Cc-europe mailing list

[<P.Tsiavos AT lse.ac.uk>]

I think the best way to move ahead is indeed having a workshop on this issue 
as Paul has suggested both in the Vilnius meeting and on the list. Each of 
the European projects could then in advance make suggestions in relation to 
the applicability of a CC_0 like system in their respective jurisdictions. 

All I would add to Florian's comments (most of which find me in full 
agreement) is that CC_BY is not a complete waiver of the economic rights. On 
the contrary, it is a non-exclusive licence and the rights of the author 
(even the economic ones) are explicitly reserved. The freedoms awarded to the 
licensee are conditioned upon certain terms and IMHO this is one of the 
primary differences between CC_BY and CC_0. I take Florian's comment to mean 
that CCBY is the closest we have to a waiver from the perspective of a 
European Author's right system. Perhaps the next stage would be to examine 
how could we may move further from CC_BY toward the direction of CC_0 while 
keeping in mind our jurisdictional limitations.  

Needless to say that we need this CC-0 workshop sooner than later...Will 
anyone be presenting a relevant paper in the Leuven conference?

best wishes.
pRo





 Message-----
From: cc-europe-bounces AT lists.ibiblio.org on behalf of Florian Philapitsch
Sent: Fri 4/18/2008 10:52 AM
To: cc-europe AT lists.ibiblio.org
Subject: Re: [Cc-europe] cc0 waiver
 
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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>
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