Hello,
On 10/05/2012 08:27 AM, Rick Moen wrote:
Quoting Kuno Woudt (k...@frob.nl):
Even if this is true, someone aiming to re-use the license text for
a new license may not want to rely on it.
I have my doubts about licences lacking expressive elements as that
concept is defined in copyright law, FWIW.
I certainly expect there to be a set of licenses which do not have
enough expressive elements. But my impression is that the bar is very
low here in the Netherlands, you only need a bare minimum of creative
expression in a work to qualify for copyright protection [2].
It seems better for the license steward to either explicitly state
that they regard the license text as functional and not
copyrightable or to just license the license text appropriately.
Er, the licence steward's opinion on that substantive legal question
(such as it is) strikes me as lacking relevance. Either the licence as
a work is copyrightable in accordance with its own separate nature, or
it isn't. The judge isn't going to ask the licence steward what he/she
thinks, but instead will analyse the work.
Over here, things are not that clear cut. Under dutch law a judge will
not look at just the literal text of a contract, but also the intent of
the text as it was understood by the parties at the time, and what the
parties could reasonably expect from each other (The so-called Haviltex
formula [1]).
I expect this would apply to copyright licenses as well (though I could
very well be wrong, I am still not a lawyer).
Considering this in an international context, it still seems better to
explicitly license the license text. Is there any harm in doing so?
-- kuno / warp.
[1] https://nl.wikipedia.org/wiki/Haviltex
[2] https://nl.wikipedia.org/wiki/Van_Dale/Romme-arrest
(sorry, links are in dutch. I haven't found good english descriptions
of either of these cases).
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