- A. Classification by contract type
- B. Section 5.a. Warranty
- C. Section 5.b. Liability
- D. Section 5.c. Interpretation rule
- E. Version history
Literature: Thies Deike, Open Source Software: IPR Issues and Classification in the German Legal System, CR 2003, 9; Thomas Dreier, Creative Commons, Science Commons – A Paradigm Shift in Copyright Law?, in: Ohly, Perspectives on Intellectual Property and Competition Law: Festschrift for Gerhard Schricker on his 70th Birthday, 2005, 283; Stefan Grundmann, On the dogmatics of gratuitous legal transactions, AcP 1998, 457; Philippe Heinzke, Software licensing with Creative Commons licences?, CR 2017, 148; Benno Heussen, Legal levels of responsibility and dispositions in rem in the transfer of open source software, MMR 2004, 445; Sebastian Horlacher, Creative Commons Licences 4.0 – A (Copyright) Legal Consideration Based on Open Educational Resources in Higher Education; TillJaeger/Axel Metzger, The New Version 3 of the GNU General Public Licence, GRUR 2008, 130; Frank A. Koch, Copyright and antitrust aspects of the use of open source software (II), CR 2000, 333; Dominik König, The simple, free right of use for everyone, 1st edition 2016; Till Kreutzer, LG Munich I: Effectiveness of the GNU General Public Licence (GPL) under German law, MMR 2004, 693; Walter F. Lindacher/Wolfgang Hau, in: Wolf/Lindacher/Pfeiffer (eds.), AGB-Recht, 7th edition 2020, Part 3 § 306 Legal consequences of non-inclusion and invalidity; Ulrich Loewenheim/Jan Bernd Nordemann/Ansgar Ohly, in: Loewenheim (ed.), Handbuch des Urheberrechts (Handbook of Copyright Law), 3rd edition 2021, § 25 The system of rights of use; Reto Mantz, Creative Commons licences in the mirror of international court proceedings, GRURInt 2008, 20; Reto Mantz, only after 2006, Chapter 3: Open Access Licences and Transfer of Rights in Open Access Works, in: Spindler (ed.) Legal Framework for Open Access Publications, 2006, 55; Jochen Marly, Practical Handbook on Software Law, 7th edition 2018; Alexander Peukert, Copyright and Related Rights, 19th edition 2023, Haimo Schack, Copyright and Copyright Contract Law, 10th edition 2021, Gunda Plaß, Open Contents in German Copyright Law, GRUR 2002, 670; Ingo Saenger, in: Schulze (ed.), Thomas Schiffner, Open Source Software: Free Software in German Copyright and Contract Law, 2003; Peter Sester, Open Source Software: Contract Law, Liability Risks and IPR Issues CR 2000, 797; Gerald Spindler, in: Spindler (ed.), Legal Issues in Open Source, 2004, D. Contract Law Gerald Spindler Expert Opinion Legal Issues of Open Source, 2003; Hans Stoll, BGH: Mitigation of Liability under § 521 BGB in the Case of Gifts, JZ 1985, 383; Andreas Wiebe/Felix Prändl, Open Source Software, ÖJZ 2004, 628.
A. Classification by contract type
1 If one assumes, in line with the prevailing literature, that CC licensing is not merely an abstract granting of rights of use,
2 In the case of a CC licence, the right of use is usually granted directly by the author, but intermediaries (e.g. database providers or publishers) may also be involved. If third parties make the work available for download, this may result in slight modifications to the contractual arrangements. Either the third party acts as a messenger or acts in a representative capacity, provided that the grant of use continues to be made by the author himself.
3 CC works can also be passed on via another medium
B. Section 5.a. Warranty
4 Section 5.a contains – as is customary in open licensing and also in accordance with the concept of gift law – a far-reaching exclusion of warranty for defects. In order to determine the defectiveness of a material defect in accordance with Section 524 (2) sentence 3 BGB in conjunction with Section 434 (1) BGB, the subjective and objective concepts of defect must be given equal consideration under the applicable legal situation.
I. Compatibility with Section 309 No. 8 Letter b aa BGB
5 The comprehensive exclusion of warranty and liability under US contractual practice in particular requires interpretative comparison with the German legal system. Since CC licences are general terms and conditions,
II. Compatibility with Section 305(2)(2) BGB
6 It is questionable whether the clause is nevertheless permissible, given that Section 5.a of licence version 4.0, on the one hand, is only intended to apply "as far as possible" and, on the other hand, stipulates that the exclusion of warranty does not apply if other legal provisions provide for deviating regulations. Thus, the invalidity could be avoided by limiting the clause to the legally permissible scope of the applicable national law in each case .
III. Application of statutory provisions
7 Assuming, therefore, that the warranty clause in section 5.a is invalid and that this results in a prohibition on a reduction to maintain validity in accordance with section 306(2) of the German Civil Code (BGB), the statutory provisions on gifts in accordance with sections 521, 523 and 524 BGBapply. This raises the question of which statutory provisions apply to which types of damage. In the case of material defects and defects of title, Section 521 BGB is generally superseded by the special rules of Sections 523 et seq. BGB.
IV. Warranty by third parties
8 In principle, the same warranty provisions apply to third parties-vis licensees within the limits of §§ 523 f. BGB, unless there is a message.
V. Contributions to CC compilations
9 Special considerations apply when a contribution is made free of charge to a collective work or compilation that is subject to a specific CC licence. The users of the terms and conditions clauses are then generally the organisers of the CC collective work, such as the publishers, who decide on the licence and make it the basis for the use of the contributions.
VI. Compatibility with Section 305b of the German Civil Code (BGB)
10 Whereas under licence version 3.0, changes to warranty rights could only be made in writing, licence version 4.0 does not prescribe any particular form for such adjustments. However, since informal supplementary and ancillary agreements relating to warranty are generally individual agreements within the meaning of Section 305b of the German Civil Code (BGB),
C. Section 5.b. Liability
11 A distinction must be made between the liability of the licensee towards the author and, conversely, that of the author (or a third party) towards the licensee. While the licensee is liable to the author in accordance with the general rules for intent and negligence, the CC licences may give rise to special features with regard to the liability of the author (or a third party). Similar to the warranty clause, Section 5.b provides for a comprehensive exclusion of liability. When redistributing the work, users of the terms and conditions must observe certain notification obligations and, in accordance with Section 3.a.1.A.iv, provide information about the existing disclaimer.
I. Compliance with the provisions of the General Terms and Conditions ( §§ 305 ff. BGB)
12 Whether the disclaimer constitutes a violation of the Terms and Conditions regulations depends on whether the licence provisions are in accordance with § 309 No. 7 letters a and b BGB (in business-to-business transactions via the indicative effect in accordance with § 307 (2) No. 1 BGB).
13 However, this clause also stipulates that liability shall only be limited to the extent permitted by law, so that national liability regulations take precedence. If this clause is also considered invalid due to unreasonable acknowledgement pursuant to § 305 (2) No. 2 BGB (in business transactions § 307 (1) sentence 2 BGB), the statutory provisions of gift law and the resulting liability limitations apply.
II. Liability of third parties
14 In principle, third parties are liable to the licensees under the same liability provisions and thus also for intent and gross negligence pursuant to Sections 280, 251 BGB.
III. Contributions to CC compilations
15 If contributions to a CC collective work are made free of charge ,
IV. Other liability provisions
16 Liability for the infringement of third-party rights, such as in relation to other patent and copyright holders whose rights could be infringed by a download offer, remains unaffected.
D. Section 5.c. Interpretation rule
17 In the knowledge that the comprehensive exclusion of liability and warranty could violate national legal systems, an additional interpretation rule has been added to maintain the most extensive exclusion of warranty and liability possible. In principle, such interpretation rules can be used as a supplement in cases of uncertainty.
E. Version history
18 While licence version 3.0 refers to the subject matter of protection and the granting of rights (similar to licence version 2.0), licence version 4.0 refers to the licensed material and its availability. These changes are primarily of a declaratory nature.
19 In addition, licence version 4.0 (similar to licence version 1.0 section 4 CC0) excludes, unlike licence version 3.0 (and licence version 2.0), licence version 4.0 expressly excludes the statutory warranty, as well as the warranty to protect the rights of third parties and the (non-)existence of errors. Licence version 3.0, on the other hand, explicitly rejects any warranty for the correctness of descriptions.
20 In licence version 4.0, the damages to be excluded, which may be direct, special, indirect, incidental, consequential, punitive, exemplary or other losses, costs and expenses, are explicitly listed. No liability shall be assumed under any legal construct, even if possible damages have been pointed out. Not only has the exclusion of negligent liability been included, but also the interpretation rule in section 5.c was only added in licence version 4.0.
Creative Commons License
Open Access Kommentar, Commentary on Section 5 – Disclaimer of Warranties and Limitation of Liability is licensed under a Creative Commons Attribution 4.0 International License.
