venerdì 26 dicembre 2014

The first Italian judgment about Creative Commons licenses

Promising to publish a book under Creative Commons and then (after 15 months) only offering an all-rights-reserved contract means pre-contractual libility, Italian Court says.

On December 19 I obtained the first Italian judgment about the application of Creative Commons licenses. I obtained it not as an attorney but as an author of technical books who had a bad experience with a famous Italian publishing company called Franco Angeli Edizioni. The book in issue is "Apriti standard! Interoperabilità e formati aperti per l'innovazione tecnologica", later published by Ledizioni and itself available under a CC by-sa license (see book's webpage).
The verdict, which came after a four years trial, is not properly about intellectual property issues; actually it has been a precontractual liability case, ruled by an ordinary civil court (Tribunale di Milano, Sezione VII Civile) and not by the IP specialized court. However it provides an interesting view of the level of awareness that mainstream publishers have of these licenses.
To understand the whole sense of the case it is necessary to read the reconstruction of events and the  reflections made by the judge to reach the decision. I published HERE most of the verdict in the original version (Italian) and I hope who is really interested can read and understand it by using an automatic translator.
Anyway, I try to provide below the translation of the most interesting part.

There are objective evidence in support of the seriousness of the negotiations, resulting therefore reasonable and justified the award of Mr. Simone Aliprandi in order to conclude the publishing contract: the enduring series of communications between the parties, without any problem concerning the application of the Creative Commons license to the book, raised by the employees of the Franco Angeli company until June 2010; the realization of a cover by the Franco Angeli company; the assignment of a specific code entry in the catalog and an ISBN code; thus the inclusion of the work between those to output in September 2010.

It is as undisputed as well documented that Mr. Simone Aliprandi has right now manifested to his counterpart the need for applying a Creative Commons licenses to the publication and that this need comes from a specific legal reason, given that the work would contain extracts of other existing publications, which were released with similar licenses and whose use in derivative works was conditioned to the application of the same license.
Likewise, it is proven by documents in court that no objections were moved, until June of 2010, by the employees of the Franco Angeli company, about the application of the Creative Commons license. Furthermore, the Franco Angeli company repeatedly reassured Mr. Simone Aliprandi, also by writing that "we are convinced that we can find an agreement providing for the recognition of the right royalties and, at the same time, the application of the Creative Commons license".

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