[cc-community] Illegal to be legal in Australia with CC0? help!

Andrew Rens andrewrens at gmail.com
Thu Aug 18 00:04:44 EDT 2011

> On Thu, Aug 18, 2011 at 4:45 AM, Niklas Cholmkvist <towardsoss at gmail.com>wrote:
>> Now a law in Australia has been passed that makes it illegal to "export"
>> any kind of data to a foreign country through the
>> internet that is waived under the CC0-orlater waiver.
>> Two citizens from Australia start contributing data and user Alice
>> contributes X
>> data and user Bob contributes Y data to the database in France, Europe.
>> Now, does this database in France contain data that has not been waived
>> under CC0-orlater because
>> of this law that was passed in Australia?

There can be no single answer to that question.
A court in Australia may rule that Australian law applies but a court in
France may rule that French law applies.
Would a French court regard transmitting data to France as subject to French
Since French courts have already ruled that Yahoo merely making a website
available from its' servers in California was subject to French law in order
to remain consistent a French court would have to regard Alice and Bob as
subject to French law since their actions have a much greater connection to
France than merely publishing a webpage available to all the world. So
either a French court would have to admit that the Yahoo decision is
completely incoherent and unworkeable or it would to rule that French law
applied. (Of course the Californian court ruled that Yahoo wasn't subject to
French law).

But would an Australian court rule differently? In the Dow Jones case an
Australian court regarded a webpage as "published" in Australia merely
because it was accessible in Australia. So would it regard the webpage
hosted in France as published in Australia. So a court would either have to
either admit that the Dow Jones v Gutnick decision is completely incoherent
and unworkable or it would have to rule that Australian law applied.

The only reason Creative Commons escapes the complete failure by courts to
comprehend the Internet is because copyright law is
(1) harmonised by international law and
(2) the copyright right awarded in a jurisdiction is specifically confined
to the territory of that country by international law (Every participating
jurisdiction gives the same rights to nationals of other countries so that a
national of a participating country automatically gets separate copyrights
in every participating country).

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