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  • From: Teresa Nobre <teresaraposonobre AT gmail.com>
  • To: Jonas Öberg <jonas AT creativecommons.org>
  • Cc: cc-europe AT lists.ibiblio.org
  • Subject: Re: [CC-Europe] EDRI
  • Date: Sat, 31 Mar 2012 19:45:57 +0100

Dear all,

As far as I know, SOPA, PIPA and ACTA do not interfere with the CC licences and tools as such. If that's all that matters for CC, we can end the discussion here. If not (and I sense it's not), let's continue the discussion.

I accepted the invitation to be the Legal Project Lead of Creative Commons Portugal not only because CC licenses and tools were a way of giving some really useful and easy alternatives to those who wanted - for different reasons - to share their works, but also because it they mere existence could raise awareness about the urgent need of a more balanced copyright law. 

In every talk and lecture I give about CC, there are always a couple of questions that lead to discussions about the limits of copyright, about the obstacles teachers and students face because of copyright laws, or how inadequate copyright exceptions are in face of the new (Internet) notions of private and public. So, there's no way of not engaging in such discussions while educating the public about the use of CC licenses, and I wouldn't be part of this project if I was suppose to say "Sorry, my position doesn't allow me to answer to that question".

For the background, I'm an IP lawyer and I work with artists and creative companies mainly protecting their IP assets. I do it basically in a defensive way, ie, through contracts and/or IP regulations/policies. When I need to enforce my clients' copyrights in court, I do it in civil courts. I never had to go to criminal courts to enforce copyright and I would certainly refuse to go if it was to act against a non-commercial use (even if it was at a commercial scale) of a copyrighted work, because I'm totally against using criminal law for such offenses. 

To be honest, I can’t even understand how can someone be in favour of criminalising such “piracy” acts. Maybe because I'm married with a criminal judge who deals everyday with imprisoned people (meaning individuals, named Ana and Bernard, not people numbered 1 and 2), maybe because I've been there counselling and prison in real life smells and tastes and hurts (and it's not just a bad dream), maybe because I do value a lot freedom and I think that any limitation of one's freedom should always be the last resource.

If someone “steals” your copyrighted work, for non-commercial purposes, you will still be able to use it and make money out of it! Even if it’s at a commercial scale! It's not such a “malefic act” that urges Criminal Law to intervene! I don’t deny that the artists and the industries around them have economical losses, but why should Criminal Law serve to compensate such type of losses when someone is using it without commercial purposes? That’s not what Criminal Law was (historically) meant to be! I could concede in treating such acts as misdemeanours, but *never* as crimes! And even such option should be the last resource, after attempting to regulate it in more balanced ways (e.g. Internet Levy)!

I don’t defend that CC should lobby as a "piracy advocacy group" does or that CC should have a position about every copyright law, but I believe CC should not be silent when other rights (freedom, information, freedom of speech, education, etc), more valuable than copyrights, are at stake. So, I share the opinion that CC should not hesitate in making a statement (not necessarily actively engaging in the debates) in the following situations: 

1) Criminalisation of non-commercial uses of copyrighted works

2) Restrictions to the Internet grounded on copyright violations 

3) Copyright Limits/Exceptions 


Best,

Teresa Nobre 

2012/3/31 Jonas Öberg <jonas AT creativecommons.org>:
> Hi everyone,
>
> I think it's good that this discussion is had -- and I support Gisle
> in that CC should not extent beyond its merits and engage generally in
> these rights debates. As was pointed out by Diane, CC is not an
> advocacy organisation and our work focus on our tools. However,
> providing technical information to policymakers on how proposed
> policies would work with our tools seems like a useful activity,
> especially when those policies in one way or another interfere with
> our tools or the vision of Creative Commons.
>
> So the question at hand is: what is the relation between SOPA (as one
> example) and our tools? Thoughts on this would be appreciated, as
> there seems to be diverging views on this.
>
>
> Jonas Öberg, Regional Project Manager - Europe
> Creative Commons
> Phone: +46 31 7802161
>
>
>
> On Sat, Mar 31, 2012 at 8:40 AM, Gisle Hannemyr <gisle AT ifi.uio.no> wrote:
>> On 29.03.2012 09:58, Alek Tarkowski wrote:
>>> I haven't seen a good "ideological" discussion on the goals of CC in a
>>> while, and it seems it is needed.
>>
>> Until now, I thought that the goals of CC was pretty
>> well defined and not open for discussion.
>>
>> I joined CC in the belief that the mission of CC is making CC licenses
>> and tools available to the public, educating the public about the
>> use of these licenses, and making sure the quality of those licenses and
>> tools hold up in court under current copyright law.
>>
>> I hope this is still the case, and not something we need to
>> discuss.
>>
>>> Because for every artist you mention,
>>> where CC gains (possibly) credibility through a neutral stance (though
>>> to be honest, why "a room full of artists" would have a problem with
>>> CC's involvement against ACTA?),
>>
>> Sigh.  I had hoped to avoid a discussion about the content on ACTA
>> on this list, but here goes ...
>>
>> "ACTA" are apperently different things to different people.  (IMHO,
>> most of the descriptions of "ACTA" you'll find on the Internet are
>> works of fiction.)
>>
>> I've read carefully through the final and official text of ACTA,
>> which has been available online since December 3, 2010,
>>   http://trade.ec.europa.eu/doclib/html/147079.htm
>>
>> I cannot find *anything* in ACTA that will interfere with the function
>> of CC's licenses and tools, or prevent them from being used.
>> Therefore I can't see *why* CC need to take a position on ACTA.
>>
>> On the other hand, ACTA proposes (Article 23) that criminal procedures
>> and penalties should be used against:
>>  "rights piracy on a commercial scale"
>> Now, I know a number of succesful artists who belive that rights piracy
>> on a commercial scale are hurting them, and that legislation that
>> imposes criminal procedures and penalties on such acts is a good
>> thing for artists.  As a writer and photographer, I happen to
>> agree with them.
>>
>> When you ask "though to be honest, why 'a room full of artists'
>> would have a problem with CC's involvement against ACTA?" - do
>> you mean to say that you really do not understand why artists
>> may think that an organisation that lobbies against legislation
>> to criminalize "rights piracy on a commercial scale" may not be
>> well aligned with their own interests as commercial artists?
>>
>> If your answer is "yes" - I would be interested to hear your
>> reasoning.
>>
>>> Finally, CC headquarters were involved in anti-PIPA/SOPA activities in
>>> the US, which again suggests, that it would be good to have a clear
>>> policy on this, instead of what seem to be particular decisions.
>>
>> I was not aware of this.
>>
>> After looking, I find that there some anti-SOPA campaigning
>> posted on creativecommons.org by at least one senior officer
>> (example:  http://creativecommons.org/weblog/entry/30375 )
>> by CC vice president Mike Linksvayer).
>>
>> I would not have any problem with Mike posting this on his
>> personal blog (gondwanaland.com) - but I honestly think that
>> this posting is completely out of place on creativecommons.org.
>>
>> Again.  There is nothing in SOPA that will interfere with
>> the function of CC's licenses and tools, or prevent them from
>> being used, so CC should IMHO not express any opinion about
>> SOPA.
>>
>> I hope this was just a fluke.  If the CC project is going to mutate
>> into just another piracy advocacy group (e.g. work towards the same
>> goals as groups such as EFF and EDRI), I can no longer in good faith
>> recommend the adoption of CC licenses and tools to other creators.
>>
>> If CC moves in this direction, I think CC will alinate major parts
>> of the creative community and only remain popular with the
>> pirate party/kopime crowd - whose ideology I think can be summed up
>> in the idea that it is copying, not creating, that is the major
>> component in culture.  As you probably have guessed, I do not
>> share that ideology.
>> --
>> - gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
>> ========================================================================
>>    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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