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  • From: Matěj Myška <matej.myska AT law.muni.cz>
  • To: "cc-affiliates AT lists.ibiblio.org" <cc-affiliates AT lists.ibiblio.org>, "cc-europe AT lists.ibiblio.org" <cc-europe AT lists.ibiblio.org>
  • Cc: Creative Commons <legal AT creativecommons.org>
  • Subject: [CC-Europe] CC Taxation
  • Date: Sat, 11 Oct 2014 00:19:36 +0200

Dear affiliates,


for the first time in the role of the Legal Lead of CC Czech Republic I would like to use this wonderful opportunity and kindly tap into the Common(s) Knowledge about one particular topic.

During the public consultations of the new licenses suite we have bumped into a rather new, unexplored and very interesting topic, namely the taxation of the acquired CC licences.


The "problem" could be described as follows:

The license itself is pursuant to the new Czech Civil Code considered as a immovable thing (Sache for the German speaking) and property (obligation). Every property has its value and could be assesed with monetary value. Consequently acquiring a CC license (the obligation) factually means  acquiring of property that has to be taxated pursuant to the Czech Income Tax Act (Einkommensteuergesetz:). The particularity here is that even gratuitous acquiring of property has to be taxed as income.

Further, the devil seems to be in the details (as always) - namely not the monetary the cost of the license (i.e. zero as the CCs are royalty free) but the value of the license shall be considered as the basis for calculating of the income tax.

Usually the value is calculated on the basis of licensing fees. In absence of such fees the value is set as the "usual" that is the common value of the acquired assets (license - obligation). The license has obviously some value, because there is the NC licensing element that prohibits to gain something out of this value for own's monetary compensation or commercial advantage.

Not surprisingly this issues boils down to the  already classic "contract X consent (unilateral act) dichotomy" debate.

In Czech Republic however the Copyright Act (available in English here: http://goo.gl/VQiP7R) is quite clear and states that the autor has the right  to grant authorisation on a contractual basis to any other person to exercise the right to use the work.
Therefore an "CCs as an unilateral act" solution seems not viable.

The "contract" interpretation, which seems to be according to our opinion the only proper one, however does not escape the taxation issues.

On the other hand the idea of taxation of CC Licences is in my opinion totally absurd and horrifying, as it would practically mean the end of CC in Czech Republic as such (imagine all the...Universities paying income taxes for using CC-licensed OER).

I just want to ask you whether you have encountered such issues also in your jurisdiction?

Thank you very much!

(And sorry for bothering you again (I have already sent out this email on 19. 9. this year))



Best from CC Czech Republic (Yes that is the coutnry where Kafka was born - as this issue is a bit Kafkaesque as Paul Keller mentioned in Amsterdam on the Information Influx Conference this year)

Matěj Myška

@matejmyska
creativecommons.cz




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