Creative Commons and Authors Rights Les extrmes se

Creative Commons and Authors’ Rights: Les extrèmes se touchent Duke Law School, October 24, 2005 Prof. P. Bernt Hugenholtz Institute for Information Law University of Amsterdam

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CC: Back to the roots of © • Utilitarian US vision of copyright law: – ‘Promote the progress of science and useful arts’, promote widest dissemination of works – Minimal rights, broad user freedoms • Reinstates formalities: – CC in lieu of ©, ‘some rights reserved’ • Shorter term of protection – CC ‘Founder’s Copyright’ emulates 14 -28 years term of first US Copyright Act (1790) 7

Authors’ Rights • Civil law countries: Fr, Ger, It, Sp, Lat-Am • AR rooted in ‘natural justice’ – Focus on author: moral rights – Maximal rights, narrow ‘exceptions’ • No formalities – Berne Convention prohibits formal requirements • Long terms of protection: – EU: life + 70 (exported to the US) – Ivory Coast: + 99, Mex: + 100 (!) 8

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Authors’ Rights: Moral rights • Inalienable rights of creators – Enforceable against 3 rd and 2 nd (!) parties – Limited waivability – Enshrined in 6 bis Berne Convention • Right of paternity – Author has right to be claim authorship (fame!) • Right of integrity – Author can object to abridgement, distortion, etc. that harms reputation 10

Creative Commons: Basic Rights • Right of attribution (always) • No derivative works (optional) • No moral rights in US Copyright Act – Except for visual artists (S 106 a USCA) • Whatever happened to 6 bis BC? 11

Authors’ Rights: Limits to Grant • No full assignment (Ger) • Purpose of grant rule (Ger, NL, Sp) – If terms unclear, grant is limited to such uses that are necessary to fulfill purpose of the grant • Specification rule (Fr, Bel) – Contract must specify licensed uses • Unknown/new uses excluded (Ger, Bel, Sp) • Reversal in case of non-use (Ger, It, Sp) • No ‘work made for hire’ 12

Typical ‘All rights’ Clause • ‘The Author transfers to the Publisher all rights in respect of all uses in any media now known or later to be developed, for the entire universe (including Puerto Rico). ’ 13

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CC & AR: Common Denominators • Author is master of the universe – AR: media are just users, not ‘right holders’ – CC: no intermediaries required at all, authors take the law in their own hands • Recognition of basic moral rights • Rights should remain with the author a. m. a. p. – AR: because they deserve it – CC: because that is good for the public domain 16

Synthesis: ‘Author’s Copyright’ • Moral rights for life – Inalienable rights of attribution and integrity – No formalities • Economic rights for limited term – Rights of reproduction and communication to the public – Formalities – Restrictions on transfer 17

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