Case 14 - Open Access – Creative Commons

Summary

A.1. BASE CASE

From 1980 to 2004, Dr Silver and his colleagues have published their scientific articles in the periodicals of ‘Big Publishing House, Inc.’. For the publication of each article, ‘Big Publishing House, Inc.’ required that the authors transfer ‘all rights with respect to modes of exploitation now known or to be discovered’ to the publisher. In 2004, Dr Silver, along with several of his colleagues, stopped publishing their scientific findings with ‘Big Publishing House, Inc.’ in reaction to the publisher’s very strict licensing conditions. They now decide to make all their publications available on their institute’s webpage under a Creative Commons Attribution-NonCommercial-ShareAlike licence. Not only do they make their most recent articles available on the website, they also include the full text of the articles that were previously published by ‘Big Publishing House, Inc.’. On the website, the papers are freely accessible, provided that the user accepts the licence conditions by clicking ‘I agree’ in the dialogue box on their screen. Contrary to the licence used by ‘Big Publishing House, Inc.’, the Creative Commons licence allows authors to publish their work on the Internet, and to use it for any purpose, including for educational purposes. The licence also allows anyone to reproduce, modify and communicate the paper freely for strictly non-commercial purposes, provided that proper credit is given, and that any redistribution of the paper occurs under the same licence conditions.

‘Big Publishing House, Inc.’ has got wind of Dr Silver’s action and claims an injunction against the making available of the articles on the website. Will an injunction be granted?

A.2. COUNTRY REPORTS

(1) BELGIUM

I. Operative Rules

‘Big Publishing House, Inc.’ will not be granted an injunction.

II. Descriptive Formants

The final paragraph of Article 3§1 BCA (Art. XI.167§1 6° BCEL) states: ‘Notwithstanding any provision to the contrary, the assignment of rights in respect of as yet unknown forms of exploitation shall be null and void.’ The clause obliging authors to transfer their rights on modes of exploitation yet to be discovered will therefore be null in Belgium.