Skip to Content.
Sympa Menu

cc-europe - Re: [Cc-europe] cc0 waiver

cc-europe AT lists.ibiblio.org

Subject: Cc-europe mailing list

List archive

Chronological Thread  
  • From: Florian Philapitsch <florian.philapitsch AT wu-wien.ac.at>
  • To: cc-europe <cc-europe AT lists.ibiblio.org>
  • Subject: Re: [Cc-europe] cc0 waiver
  • Date: Fri, 18 Apr 2008 15:02:29 +0200

You are right of course.
What I meant to say is that CC-BY is the license closest to such a waiver.

cheers and a wonderful weekend to you all,
Florian

P.Tsiavos AT lse.ac.uk schrieb:
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

_______________________________________________ Cc-europe
mailing list Cc-europe AT lists.ibiblio.org http://lists.ibiblio.org/mailman/listinfo/cc-europe
_______________________________________________ Cc-europe mailing
list Cc-europe AT lists.ibiblio.org http://lists.ibiblio.org/mailman/listinfo/cc-europe




_______________________________________________ Cc-europe mailing
list Cc-europe AT lists.ibiblio.org http://lists.ibiblio.org/mailman/listinfo/cc-europe


Please access the attached hyperlink for an important electronic
communications disclaimer:
http://www.lse.ac.uk/collections/secretariat/legal/disclaimer.htm





Archive powered by MHonArc 2.6.24.

Top of Page