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  • From: "Jorge Roberto de Castro Rosa" <jorgerosa AT fgv.br>
  • To: <cc-br AT lists.ibiblio.org>
  • Subject: [cc-br] CC - Publishing Rights
  • Date: Mon, 27 Oct 2003 14:32:32 -0300

Hello.

Let me introduce myself properly: My name is Jorge Roberto de Castro Rosa,
I´m graduating in Law School at UFRJ, and I work at FGV Law school in Brazil.
I also provide legal consulting for some Record Labels in Brazil. Mr.
Ronaldo Lemos asked me to take a look at the draft license offered by the
Creative Commons Corporation and make some remarks. Therefore, I have some
ideas I would Like to express:

On chapter 5, regarding Representations, Warranties and Disclamers, it is
stated:
5.a By offering the Work for public release under this License, Licensor
represents and warrants that, to the best of Licensor's knowledge after
reasonable inquiry:
(...)
II. The Work does not infringe the copyright, trademark, publicity rights,
common law rights or any other right of any third party or constitute
defamation, invasion of privacy or other tortious injury to any third party.

This clause certanly express that CC is concerned about possible injuries to
any third party by Licensee. However, it is not clear enough what is your
policy regarding Publishing rights. As far as I am concerned, the copyright
owner that licences his work through CC states that he has not authorized any
publisher to release his work exclusively. Considering the fact that almost
every publisher will only agree to publish and release any work in a
commercialy effective way provided that the copyright owner of that material
authorizes him to do that through an exclusive license, that means that the
copyright owner have to choose between the CC License or a any other
publisher proposal.

That problem itself is not the major problem, because this program seems to
be developed for all those artists that want to express their work through
the internet, and not necessarely make money out of it. That´s probably why
the artist can either allow or forbid commercial uses of your work. However,
every artists that licenses his work through CC have to be aware of the fact
that he "reserves the right to release the Work under different license terms
or to stop distributing the Work at any time; provided, however that any such
election will not serve to withdraw this License (or any other license that
has been, or is required to be, granted under the terms of this License), and
this License will continue in full force and effect unless terminated..." as
stated on chapter 7. That means that he cannot release his work in a
commercialy effective way, unless the publisher willing to do that agrees to
have a non-exclusive authorization, which is mostly unlikely to happen.

The Publishing rights of the third party are not necessarely the problem,
since the clause mentioned above clearly states that the licensee that uses
any work licensed through CC is not infringing any other right of any third
party (Chapter 5, clause a.II), which includes Publishing rights. However,
Brazillian legal system - and that happens in most of the countries - is
influenced by the Droit d´auteur Legal System. That means the Copyrights and
Publishing rights have different scopes and subject matters according to our
rules and regulations.

The owner of any Publishing rights in the United States is entitled to
publicly release the work, as stated in any contract celebrated with the
owner of the copyright. According to our laws, The right to release a
copyrighted work can be granted to Publishers by transfer the copyright, as a
whole or in part by any means of conveyance; licence, exclusive or
non-exclusive; or sinple authorization, just like stated in the Copyright
Act. The problem is that all the exclusive rights in copyrighted works
(Copyright Act, Title 17, Chapter 2, Sec. 106) have different rules and
regulations, with different scopes, and they can be granted or transfered to
publishers separetely. That means that the owner of "Publishing rights in
Brazil" owns part of the "Copyright", and when the CC License comes to terms
to our Laws, that could be a major problem.

I also noticed that the CC Draft License didn´t mentioned anything about
Neighbouring rights on Chapter 5. I am not sure if Neighbouring rights are
being discussed on the United States, Therefore I am not going to make any
remarks on that. All I can say is that the same problem I mentioned above
(differences between Copyright Act and Droit d´auteur Legal System) will
definetely occur. I am sure that everyone involved on the whole concept of
Creative Commons is aware of some of those problems and also aware of the
fact that there is a global concern on that matter, reflected on recent
International Agreements, such as the Trade-related aspects os Intellectual
Property Rights - TRIPs.

I am also sure that your iniciative will be deeply apreciated worldwide.

Best Regards, Jorge Roberto de Castro Rosa



  • [cc-br] CC - Publishing Rights, Jorge Roberto de Castro Rosa, 10/27/2003

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