Through Twitter we have learned a staggering new development in Portugal, which threatens Creative Commons licences and other open content licensing schemes. According to several reports, the Portuguese Socialist Party is announcing that it will push for a reform to its copyright legislation that will make economic rights inalienable and therefore cannot be waived or renounced. This would equalise for the first time moral and economic rights, the former cannot be waived in Continental Law traditions, but such status has never been awarded to patrimonial rights.
The proposal reads:
“Article 3, point 1 - The authors have the right to the perception of a compensation equitable for the reproduction of written works, in paper or similar support, for instance microfilm, photocopy, digitalization or other processes of similar nature.
Article 5 (Inalienability and non-renunciability) – The equitable compensation of authors, artists, interpreters or executives is inalienable and non-renunciable, being null any other contractual clause in contrary.”
This is a preposterous idea, and we can only hope that it will never see the light of day. Moral rights protect reputation and personality rights, while economic rights protect profit-making and an author’s right to be rewarded for the skill and labour spent in creating a work. The fact that these two protect different legal values has meant that they receive separate treatment, at least in the Civil Law tradition. The Socialist Party’s argument seems to be that authors should always be rewarded for their work, and that they do not have the right to renounce these rights.
The problem is that there are very good reasons why artists may not want to receive a monetary compensation in some occasions. Advertisement and promotion are very good examples of this. While we share the idea that artists deserve recognition and remuneration, this should not be in any way an inalienable right. Authors should be able to decide the economic strategy that they want to undertake, and this includes the use of innovative licensing schemes.
It seems like the Portuguese Socialist Party has fallen prey to the worst piece of propaganda about culture, namely that only those who profit from their work can produce cultural outputs. This is of course, a complete lie.
ETA: This is the original announcement in Portuguese by the Ministry of Culture:
Estabelecimento do carácter irrenunciável e inalienável das compensações de autores e de artistas, contribuindo assim para uma maior e mais efectiva protecção para os criadores e para a criação cultural.
Which translates as:
Establishment of the indispensable and inalienable nature of the compensation of authors and artists, thereby contributing to a greater and more effective protection for creators and cultural creation.
It is clear that they will equate moral and economic rights here.
ETA 2: David Maetzu has commented that this is very similar to the provision found in Art. 25.1 of Spanish Copyright Law, which reads:
“Reproduction carried out exclusively for private, non-technical apparatus or instruments typographical works are disseminated in the form of books or publications for this purpose should be classed by regulation as well as sound recordings, video recordings or other audio, visual or audiovisual will incur fair compensation for each of the three forms of reproduction mentioned […]”
This is different to the Portuguese proposal, because this is not an inalienable right. My main concern is that the proposed text will make it impossible to renounce this right to equitable remuneration, much like you cannot waive your moral rights in droit d’auteur systems.
ETA 3. Very interesting details in the comments section. It seems like this already exists in similar fashion in Spain and in Chile (I still think that declaring economic rights inalienable is a horrible idea, it barely works with moral rights). I’d like to see if this has ever been applied in those countries, and if so, if it covers licensing. Probably it does not, as in licensing one is not giving the work away, one is simply granting rights to third parties.
So it seems like the answer to the question posed in my title is NO.