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[Francois Dechelle <francois AT dechelle.net>]

Thanks again for the detailed explanations.

I was wondering whether the CC_BY was really such a waiver, but
Podromos' mail was clearing out this question.

Best,
François

Le vendredi 18 avril 2008 à 11:52 +0200, Florian Philapitsch a écrit :
> 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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