[cc-br] CC - Publishing Rights

Jorge Roberto de Castro Rosa jorgerosa at fgv.br
Mon Oct 27 12:32:32 EST 2003

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

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