘commercial use’. Within the scope of the pilot, ‘commercial use’ also includes the distribution or public performance or having broadcasting organisations make the Work available online, as well as using the Work in hotel and catering establishments, work, sales and retail spaces. This also applies to organisations that use music in or in addition to the performance of their duties, such as, for example, churches, schools (including dancing schools), institutions for welfare work, etc. Separate licenses are available from Buma/Stemra for such kinds of use.”

(From the: Fact Sheet Pilot Creative Commons Netherlands and Buma/Stemra [pdf]; from the Institute of Information Law at my alma mater, one of the Creative Commons Netherlands partners.)

This definition is interesting in light of the earlier posts “Japan Picture Book, 3: Non-Commercial CC Licenses, But What Does It Mean?” and “Japan Picture Book, 4: Non-Commercial CC Licenses, But What Does It Mean (Continued)?” on this blog, discussing what the “Non-Commercial” module in CC licenses might be understood to mean.

In my opinion, the pilot and its definition of Non-Commercial show three things beyond the definition itself. First, “Non-Commercial” is not a straightforward term, since Buma/Stemra and Creative Commons Netherlands found it necessary to define the term. Second, what is and what is not commercial also depends on the context of the use, more in particular on pre-existing licensing and business models, whereas the last bit of language from the definition follows existing Buma/Stemra practices. Finally, and this is new, parties other than the actual licensors (authors) and the license stewards can define the, in this case, CC licenses further.

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Under a CC BY-ND 2.0 license, by Kennisland. Note: This post was posted on the second Sunday of the month, not the first.)

After looking at the possibility of using non-copyrighted digital reproductions of public domain works last month, this (and next) month TLC will take a detailed look at choosing a suitable (Creative Commons) license for the Japan book. Since I want to account for the possibility to use additional (CC-licensed) art-work from third-parties, I have to take some extra care that the terms of the out-license (the license applicable to the entire work, including my original works) are not incompatible with the in-licenses (applicable to the art of others), and the other way around.

As it will become clear that Creative Commons licenses know a few drawbacks, I will first highlight what the possible reasons for using a CC-license in the first place are. After then describing the different possible uses and distribution methods for which I want to allow now and in the future, we’ll dive right into the different Creative Commons license options (modules), hopefully resurfacing on the other end with a license that fits the purpose.

(Because of the length, this topic will be split into two post, one this month, one next month.)

Why a CC License?

The short answer to why you would want to use a CC license is that they are popular.

The long answer is that they are popular because they are generally permissive, giving others a great degree of liberty to use and re-use the content licensed, which can be appealing to creators. (In my case it is, as I am looking more for kudos/whuffie than money in what is essentially a hobby project. For my purposes, I am disregarding any loss-leading purposes or split revenue models for which you might want to use a permissive – CC or other – license.)

More importantly, the popularity of the Creative Commons licenses means that they are widely used, and like the GPL, many people will end up having a fair understanding of what they mean. Granted, there is a fair amount of discussion about CC concepts themselves and the specific meaning of particular license modules, such as the Non-Commercial (NC) module, previously discussed here on TLC. But, I think this discussion shows that people are invested in the Creative Commons licenses, and work towards a better understanding of the licenses, much like the GPL.

(A more practical point is that if you are looking at others using and reusing your work, applying a CC license, rather than a different permissive license, makes it easier to find your work given the familiarity with the licenses and the CC-focused tools and search options that exist.)

Consider Your Future Use

If I use only my own, original, content I can re-license the work under a less restrictive or more restrictive license depending on my needs, and choosing the right license from the outset is less important. That being said, as you can not revoke a CC license, re-licensing under a more restrictive license will only carry weight if you also control to some extent distribution and/or production of your work.

If I also use content of others, I must make sure that whatever license I end up applying, or would like to apply in the future, does not conflict, in whole or in part, with the license or licenses applicable to the works I use. Carving out or replacing those parts is likely to be a painstaking process. For example, if there is a chance that how I use the works could be seen as Commercial, for example because money changes hands for the hard-copy version, then I cannot use works licensed under a Non-Commercial license.

I also have to consider what kind of uses I would like to allow for, for example whether I will allow others to make derivative works, or distribute or re-use my works commercially. Again, if I use the content of others, I need to look at the terms that apply to those upstream works to make sure that they also allow for such future uses.

Mixing and (Mis) Matching the Licenses

The six major available CC licenses move on a sliding scale from permissive to restrictive (given that even the restrictive one is more permissive than all rights reserved), depending on the “modules” that apply. The order would be, from permissive to a little less so: CC By, CC By-SA, CC By-NC, CC By-ND, CC By-NC-SA, and CC By-NC-ND. (The By-NC-ND versions appears to be the default for many services, including, as it turns out, the Wordpress installation I am using at this blog, and at Flickr, the photo sharing site I use.)

Some CC licenses are incompatible. Consequently, I have to take care that when selecting works of others to use, I do not select works that carry a license that is incompatible with whatever license I would like to use now or in the future. The basic incompatibility is that of ND (No Derivatives) licenses with SA (Share Alike) licenses.

But can I use works that are originally license under a less restrictive license? What if, for example, I would like to license the Japan book under a By-SA license, can I then use works that are licensed under a By license? The licenses say:

You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License.

I think that, since the original work remains available under the By license, and I mention the original license terms for that work, I can license the entire resulting work under, say, a By-SA license.

The other way around is not possible. I cannot apply a By license to the resulting work, and use original works license under say a By-SA license, or a By-NC license.

So, basically, the licenses applicable to the works of third parties that I might use in the book need to be less restrictive than the license under which I would like to make the resulting entire work available. Luckily, not to get lost, there is a useful Creative Commons license compatibility wizard from Creative Commons Taiwan, I can heartily recommend it. (Creative Commons United States has not yet approved any compatibility between CC licenses.)

Now, let’s look at the different CC modules in more detail.

Call Me By Your Name (Attribution)

This is an attribute that all CC licenses share. It is simple, it requires attribution to the creator (or a group or institute since version 3.0). CC By is the simplest, and most permissive of all CC licenses, short of dedication to the public domain. However, you still need to take into account the moral rights / droit moral of the author. As the short version of the By 3.0 license mentions:

Nothing in this license impairs or restricts the author’s moral rights.

I am not sure what the moral rights of an author are in the United States, if any, but in The Netherlands, and from what I understand in most if not all continental European countries, they basically give the author, in addition to a right of attribution, a right of integrity (of the author). This later right allows the author to object to any distortion, mutilation, or other alteration (modification) of the work which might prejudice the honor or the reputation of the author as such.

Since version 3.0 of the licenses, there is, at least in the basic unported (more on that next month) version, a limited non-assert provision (covenant) whereby the author promises, for jurisdictions where adaptations are seen as conflicting with the moral rights of the author, not to assert such moral rights.

Final point. What is a sensible way of complying with the attribution requirement in the context of the book? The CC licenses require that, in addition to keeping intact copyright notices, I provide “reasonable to the medium or means” I use, the name (or pseudonym), name of the work, and “to the extent reasonably practicable” any URI pointing back to the copyright or license information. The URI pointing back would most commonly be a web page. I wonder how reasonably practical it is to provide a list of web addresses, reasonably practical I think.

Next Month: Commercial and Non-Commercial, No Derivatives and Share Alike, and Porting

That’s it for this month. Next month, TLC will look at the other available options, Commercial and Non-Commercial, No Derivatives and Share Alike, and jurisdiction specific (ported) licenses. Until next month!

‡‡ [This is a post from Technology Law Culture:http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Creative Commons License Buttons. See also http://creativecommons.org/policies/.)

This month, TLC will look at the question whether you can use a (digital) reproduction of a work that is out of copyright without specific permission from the party that made the reproduction? First, as background, we will explain why we want to use such a work, and why we prefer or even need to use a reproduction made by someone else. Second, we will explain why explicit permission to use such reproduction might not be necessary as far as copyright is concerned. Third, we will explain why again we will err on what is perhaps the safe side of things, by trying to get specific courtesy permission from the party that made the particular reproduction that will be used in the Japan picture book.

Using a Painting as Illustration of 19th Century Orientalism

At the end of the 19th century, Orientalism was much in vogue. Orientalism entailed a certain fascination with (certain) aspect of cultures of the Levant, the East and the Far East by writers and artist in the West. (Edward Said’s book Orientalism is the book that introduced me to the subject.) An example of this fashion, of which Japonism was a flavor focused on one country, is Van Gogh’s use of an ukiyo-e by Hiroshige as the inspiration for his painting The Bridge in the Rain (1887). Likewise, the Amsterdam painter Breitner, a contemporary of Van Gogh, in his painting Girl in a White Kimono (1884) pictured a young woman dressed in a unmarried woman’s kimono, against a background of a Japanese screen. It is this picture that I want to use as illustration, and as Breitner died more than 70 years ago (in 1923), there is no longer any copyright on the images on his paintings, and they fall into the public domain. But that does not give me access to an image of the painting itself. Luckily, Girl in a White Kimono is part of the collection of the Rijksmuseum in my hometown, Amsterdam. However, having to go and take a picture of the painting so that I may use it as an illustration seems cumbersome. (Apart from the fact that I might have to agree to not photographing the painting when entering the museum; that and I am not sure it is on permanent display during the extensive construction work on the museum currently underway.)

Public Domain Work Equals No Copyright On Reproduction

Luckily, on its website, the Rijksmuseum has made available (medium-resolution) digital reproductions of the work. The Wikimedia Commons site has (what appears to be exactly) the same picture. But can I use that picture? Surely, it was made not so long ago that any copyright applicable to it may have lapsed? But does the picture, the reproduction, of the public domain work, qualify for copyright itself?

Wikimedia has this to say on the matter:

Faithful reproductions of two-dimensional original works cannot attract copyright in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp. This photograph was taken in the U.S. or in another country where a similar rule applies (for a list of allowable countries, see Commons:When to use the PD-Art tag#Country-specific rules).

This photographic reproduction is therefore also in the public domain.

The Wikimedia commons wiki contains a page that lists the position of this issue in several jurisdictions, including the Netherlands. (This is assuming that our applicable jurisdiction is the Netherlands.)

OK In the Netherlands, photographic reproductions have been found not copyrightable in the Van Dale/Romme-arrest, a decision of the Supreme Court of the Netherlands.

The case cited as support dealt with the re-use of (parts of) a dictionary. (Contrary to the U.S. case cited, it is not on point for the re-use of reproductions of works of art.) Where a dictionary is in essence a selection (and presentation) of words naturally present in a language, the high court held in the Van Dale/Romme case that the collection did not qualify for copyright. Consequently, any re-use of it was not sanctionable under copyright law.

Let’s explain. Under Dutch copyright law — and I am not sure in how far this is a particular feature of Dutch law — in order to qualify for copyright, a work needs to have an own, original character and carry the personal imprint of the author. The boundaries of what qualifies as a work is at times debated, and at times extended. (Most recently, extending copyright to the design of jeans — discussed by William Patry here — and perfume; but not granting copyright to a series of police interviews, seemingly adding intent on creation of the creator (sic) as part of the test whether a work qualifies for copyright.)

What does this mean for the pictures that the Rijksmuseum takes of the paintings in its collections? Most likely, that a faithful reproduction of the work does not carry the own, original character and personal imprint of the author (in this case, the photographer), and consequently does not qualify for copyright. The Rijsmuseum’s claim that:

With the exception of storing one single temporary copy in the memory of one single computer and making one permanent copy for the end user, the information on this site may be used only after receiving written permission from the Rijksmuseum. This applies in particular to the multiplication and distribution of pictures and texts and to the framing of pictures and texts in other websites.

might not be correct. (But, there is no case law on point, so you might be testing the extent of the law here.)

But You Might Need or Want A Good and High Resolution Reproduction

Even though it is likely that you can use a reproduction made already available, a particular work might not have been reproduced in a readily available format, or the quality of the reproduction might not be sufficient for your particular purpose.

Consequently, I might want to obtain a higher quality image straight form the source, in this case, the Rijksmuseum:

For the commercial use of pictures, material suitable for reproduction can be ordered (against payment) from the Rijksmuseum’s Photo Archive.

This is getting expensive for a hobby project and it might limit me in how I licence the entire resulting work, but, if only out of personal interest, I am going to find out if and how much the Rijkmuseum would charge for this particular project. More news to follow.

In addition to the above, and perhaps more importantly, as the owner of the reproduced work in question might be unpleasantly surprised by finding a reproduction in a (semi)commercial work, you might want to ask for courtesy permission, copyright or not. This is what I will do in any event.

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Detail of Girl in a White Kimono.)

Last month, TLC looked at what Non-Commercial in the Creative Commons license might mean. After a short explanation on why and how it was important to look at what Non-Commercial might mean, we highlighted the relevant language from the license itself, which says that you cannot use the CC licensed work:

in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

This month, we will see how the Creative Commons organization and others interpret this clause. Concluding that uncertainty remains, we will see that one prudent course of action is to ask explicit consent from the copyright owner to use a work for a particular goal, increasing security but possibly lowering the benefit of lowered transaction costs that Creative Commons offers.

What Creative Commons (The License Stewards) Says

The Creative Commons organization, as stewards of the license, is an authority on the license. Back in April 2005, Mia Garlick, then general counsel of Creative Commons, posted the following to the cc-education list:

Just to clarify a topic that has been the subject of some discussion on this list over recent days - the intended meaning of non-commercial as drafted in the CC-NC licenses is any use in a for-profit environment. The drafting of the license was intended to avoid any distinctions based on whether money changed hands or a profit was actually made. The relevant factor to consider is whether the entity making use of the work has profit as its primary motive.

Hope this clarifies things rather than raises more questions!

All the best,

Mia Garlick [...]

After further discussion, Creative Commons published in January 2006 a first draft of Proposed Best Practice Guidelines To Clarify The Meaning Of NonCommercial In The Creative Commons Licenses. (And accompanying January 10, 2006 blog post of Mia Garlick: Discussion Draft - NonCommercial Guidelines.) With some additional explanations and a small preamble, the final Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses now resides at the Creative Commons wiki.

What do the guidelines say? The guidelines follow a workflow-like approach to answering the question what is and what is not Non-Commercial use. Both the kind of user and the kind of use are relevant.

As for the kind of users, allowed are private individuals, not for profits (educational or other) and service providers to these two categories of users. All use of a Non-Commercial licensed work by others would not be a noncommercial use and a license violation. (Which is not necessarily the same as a copyright violation, as the particular use might not be relevant for the applicable copyright law, or an exception under the law might be available.)
For the Japan picture book, I would qualify as an individual and am still golden.

Following the guidelines further, what kind of uses are allowed? I cannot use a NC-licensed work in an advertisement (not my own), make viewing an advertisement a condition for viewing the content, or use the work in connection with advertisements for which the work is the “primary draw”. This appears to draw on the “directed toward commercial advantage” language in the license; the later two options also seem to be more relevant for Web-based endeavors. Here also, for the book I should be fine with my intended use.

The next part of the guidelines seem to take the “private monetary compensation” language of the license as focus. The questions in the workflow concentrate on “money changing hands,” either in connection with a service provided in connection with the NC-licensed work(s), or in connection with the “verbatim” or “derivative” use of such work(s) if money is charged for using the new work(s) that make use of the NC-license works. Although you would have to pay for the printing and shipping of the book, as I am not receiving any money from it, I would argue that this is only incidental to a service being provided to me as “an allowable NC user” and I should still be fine.
Like Eben Moglen’s explanations on the GPL, the explanations of Creative Commons, the license stewards, on what Non-Commercial might mean is authoritative but not conclusive. At the end of the day, both legally and practically, what matters is what the creator and the user (the licensor and the licensee) could understand the Non-Commercial license term to mean.

What Creators Say

So, let us see what some creators have understood the Non-Commercial element of the Creative Commons licenses to mean.

On the initial user-based distinction of the CC guidelines, David Wiley, over at the Iterating Toward Openness blog, remarks how MIT OCW (Open Course Ware) has added an explanation of what MIT understand Non-Commercial to mean in the license as they apply it, and how no distinction is made on the basis of the user by MIT, contrary to the guidelines of Creative Commons:

Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.

Then, to give an example of a creator taking issue with a particular use by a commercial company, Niall Kennedy described in December 2005 how Microsoft had used one of his BY-NC 2.0 licensed photos from Flickr on a corporate blog promoting Vista:

Microsoft used the image I shot [...] without attribution and to commercial advantage, in violation of the Creative Commons by-attribution non-commercial license attached to the work.

(Via Denise Howell.)

And finally, my response to a request to use a picture of a Pecha Kucha night in Rotterdam that I had posted to Flickr, under a BY-NC-SA license (the default for Flickr):

This is [..]. I posted a story on Pecha Kucha, and its growing social scene. I found that many people on Flickr from all over the world were sharing photographs relating to the story. I wanted to see if you would be interested in contributing.

My post is on NowPublic, which is a news sharing community that relies on stories, photos, & videos from sources like you.

Would you be interested in sharing them with our members?

While I greatly appreciated being asked and was ready to share / approve the use, I stopped short of creating the required account at the site.

My response:

Re-using my pictures is fine, where it not for the sign-up. I won’t sign-up, but feel free to re-use the pictures you indicated, and see this e-mail as the corresponding permission/license to use them for NowPublic.

Perhaps if you look for pictures with PechaKucha as tag and “commercial” as part of their cc license?

Anyhow, while to my enjoyment I corresponded a little back and forth with the author of the story that wanted to use the picture, the processes at the site were set-up so that you needed to sign up, permission to use the work or no, and about 37 pictures but mine now grace the news item. (See Jason Pearce for a similar story.)

Which brings me to my final point, and the approach I am likely to follow when sourcing additional pictures for the Japan picture book: When in doubt, ask.

And Choosing A Prudent Course Of Action: At Increased (Transaction) Costs

One of the greatest benefits of Creative Commons is that it is easier for creators to apply a permissive license to their works, and for users to re-use (“rip, mix and burn”) such permissively licensed content. As there is still, and might always be, a grey area between what clearly is, and what clearly is not noncommercial use, legal uncertainty remains.

I can see two sensible approaches to this uncertainty. One, do not use NC-licensed works when you are in doubt as a user that your particular use is in fact non commercial, and after stopping to imagine how the creator might feel about a particular use. This limits the pool of available works considerably, for example by about 75 percent for pictures taged “Kyoto” on Flickr. If that is a problem, or you first came across a particular work you would like to use, only to see that a CC license containing the NC element was applied, you can try and obtain permission for the particular use. As most CC-licensed works can be found on the Internet, it should also be relatively straightforward to ask permission for a particular use from the creator. Or in other words: when in doubt, ask. (Perhaps a nice approach in general as well, to let the creator know you are using a work.) However, having to go back to the creators who already applied a license increases transaction costs for the creators and the users, with diminished benefits of the Creative Commons set-up.

I for one would be surprised if I would see my NC-licensed photographs in a work that can be bought in a store, as it would be immediately evident to me who the user would be and how the particular work is used within the context of the book. So, even though when following the Creative Commons draft guidelines I end up using the works in a manner that is allowed, I intend to ask the creators whose works I would like to use in the Japan photography book if they are happy with it.

‡‡ [This is a post from Technology Law Culture: http://www.technologylawculture.com/. Olivier Oosterbaan, IT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]

(Picture: Screengrab from the result of a CC Search query.)