1 The provision is intended to ensure that licensees are bound by the licence terms. For the use of Creative Commons licences under German law, this is unproblematic.
2 The provision on binding to the licence terms is likely based on US law. There, the question arises as to whether a licence is (also) a contract or merely a unilateral promise.
3 Under German law, this distinction does not arise. Even unilaterally binding agreements without consideration have the character of a contract because consideration is not an elementary component of a contract. Accordingly, licence agreements are always regarded as contracts; particularly in the case of free licences, the courts in Germany have always assumed a contractual obligation .
4 German contract law also does not create any problems with contractual obligations if the work may also be used without a licence, for example on the basis of a legal restriction. This is because the text of the CCPL only represents a contractual offer to the general public.
5 According to German contract law pursuant to Sections 145 et seq. of the German Civil Code (BGB), the conclusion of the licence agreement requires an offer and acceptance as mutually agreed declarations of intent aimed at concluding the licence agreement under the terms of the CCPL. The offer is contained in the text of the CCPL attached to the respective work. This also makes it clear why the CCPL requires that the licence text or URI be provided when the work is redistributed (Section 3.a.1.C). The user and licensee then acts as a messenger who passes on the licence agreement offer of the licensor, thereby enabling third parties to conclude the agreement.
6 Acceptance of the licence agreement offer does not have to be made by means of an explicit declaration such as an email, but can also be made by conclusive action. This is also expressed in the text of the introductory paragraph, which states that the user agrees to the CCPL by exercising the rights, i.e. by an act of use that would not be permitted without the corresponding licence.
7 Although declarations of intent such as offers and acceptances are generally subject to receipt, according to Section 151 (1) of the German Civil Code (BGB), the receipt of the declaration may be waived or is not required if it is not to be expected according to customary practice, as is the case, for example, with a vending machine. This is precisely the case with This is precisely the case with mass licensing, because licensors generally have no interest in receiving a declaration of acceptance from licensees .
8 The previous versions contain a comparable introductory wording.
Creative Commons License
Open Access Kommentar, Commentary on CCPL Einleitungsabsatz is licensed under a Creative Commons Attribution 4.0 International License.
