Is Portugal about to make Creative Commons illegal?

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.

15 thoughts on “Is Portugal about to make Creative Commons illegal?

  1. I'd love to see them try to enforce it.

    It will cost many man hours to do so, will fail catastrophically, and then will be quietly abandoned.

  2. It’s not their 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.

    It seems to me the intention of Article 5 is to make void any contracts that transfer the author's private copy compensation to his label/publisher/whatever.

    One good thing about this proposal: if you publish anything with DRM, you get no compensation. :)

    • Hi Nelson,

      Thanks for the clarification. I also guessed that the intention was not against CC, but I still think that this would make open content licensing rather difficult, as the way in which the article is worded would leave open the question of the irrenunciability of remuneration.

      I hope I am wrong.

      • This is still a proposal, and hasn't even been presented in Parliament (elections are pending). It will probably be ammended and clarified there. But still, it clearly mentions "equitable compensation" (for private copies), not remuneration in general. And this is done though a collecting society, not directly from users to authors. It just means that if the levy managing society thinks you deserve compensation, you cant deny or transfer it to someone else.

        This law is just a replacement to the current law regulating the private copy levy. It only makes one change to our copyright law (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.

        Long before CC there was a tradition in this country for "public domain declarations". I dont think anyone wants to end that.

  3. I am by far not an expert on this area, so I might be wrong with the following.

    I think you are mixing up two terms, the copyright and the right of how to use and distribute your work. In Germany, too, you can never let go your copyright. But you can e.g. sell or release all rights for the use of your work, being two different things. You'll always be the author and thus copyright holder, but this doesn't cover at all how your works are used.

    So I think it will have no effect whatsoever on the creative commons. Would be nice to hear from some expert on this to verify, as, again, I'm not 100% sure myself.

    • Daniel, you are confusing moral rights with economic rights. Moral rights are authorship (being identified as the author of your works) and integrity of the work. They cannot be sold, transfered, etc. They are inalienable and non-renunciable, and always have been.

      Economic or exploration rights are the "normal" stuff (copying, distribuition, performing, adapting, making derivative works, etc). These are the rights authors tipically sell to their labels/publishers/whatever.

  4. Hi:

    From the 25.1 spanish Law:

    "This right will be irrenunciable for authors, artists and performers".

    You must consider that the levy for private copy doesn't affect Creative Commons, because the author who license with Creative Commons always grants you the right to reproduce the work. Private copy is just for non "authorized by the author" copies, but you are authorized by the license.

    There's no way this mesaure, in case it's approved, will result in a ban for Creative Commons in Portugal, otherwise in Spain we hadn't had Creative Commons…

  5. Hi Andrés, the Chilean regulation has the same norm as Spain. Artículo 86 "son irrenunciables los derechos patrimoniales que esta ley otorga a los titulares de los derechos de autor y conexos (…).

    I do not necessarily see a problem with licensing. The complicated aspect of the Chilean regulation is that one of the items that integrates the public domain are does works whose owners renounced the protection provided by this law. Artículo 11 letra c: pertenecen al patrimonio cultural común "las obras cuyos titulares renunciaron a la protección que otorga esta ley". Then, it is not clear how do you deal with these two norms.

  6. Elisa and David,

    Thanks! I'm bit flabbergasted as I do not see why Spanish and Chilean law make economic rights inalienable, am I alone in thinking that this is unworkable in practice? I can now see that this doesn't necessarily cover licensing, as technically I am just granting rights, not giving them up. However, I see that this seems to make public domain dedications and CC0-like licences rather problematic.

  7. Hi:

    In Spain this is applied every day, all the noise about digital levy from Spain is related to that.

    The wrong point is that this is not about economic rights regulation, it´s only about the compensation for the right to make private copies. Just that.

    And if you use a work under Creative Commons you don't make a private copy, because you are autorized by the owner not by the law, and then you don't have to compensate anyone.

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