Creative Commons Aotearoa New Zealand discussion

[Richard White <richard.white AT otago.ac.nz>]

Like you say we’d want someone with legal expertise to comment but the recognition of copyright automatically existing as soon as a work is “fixed” in some format is a Berne Convention thing – and therefore difficult for NZ to modify in any way (e.g. ARR must be registered but CC BY sort of rights are automatic).  From the Wikipedia page on Berne:

 

The Berne Convention was developed at the instigation of Victor Hugo of the Association Littéraire et Artistique Internationale. Thus it was influenced by the French "right of the author" (droit d'auteur), which contrasts with theAnglo-Saxon concept of "copyright" which only dealt with economic concerns. Under the Convention, copyrights for creative works are automatically in force upon their creation without being asserted or declared. An author need not "register" or "apply for" a copyright in countries adhering to the Convention. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work and to any derivative works, unless and until the author explicitly disclaims them or until the copyright expires. 

 

 

From: cc-nz-bounces AT lists.ibiblio.org [mailto:cc-nz-bounces AT lists.ibiblio.org] On Behalf Of Leigh Blackall
Sent: Thursday, 2 May 2013 6:36 p.m.
To: Creative Commons Aotearoa New Zealand discussion
Subject: Re: [Cc-nz] Alternatives to

 

While we wait for legal comment, I just want to clarify my original comment, and respond to the suggestion of not having to register.

 

When I said: "..return to the practice of having to register copyright, like we do patents and remarks.." Remarks should have been Trademarks.

 

Trademarks and patents seem to me to be at least if not more high stakes commercially, than publishable works governed by copyright, and yet we require registration of patents and trademarks, but not publishable works? Why is this? Why isn't it the case that anything patentable and trademarkable, is automatically restricted? In fact, it's my understanding that if you accidently or inadvertently publish on something patentable, then it's not possible to register a patent! Please, someone tell me this isn't so. 

 

But anyway, I'm using patents and trademarks to suggest that it's not unreasonable to expect registration of ARR copyright. Its precisely people's ignorance on copyright that makes me suggest this. Otherwise, all and sundry would mark ARR without a second thought. It seems to me, the reasons for ARR (commercial, ethical, cultural) and all reasons to need a registration, and to ensure good governance around it.

 

On Thu, May 2, 2013 at 12:08 PM, Danyl Strype <strypey AT disintermedia.net.nz> wrote:

Kia ora koutou

This discussion got going a while back, on the heels of another discussion. I think it's worth further consideration.

 

On 28 January 2013 09:53, Richard White <richard.white AT otago.ac.nz> wrote:

Leigh said:

It seems to me that if we used todays technology to return to the practice of having to register copyright, like we do patents and remarks, then we'd be somewhere closer to a more manageable balance. Anything that is not registered is public domain.

I do like the idea of getting rid of automatic ARR. However, I assume the reason for automatic ARR copyright is to protect people who don't know how copyright works, which is most people, as we continually discover while promoting CC, ;) This is a problem that is not addressed by either a registration process, or asserting copyright (ARR or CC) when the work is published.

 

Richard:

Yes!  I’ve often had this thought myself, given that anyone who wants to protect their work should actively do so anyway (i.e. by actually thinking about their rights and what others can do with what they create).  I would suggest a slight variation to what Leigh says: you’d have to specifically assert all-rights-reserved and where this didn’t happen would not be public domain (where not even attribution is required) to a sort of moral-rights-reserved, where you’d still have to attribute the creator, not treat the work in a defamatory way, etc., as is currently expressed in the Act.  So, if I put a picture up on my blog with no rights assertion of any kind then those things still apply to the work.  So, in a way, this other type of right would be CC BY.

Could it actually be CC-BY?After all, this is now the default for Crown Copyright under NZ GOAL, so it's not without precedent.

It could even be CC-BY-NC (much as I'm loath to suggest it ;), which would give the copyright holder the option to relicense to CC-BY if they have no interest in reserving commercial use rights.

You wouldn’t think this would affect anyone who really makes money off their content because they already assert their rights.  It would just free up all that other stuff.

Exactly. It still satisfies the purpose of automatic ARR (assuming I'm correct about what that purpose is ;) but without creating the troublesome and unhelpful restrictions.

 you wouldn’t have to have a registration process if the stipulation was simply that you assert your rights in some way, e.g. putting the © symbol or a CC licence on the work

I support this idea over a registration system for two reasons. One is that there asserting a license on the work creates no admin costs, whereas there would be ongoing costs in running a registration system, with no significant value added. The other is that any system that requires per-work registration is going to privilege larger, more profitable copyright holders over individuals, non-profits etc.

I’ve never even really suggested this out loud because it seems the complete opposite of where things are going, as well as my own cynicism.  I’ve not checked but I presume such fundamental change would require international agreement/modification of the Berne convention terms, etc.

Are any of our legal team able to comment on this? I could be wrong, but my understanding is that not all countries with a copyright system have automatic ARR. Also, I am still keen to get a legal opinion on whether the NC clause in this license propagates to any derivative works, giving the original creator commercial rights over any derivatives.

 

Ma te wā

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Danyl Strype
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Leigh Blackall

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