[cc-community] Changing the law to support CC

Florian Philapitsch florian.philapitsch at wu-wien.ac.at
Sun Apr 20 13:19:52 EDT 2008


Hi,

speaking from a European perspective - this will not happen in the near
future. The change, the European copyright law would have to undergo for
this would be far from minor - it would mean overthrowing the ideas on
which the European copyright system is based.

Here is what I wrote on the cc-europe list about that (caution, loooong
read ahead):

############################
As you all know, in European Law, copyright can be divided in
exploitation rights and moral rights. The exploitation rights which are
originally exclusive to the author include among others the right of
reproduction, communication to the public, distribution, adaptation,
fixation, rental and broadcasting. The moral rights (droit morale) stem
from French copyright and have been introduced in international
copyright law. They include the right to claim authorship of a work and
the right to object to any distortion or other derogatory action in
relation to the work which would be prejudical to the author’s honour or
reputation. Moral rights are independent from the economic rights of an
author and can neither be transferred nor waived.
The global concept of copyright is based on two different approaches:
the (continental) European concept stems from naturalistic ideals: a 
work belongs to it’s creator, the author, he is granted utmost control 
over his creation. The utilitarian concept of copyright is the core-idea
behind Anglo-American copyright law:

As you see, European copyright is also about the "sacred bond"
between a creator and his/her works. This bond can not be broken by
waiving. This means, CC0 will not work in Europe in any way. IMO this is
no bad thing at all, but this is a legal/political discussion of great
depth and length  :)

Sure, law can evolve, but I highly doubt if the European copyright
should evolve in the direction of the merely economically motivated
US-model.A possible solution (to get closer to CC0, which, however IMO 
can never be completely reached in European copyright systems) lies 
within the distinction between the dualistic and the monistic 
copyright-theory.
The monistic theory claims that the moral rights and the economic
rights of the creator can not be sperated from each other. Copyright
in this system is more or less a giant undividable blob. The only two
countries (to my knowledge) choosing this system in Europe are Germany
and Austria.
The dualistic theory claims that these two groups of rights can be
seperated. In dualistic copyright systems the economic rights are
transferrable and therefore waivable. The best example for a dualistic
system is France. (Cf. Art. L. 131-4 CPI: " La cession par l'auteur de
ses droits sur son oeuvre peut être totale ou partielle. [...] ").

Now, CC0 COULD work with a dualistic system as far as only the
economic rights are waived. A waiving of the moral rights however
would never be possible. The funny thing is, especially when speaking
about the "evolution" of copyright, that this naturalistic theory
itself is rather "new" (in the light of European culture), and was
brought up by people like Rousseau and Kant.
In fact, moral rights should be unwaivable in all the countries which
signed the Berne Convention:

"Article 6bis
(1) Independently of the author's economic rights, and even after the
transfer of the said rights, the author shall have the right to claim
authorship of the work and to object to any distortion, mutilation or
other modification of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honor or reputation."

As you see, even here ecomonic rights are deemed transferrable while
the transfer or waiving of moral rights is not mentioned. Yes, the US
signed the Berne Convention as well, but hey, what do they care about 
international treaties  :)
So, in Europe we could have something like a CC0 for economic rights
for all the countries which base their copyright systems on a
dualistic idea.

As I said, this is a rather complicated discussion but it is quite
clear that CC0 in this form does not stand a chance in Europe.
############################

John mentioned a waiver in the sense that the licensor could "promise" 
never to press charges based on moral rights, but as he already pointed 
out, this would not work - a clause like this would be surely considered 
  immoral and therefore null and void.

cheers from moral-rights-land,
Florian


cc-community-request at lists.ibiblio.org schrieb:
> Send cc-community mailing list submissions to 
> cc-community at lists.ibiblio.org
> 
> To subscribe or unsubscribe via the World Wide Web, visit 
> http://lists.ibiblio.org/mailman/listinfo/cc-community or, via email,
> send a message with subject or body 'help' to 
> cc-community-request at lists.ibiblio.org
> 
> You can reach the person managing the list at 
> cc-community-owner at lists.ibiblio.org
> 
> When replying, please edit your Subject line so it is more specific 
> than "Re: Contents of cc-community digest..."
> 
> 
> Today's Topics:
> 
> 1. Changing the law to support CC (Gavin Baker) 2. Re: Changing the
> law to support CC (John Hendrik Weitzmann)
> 
> 
> ----------------------------------------------------------------------
> 
> 
> Message: 1 Date: Fri, 18 Apr 2008 19:02:57 -0400 From: Gavin Baker
> <gavin at gavinbaker.com> Subject: [cc-community] Changing the law to
> support CC To: cc-community at lists.ibiblio.org Message-ID:
> <480928A1.5020203 at gavinbaker.com> Content-Type: text/plain;
> charset=ISO-8859-1; format=flowed
> 
> I am sure this conversation has been had before, but regardless:
> 
> In a discussion on cc-licenses (below), some comments have been made 
> that the latest draft of CC0 is incompatible with the law in some
> countries.
> 
> Has there been any discussion about working with legislators to
> change the law in countries with legal systems that (for instance)
> make an approach like CC0 difficult?
> 
> I think we can make a strong argument that, in the case of science, 
> there is a stronger public interest in promoting unrestricted data 
> sharing than in protecting whatever the author's moral rights might
> be -- at least in the case where the author WANTS to waive her
> rights.
> 
> I know that doesn't help with forming the license now, but I just
> wonder.
> 
> John Hendrik Weitzmann wrote: | Hi, | | I can confirm for Germany
> basically all Gisle said for Norway. | | Something I just posted on
> the cc-europe list: | | The only possible solution under monistic
> systems with strong moral | rights would probably be an assertion to
> never claim and enforce any | unwaivable right in the work. But
> courts won't be readily willing to | uphold such an auxilliary
> construction designed to circumvene | non-dispositive law. | | And
> (bad for Larry) we might have to get into the messiness of |
> contractual relations again, as with the licenses. Or rely on bona
> fide, | which is even worse. | | @Mike: Can CC0 as a construct live
> with "worth a try (but might turn out | not to work)"? | | all the
> best, | John | | | | Gisle Hannemyr schrieb: |> Mike Linksvayer
> wrote: |>> See http://creativecommons.org/weblog/entry/8211 for
> announcement, |>> feedback encouraged on this list. |>> - CC0 waiver
> legalcode |>>
> http://labs.creativecommons.org/licenses/zero/1.0/legalcode |> I do
> not think that the text of the beta CC0 waiver will have any |> legal
> effect in most countries in Europe.  I am certain that this |> will
> not fly in Norway. |> |> You just can't waive moral rights in Norway
> (the law is very clear |> on that point).  But that's a mere
> technicality.  Even if you |> can't waive moral rights, if you think
> you can, you will probably |> not create too much of a stink when
> someone violates them. |> |> But in the legal code, the author waives
> a lot of other rights: |> "privacy rights, rights protecting against
> unfair competition |> and any rights protecting the extraction,
> dissemination and reuse |> of data" without as much as pausing  to
> establish that the author |> has those rights in the first place. |> 
> |> Take a photograph for instance. In Norway a photograph depicting 
> |> a person is considered personal data and covered by the data |>
> protection act.  The privacy rights attached to that data |> belongs
> to the depicted person, not the author.  This goes for |> a number of
> other data as well.  You simply can't release |> personal data into
> the public domain in Norway, so making the |> waiver apply to data
> bases open up a whole can of worms as to |> who controls the right to
> the data in the data base (in many |> cases, it is not the author). 
> |> |> I am afraid that releasing something like this on the general 
> |> public is not a good idea.  People using CC-licenses are not |>
> legal experts and the CC0 legalcode has the potential to |> create a
> huge mess if someone without the legal expertise |> starts using it
> to waive rights that they he not posess in |> the first place. | |
> _______________________________________________ | cc-licenses mailing
> list | cc-licenses at lists.ibiblio.org |
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> 

------------------------------

Message: 2
Date: Sat, 19 Apr 2008 02:08:58 +0200
From: John Hendrik Weitzmann <jhweitzmann at mx.uni-saarland.de>
Subject: Re: [cc-community] Changing the law to support CC
To: cc-community at lists.ibiblio.org
Message-ID: <4809381A.8090408 at mx.uni-saarland.de>
Content-Type: text/plain; charset=ISO-8859-1


there have been two major overhauls of the german copyright act recently
and open content activists were able to get many exceptions for open
content into the act. However, questions of 'real' PD i.e. waivers of
all rights go to the very root of the systems nature.

It is all about protecting creators from being overly exploited and
having to watch what others do with their creations. However, the EU
commission does a first step by funding the thematic network COMMUNIA
(http://www.communia-project.eu) that has the mission to produce an
overview of the digital public domain and advise the commission whether
something has to be done about it.

The result (in 3 - 5 years?) might be some hole in the net allowing
creators to legally detach themselves completely from a work. Things on
a european scale tend to take a while, but there is momentum now in this.

regards,
John


Gavin Baker schrieb:
>> I am sure this conversation has been had before, but regardless:
>> 
>> In a discussion on cc-licenses (below), some comments have been
>> made that the latest draft of CC0 is incompatible with the law in
>> some countries.
>> 
>> Has there been any discussion about working with legislators to
>> change the law in countries with legal systems that (for instance)
>> make an approach like CC0 difficult?
>> 
>> I think we can make a strong argument that, in the case of science,
>>  there is a stronger public interest in promoting unrestricted data
>>  sharing than in protecting whatever the author's moral rights
>> might be -- at least in the case where the author WANTS to waive
>> her rights.
>> 
>> I know that doesn't help with forming the license now, but I just
>> wonder.
>> 
>> John Hendrik Weitzmann wrote: | Hi, | | I can confirm for Germany
>> basically all Gisle said for Norway. | | Something I just posted on
>> the cc-europe list: | | The only possible solution under monistic
>> systems with strong moral | rights would probably be an assertion
>> to never claim and enforce any | unwaivable right in the work. But
>> courts won't be readily willing to | uphold such an auxilliary
>> construction designed to circumvene | non-dispositive law. | | And
>> (bad for Larry) we might have to get into the messiness of |
>> contractual relations again, as with the licenses. Or rely on bona
>> fide, | which is even worse. | | @Mike: Can CC0 as a construct live
>> with "worth a try (but might turn out | not to work)"? | | all the
>> best, | John | | | | Gisle Hannemyr schrieb: |> Mike Linksvayer
>> wrote: |>> See http://creativecommons.org/weblog/entry/8211 for
>> announcement, |>> feedback encouraged on this list. |>> - CC0
>> waiver legalcode |>>
>> http://labs.creativecommons.org/licenses/zero/1.0/legalcode |> I do
>> not think that the text of the beta CC0 waiver will have any |>
>> legal effect in most countries in Europe.  I am certain that this 
>> |> will not fly in Norway. |> |> You just can't waive moral rights
>> in Norway (the law is very clear |> on that point).  But that's a
>> mere technicality.  Even if you |> can't waive moral rights, if you
>> think you can, you will probably |> not create too much of a stink
>> when someone violates them. |> |> But in the legal code, the author
>> waives a lot of other rights: |> "privacy rights, rights protecting
>> against unfair competition |> and any rights protecting the
>> extraction, dissemination and reuse |> of data" without as much as
>> pausing  to establish that the author |> has those rights in the
>> first place. |> |> Take a photograph for instance. In Norway a
>> photograph depicting |> a person is considered personal data and
>> covered by the data |> protection act.  The privacy rights attached
>> to that data |> belongs to the depicted person, not the author.
>> This goes for |> a number of other data as well.  You simply can't
>> release |> personal data into the public domain in Norway, so
>> making the |> waiver apply to data bases open up a whole can of
>> worms as to |> who controls the right to the data in the data base
>> (in many |> cases, it is not the author). |> |> I am afraid that
>> releasing something like this on the general |> public is not a
>> good idea.  People using CC-licenses are not |> legal experts and
>> the CC0 legalcode has the potential to |> create a huge mess if
>> someone without the legal expertise |> starts using it to waive
>> rights that they he not posess in |> the first place. | |
>> _______________________________________________ | cc-licenses
>> mailing list | cc-licenses at lists.ibiblio.org |
>> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>> 
_______________________________________________
cc-community mailing list
cc-community at lists.ibiblio.org
http://lists.ibiblio.org/mailman/listinfo/cc-community




------------------------------

_______________________________________________
cc-community mailing list
cc-community at lists.ibiblio.org
http://lists.ibiblio.org/mailman/listinfo/cc-community


End of cc-community Digest, Vol 47, Issue 24
********************************************



More information about the cc-community mailing list