Portuguese Politicians Want To Make Creative Commons Illegal

from the um,-wow dept

This is just insane. While we’ve talked in the past about how difficult it is to put your own work into the public domain by choice, apparently the Portuguese Socialist Party (which is currently in power) is trying to reform its copyright laws so that you can’t waive or renounce your copyright on anything. As the report notes, this would effectively make Creative Commons illegal. Even worse, it would effectively make it against the law for you to try to put your own work into the public domain! The proposed law states that:

The equitable compensation of authors, artists, interpreters or executives is inalienable and non-renunciable, being null any other contractual clause in contrary.

The Ministry of Culture apparently claims that it’s making this change to establish “greater and more effective protection for creators and cultural creation.” Except, of course, that’s not what this would do at all. Taking away the rights of content creators to free up their own works, and to either put them in the public domain or license them out in more permissive means, doesn’t help content creators at all. Those who want to keep the strictest nature of copyright laws still have that ability, but those who realize the importance of sharing their works to both establish a greater reputation and to contribute more widely to culture, would no longer be able to do so. What a ridiculous suggestion.

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Comments on “Portuguese Politicians Want To Make Creative Commons Illegal”

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48 Comments
Anonymous Coward says:

Re: Re: And...

“I can’t wait to see the cabal come out that shows the USCG or RIAA/MPAA behind this.”

The plan is for the U.S. to make other countries pass laws that make them look worse than the U.S. This serves some purposes.

It allows U.S. bureaucrats and politicians to grandstand about how we have better laws (ie: free speech, fair use) than those of other countries and about how our politicians pass better laws.

(what they don’t tell you is that the U.S. is partly responsible for the sorry state of their laws. and it would almost work if it weren’t for the leaks.)

It allows lobbyists to claim that other countries have ‘better’ laws than we do and that they’re ahead of us in this regard and so we need to ‘catch up’ by passing more draconian laws.

(and yes, the first two are somewhat contradictory but politicians and lobbyists are often contradictory in nature and don’t always make sense).

It also reduces the competition coming from other countries (encouraging them to litigate instead of innovate and create art and whatnot) which is good for U.S. sales.

and, of course, they hope to get other countries to direct money to the U.S. and/or into the hands of corporations through these laws.

anymouse (profile) says:

Re: Re: And...

we’ll be waiting for the wikileaks cable that shows this information…

The CABAL is the group of companies, purchased politicians and international organizations behind all these laws and back room deals, and they don’t like to be recognized or named. So now that you’ve named them (inadvertently of course, but making a mistake like a typo is no excuse for mere individuals, mistakes are only excuses when companies mess things up, like Sony ‘forgetting’ to secure their networks), so expect to be seeing their representatives very soon (as if you’d be able to see the black helicopters and men in black suits before they haul you away)….

Where’s the Sanctuary when you need them… I’m sure they would be willing to stand up to the Cabal… /sarcasm off

Call me Al says:

A possibility

Perhaps this is aimed at amateurs who are impacting the professional markets.

Various amateur photographers stick their photos up under a Commons license and websites can and do pick these up for commercial use (depending on the specific license). Some professional photographers have been screaming about this so it could be that situations like this are prompting the Portugese government to seek to protect their professional groups.

I think its ridiculous though. People should be able to make things free and copyright free is they want to.

DannyB (profile) says:

Re: Re: A possibility

While your statement is true, it is probably not what is going on here.

The commercial content creators (eg, photographers) are probably good at their craft. The problem is they are not any better than, and possibly worse than people who put their art out there for free.

Possibly a better complaint than the way you said it might be:

If you and your work are not good enough to command a premium price over something given away for free, then you don’t deserve to get paid. Alternately, if you cannot market the *perception* (even if false) that your product is somehow better or worth paying for (eg, bottled water vs free water) then you don’t deserve to get paid. The world doesn’t owe you a living.

PJ says:

Re: IFPI/RIAA Contract Impact

I was wondering this myself. Giving these politicians the benefit of the doubt, could this not just be an attempt to prevent the Big Media middlemen from using their gatekeeper position to extort the rights to works from their creators? If it is, then this is still a great example of unintended consequences in the great sausage-making that is modern copyright law, but the motivations may be less than nefarious.

Anonymous Coward says:

Re: IFPI/RIAA Contract Impact

This has extraordinary ramifications.

Stan Lee would have retained ownership the X-Men under a law like this.

If I wrote code for a company, I would retain copyright of that code. Any applications created by me would be owned by me and I could do with them as I wish.

Universities could not claim ownership of student’s works. Same with periodicals and researchers.

TechnoMage (profile) says:

Re: Re: Which University

You need to go to a better university (in that regards) if it keeps your copyright/patents/etc. Not all do, by any means.

I’m about to finish my senior capstone, in CS, and the university will be publishing it (to be bound in the library because I’m in the Honors program), and I have to give a copy of the code I wrote (to verify that I wrote it). But, I retain the copyright on work itself. It just has to be public, for peer review, etc.

Anonymous Coward says:

Re: Re: Re: Which University

>You need to go to a better university (in that regards) if it keeps your copyright/patents/etc.
>Not all do, by any means.

A very large – and growing – number do. It’s too bad government doesn’t actually serve the interests of the public, because we should outlaw that specific case, and get education back to its noble roots.

sheenyglass (profile) says:

Re: IFPI/RIAA Contract Impact

Indeed. In fact, if I read it correctly, then it would seriously impede even even copyright maximalist licensing. If an artist is entitled to inalienable, equitable compensation, then license terms would be infinitely renogotiable as everytime the potential income from the license changes, the copyright holder’s equitable share would also change.

Blaise Alleyne (profile) says:

What about software?

What effect would this have on free software licenses, like the GNU GPL or Apache or BSD licenses? How would that effect the use of Linux-based operating systems, like Android or many web servers, or other popular free software like Firefox, Chrome, WordPress… ? While this sounds insane enough for cultural works, it seems even more monumentally stupid when it comes to free and open source software, which relies on licenses that waive most of these rights at the centre of a lot of collaborative and commercial software development…

FatGiant (profile) says:

I am still trying to sort this out.

A few things seem to be related to this:

-SPA (Portuguese Authors Society) a collecting agency, is rooting for this.
-There’s a new levy being imposed on all devices capable to store or reproduce copies, like External HDD’s, Printers, etc.
-Apparently, still waiting for confirmation on this one, a Portuguese author decided to put ALL his work on the public domain after his death. The above mentioned SPA, and the author’s family have been trying to nullify his will.

The SPA, on its site, on their own FAQ’s says something like this (my own translation, subject to involuntary errors):
“There is an evident incompatibility between the emission of CC licenses and the collective management of musical and literary-musical works of the management catalog of the SPA. In effect, if the author (national or international) doesn’t inform, previously, the collective management entity that he pretends to license a specific usage of the work, the simple CC license will not be enough to avoid the duty/right of collecting the authors rights.”

So, I do make a intuitive reading of all this, and I do see a picture forming. The government intents to start collecting a tax over the private copying, and is setting up SPA to collect it, with such powers as to not even works published under CC0, are exempt of the tax.

An example, you have a business, and you play music from Jamendo Radio. All that music is licensed under CC. The SPA, will tax you for distribution, even if you prove you don’t ever play any other station or music.

In effect, this law will make the use of CC in Portugal, illegal, useless and unenforceable.

Some, here, are saying that this only a draft, that the party proposing it is not even in power (elections next month) and that all of this is just smoke. Maybe. Maybe not.

Anonymous Coward says:

Well, this is fucking great. The government has just collapsed (the prime minister quit, but is running again for the government…yeah, you try to get your head around that), which means that it is time (as tradition demands) to pass as many laws as possible while the government is running in “autopilot” mode until the next elections (this “law” included). The funny thing is, the PS (Partido Socialista – Socialist Party), is probably going to get elected again, which gives them yet another chance to pass this ridiculous law.

Seriously, I like my country and all, but our political landscape has become a cesspool of incompetence and corruption.

Markus Hopkins (profile) says:

Contractual Clause

I’m a little confused here. I get what some commenters are saying about what it looks like the government is trying to do, and I see that an attempt to nullify an author’s will giving his works to the public domain may be a factor in creating the desire for this, but a will is not a contract, nor is a general CC license. If renunciation of rights is only null in contractual terms, then this seems to have the effect described above of Stan Lee keeping rights to the X-Men, not preventing authors from willing things to the public domain or their children. Then again, that short statement is probably just inaccurate generalized language…

Anonymous Coward says:

Re: Contractual Clause

And this is where the disconnect between the common and legal meaning of words is, and why it’s dangerous for us commoners to interpret them 😉 (Myself included, as IANAL)

When you create a work and it gets automatic copyright protection, various exclusive “rights” are reserved to you, such as the exclusive right to “commercially exploit” the work and the right to “prepare derivative works”. When you release your work under, say, CC-BY-ND, you have given up the exclusive right to commercially exploit the work (but retained the exclusive right to prepare derivative works), in order to extend that right to others.

Maybe “non-renunciable” only applies to putting a work in the public domain, but “inalienable” certainly seems broader. It seems to say you can’t deny yourself the right to profit from use of your work….which is exactly what CC-BY/ND/SA (with no NC clause) does. Others can use your work without paying you.

Now, I don’t know the specifics of Portuguese copyright law, but I do think some of the interpretations here are getting too excited and need interpretation by an actual lawyer. For example, when you create a “work for hire”, does the copyright ever belong to you in the first place? You can’t give it up if it’s never assigned to you to begin with.

Anonymous Coward says:

Re: 2/2

Even so, if this is interpreted by the court as only preventing you from dedicating a work to the public domain, that is still troubling enough. That’s where works are supposed to go, eventually. Copyright is supposed to be limited, and supposed to encourage the creation of new culture that, eventually, we all get to enjoy. There is no legitimate reason to prevent an author from hastening that process. It’s purely anti-competitive: “if you share too much, others can’t extort huge fees for THEIR work. Keep culture locked in chains for maximum profits!”

concerned citizen says:

its all in the wording

may sound silly but…..
pretend to charge $100 for the work and then next to the option to buy put the option for a “sample” that includes the whole thing as a torrent. include in the EULA that the user is free to duplicate and give out “samples” and call it advertising (if you like it buy the “full album”).

make the “full album” contain an extra track to make it all legit but make this extra track just someone banging rubbish bin lids for 3 minutes.

if its a game make it so that the paid versions contain an extra skin per character or something really insignificant (but really visible to negate any unintended advantage) but can still play with the trial versions and release without any DRM.

for movies contain a scene of the characters banging rubbish bin lids for about 1 minute after the credits as one of those sequel hook things then retcon it out in the next movie.

if its an art movie the rubbish bin lid thing would fit right in.

for images…… add some text in notepad that says “paid version” and make one pixel in each of the corners black.

state in the Eula that there are no restrictions on how said user may modify or remix or include said work in other works(call it free advertising) only that in remixes you need to give credit to the copyright holder.

just like the creative commons. only under the copyright logo. all in the wording. (and the rubbish bin thing could be a form of mocking these rules too)

nelsoncruz (profile) says:

Creative Commons should not be affected

As I already commented on technollama, it?s not the Ministry of Culture’s intention or interpretation that this will make Creative Commons licenses illegal. That Article 5 concerns the distribution of the proceeds from the private copy levy collected on recordable CDs, DVDs, and, if this law is approved, external hard disk drives as well.

This levy is meant to compensate authors and artists for unauthorized copies made for private use. If something is published with a CC license, at the very least, non-commercial copying is already explicitly authorized. No compensation is needed, so this Article 5 doesn?t apply.

This proposal is just a replacement to the current law regulating the private copy levy. It only makes one change to our copyright code (called Author?s Rights here) and it?s unrelated to this. I think significant changes would have to be made there to stop open licenses.

It seems to me the intention of Article 5 is to make void any contracts that transfer an author?s private copy compensation to his label/publisher/whatever. Nothing else. Otherwise it could also make many record contracts void, and the labels would be up in arms for sure! Spain has a similar provision in it’s law, and CC licenses are fine.

One good thing about this proposal: if you publish a work with DRM (which blocks private copies), you get no compensation. It would be VERY interesting to see if any publishers drop DRM in order to keep getting their piece of the levy.

One stupid thing about this law is a 60? levy on 1TB “multimedia external drives”, while a standard 1TB external drive pays 20? and a multimedia player without storage pays nothing. So guess what people are gonna buy if this passes…

I wrote my own analyses on this law (in Portuguese) here:
http://www.pcmanias.com/ainda-a-proposta-de-lei-da-copia-privada/

R. says:

Portugal is probably the worst violators of copyright laws.

Funny, Portugal addressing Copyright laws? The University students in Portugal Xerox material instead of buying books and its a practice advocated by the University staff. That’s right. All nicely bound by the local printer down the street and sold to the students. Copyrights and Portugal, what a joke.

nelsoncruz (profile) says:

Re: Portugal is probably the worst violators of copyright laws.

Being Portuguese I can confirm the rampant xeroxing in colleges. And Portugal is also the country were judges and lawyers download movies from the internet… or so I have been told.

The authorities have actually been cracking down on photocopying entire books, although there are some doubts about whether it is illegal under current law (which allows copying for educational uses, without limiting the size of the copy). If this new law is approved every copied page will pay a levy of 2 eurocents, and 75% of that will go to authors and publishers of technical and educational books. Doesn’t clear up whether its legal to copy entire books, though.

nelsoncruz (profile) says:

Creative Commons Portugal has made a statement

Going back to CC licenses, Creative Commons Portugal has issued a statement claiming they are not affected by this new law. CC licenses 3.0 specifically address collectively managed rights, waving them where possible, and reserving them to the author where they are non-renunciable. So, if this law passes, CC authors in Portugal will be forced to reserve/keep the right to go collect their share of the private copy levy from the collecting society. But that should be the only consequence.

I still have doubts whether authors of CC licensed works have the right to any compensation for private copies, but the lawyer from CC PT thinks they do. This could lead to a ridiculous situation where CC authors get no money from public or radio performance, but get money for private copies.

PG says:

Portuguese Politicians Want To Make Creative Commons Illegal

Hav’nt Portuguese politicians better things to do , like getting the country out of a mess .
All they seem capable of is passing restrictive legislation and playing politics , not running the country to the best of their ability for the citizens , which is what governments are there for .
Definitely a third rate government and politicians in the country

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