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  • From: Andrew Rens <andrewrens AT gmail.com>
  • Cc: Creative Commons <legal AT creativecommons.org>, "cc-europe AT lists.ibiblio.org" <cc-europe AT lists.ibiblio.org>, "cc-affiliates AT lists.ibiblio.org" <cc-affiliates AT lists.ibiblio.org>
  • Subject: Re: [CC-Europe] [cc-affiliates] CC Taxation
  • Date: Fri, 10 Oct 2014 22:34:44 -0400

Hi Matej


I was the founding legal lead for South Africa but my experience of tax and CC problems arises from my experiences as a legal practitioner so in this discussion I draw from my experience only in very general terms, and of course a different tax code.

On 10 October 2014 18:19, Matěj Myška <matej.myska AT law.muni.cz> wrote:
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).
 
There may be some confusion with language here when you use the term 'immoveable'. Are you referring to the fact that the copyright is territorial i.e. the copyright in question is always the copyright in the Czech Republic, now matter where in the world the holder of the copyright might be. South African courts have held that copyright is an immoveable intangible right because no matter where in the world the right holder is the right before the court, the copyright in South Africa is a right granted and enforceable in South Africa.

Systems of property law are far less alike than systems of "intellectual" property law so I don't claim great knowledge but isn't the term Sache the equivalent of a 'res' in Roman law, which is a category that precedes division into moveable and immoveable?

Unless your civil code explicitly defines every single imaginable type of copyright licence, including non exclusive and ephemeral licences specifically as property you may want to focus your analysis on whether all types of copyright licence are property.
 
Every property has its value and could be assesed with monetary value.

Unless a legal system has a conceptual category of 'commons', or 'res publicae'. Things in those categories do not have a monetary value, not even one of 0. Thus in some jurisdictions a work in the public domain is 'res publicae' and thus extra commercium.
 
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:).
 
Is the licence property or is only the copyright property?

In many legal systems a property right is a right enforceable against the world at large. But the licence is not enforceable against the world at large, instead it it permission by the holder of a right which is enforceable against the world at large. Some copyright licences might grant  a right against all the world, for instance an exclusive copyright licence gives the licensee the right to enforce the copyright. But the Creative Commons licences are not such licences, they are not enforceable against the world. If someone else infringes the copyright then the Creative Commons licensee cannot sue, only the licensor can sue.

You may wish to consider whether this analysis is useful in your specific situation.
 
The particularity here is that even gratuitous acquiring of property has to be taxed as income.
 
You might want to revisit what kind of obligation is being acquired here. Are the obligations created or transferred by a CC license personal or general? Does every contract create a property obligation or do some create only a contractual/personal obligation?


I do hope this helps.

regards

Andrew

 
@matejmyska
creativecommons.cz


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