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  • From: Florian Philapitsch <florian.philapitsch AT wu-wien.ac.at>
  • To: cc-europe AT lists.ibiblio.org
  • Subject: Re: [Cc-europe] cc0 waiver
  • Date: Fri, 18 Apr 2008 11:52:20 +0200

That is an interesting (and difficult) question.

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 BC 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 here. A complete waiver of economic rights, however is already implemented in the CC-BY license...

This would be a great topic for the legal day IMO :)

kind regards from Vienna,
Florian

Zitat von Francois Dechelle <francois AT dechelle.net>:

Thank you very much for the clear explanation.

When I was saying that the law can evolve, I was not suggesting at all
that it should evolve toward the US-model, I was just asking if it would
be possible to consider within the European model the possibility of a
"voluntary public domain". It looks like the answer is no, but I may be
wrong?

Best,
François

Le jeudi 17 avril 2008 à 17:28 +0200, Florian Philapitsch a écrit :
Dear all,

same goes for Austria (and Germany) and almost certainly for every
European country.
The reason for this is the difference between the European and the
US-American copyright model.
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 globL 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.

kind regards from Vienna,
Florian

Francois Dechelle schrieb:
> Dear all,
>
> I think it is impossible as well in France. The idea of a "voluntary
> public domain" has been addressed but has raised a clear opposition, for
> instance from collecting societies.
>
> I have no idea of other possible solutions. My impression is that, given
> the current state of the law, it is not possible, but after all, the law
> can evolve?
>
> Best,
> François
>
> Le jeudi 17 avril 2008 à 16:43 +0200, Alek Tarkowski a écrit :
>> Dear all,
>>
>> I am writing in regard to Mike's announcement of the discussion around
>> CC0 waiver. In Poland such a waiver (that is, a public domain
>> dedication) is not possible by law, I imagine the situation might be
>> similar in other European countries as well.
>>
>> Somehow this has not been addressed on our list - and I feel uncertain
>> doing it myself, as I am not a lawyer! But personally I would like to
>> know what can be done - is this a good opportunity for us to look for
>> other solutions that would allow such waiving? or to clarify the fact
>> that this is indeed impossible in some jurisdictions?
>>
>> Cheers,
>>
>> Alek
>>
>
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