A Belgian court (the Tribunal of 1stinstance of Nivelles) has issued and order enforcing the CC BY-NC-ND license. A musical group posted music under a CC BY-NC-ND on the website www.dogmazic.net (a well-known French open content portal). A theater adapted the music to create an advertisement. The advertisement was broadcast on the radio with no attribution. The music was modified in order to create the advertisement.
The band sued for breach of contract or, in the alternative, copyright infringement. The court held that even though the use of the music benefited a non-profit organisation, it was a commercial use prohibited by the licence. The theatre argued that it was confused because the main page of the website was licensed under a more permissive licence. The Court observed that, as a professional organization in the cultural sector, the theatre had a duty to understand and abide by licensing conditions, noting also that a good faith mistake is not valid in Belgium as a defense to copyright infringement.
The band claimed damages of 10,380€, but the court decided to grant 4,500€, i.e. 1500€ for each attribute of the license that was violated (attribution, no-commercial use, no derivatives).
The court stated that “the band’s behaviour is somehow paradoxical in that, on the one hand, it promotes a non-commercial ideology, but on the other hand, it claims an indemnity based on a commercial tariff that is much higher than the tariffs of the Belgian Collecting Society SABAM”.
Thanks to Philippe Laurent for the basis this entry. Any errors in the summary or translation are mine.
