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)