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

Anne Fitzgerald am.fitzgerald at qut.edu.au
Thu Aug 18 23:37:28 EDT 2011

Hi Niklas (and other commentators)

Niklas, there is no such law in Australia.  Nor is there any discussion of such a law in Australia.  Only the federal government can enact copyright legislation (not the States) and there is no such proposal.

As a general rule, the copyright status of a work will be determined in the country in which it is created or where its author resides.  Any question of infringement would usually be determined under the laws of the country where the infringement occurs.  The questions of which courts have jurisdiction to hear disputes (which was the issue in the Gutnick v Dow Jones case) and which country's law is to apply are complex questions of private international law (also known as conflicts of laws) rather than copyright law per se.

For example, in our book "Internet and E-commerce law, business and policy" (Thomson Reuters, Sydney, 2011) there is an entire chapter dealing with "Jurisdiction", as well as extensive chapters dealing with copyright law.
See http://www.thomsonreuters.com.au/catalogue/ProductDetails.asp?ID=11544

The reality is that, for cross-border collaborations, copyright law does not - and never will - provide all the answers.

Anne Fitzgerald
QUT Law Faculty
am.fitzgerald at qut.edu.au<mailto:am.fitzgerald at qut.edu.au>

From: cc-community-bounces at lists.ibiblio.org [cc-community-bounces at lists.ibiblio.org] On Behalf Of Andrew Rens [andrewrens at gmail.com]
Sent: Thursday, 18 August 2011 2:04 PM
To: cc-community at lists.ibiblio.org
Subject: Re: [cc-community] Illegal to be legal in Australia with CC0? help!

On Thu, Aug 18, 2011 at 4:45 AM, Niklas Cholmkvist <towardsoss at gmail.com<mailto: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 law.
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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