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Malevé, Nicolas

Refugees in a contractual utopia

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Licenses and Author’s Right Law

First thank you to Natxo and all the people who took part to the organisation of this event. I want to start with a parallel between the evolution of the free licenses on one hand and the evolution of the core Author’s Right Law on the other.

As you probably know, the creation and adoption of new licenses have grown significantly these past years. In software, first, and after that, in culture and science. It is really impressive to throw an eye on the amount of licenses that exist nowadays

see list of free/non-free licenses.


Refugees in a contractual utopia

One optimistic explanation of this growth may be that people, you and me, professionnal authors/creators or amateurs, hobbyists, fans, hackers have rediscovered the meaning of sharing, a greater sense of community and think of free flow of information as an ethic. A pessimistic undertone of this explanation is that we have lost faith in the Author’s Right system as implemented in the law and we have greater trust in contracts, licenses that reformulates it according to our needs. Doing this we create islands where another set of rules applies. The idea behind all this being that the size of the island will be bigger and bigger. And that the adoption of free licenses will grow until we reach a critical mass sothat what was started as an exception, particular contracts, becomes a better global rule. Copyleft island would reach the size of a continent. Pessimistic undertone, I said. Because this means we have abandonned the idea that the Author’s Right Law could evolve intelligently under the current regime. And we have everyday more and more reason to be pessimistic in this regard. Refugees in a contractual utopia, we are.

Exceptions as a limit to monopoly

The separation between the "Free world" and the current regime of Author’s Right is not clear of course. As Laurence explained, copyleft and other free licenses are based on copyright. They reformulate it, transform it. This reformulation has taken our attention. But let’s have a look at the evolution of the Author’s Right these past years. If we see the great activity of license creators and users, we have to see that the core of the Author’s Right Law has evolved significantly, too. Contrarily to what we may think, the Author’s Right regime Europe was so proud of is barely recognisable today. If the interest in free licenses could be interpreted as a willingness to share, what to say of the changes in the Author’s Right Law? The difference between the European Author’s Right and the Anglo Saxon copyrights is eroding everyday. The adoption of the EUCD at the EU level has introduced unexpected control over the circulation of digital information. And the legal harrassment based on claims of copyright infingement is used in European Court to silence political dissent.

The dangerous effects are numerous and I can only comment briefly on one of them which is the evolution of the way the exceptions to Author’s Rights are perceived in the jurisprudence. And how they enter in conflict with trademark law. To summarise quickly, exceptions have been brought in the different European legislations with unequal implementations. An exception to Author’s Right is a limit to the private monopoly of an author on her creation for reasons like teaching, parody, private copy(backup), access for handicaped people, ...

Silence political dissent

I will go through some recent examples that give a sense of concrete reality to this.


The Italian company, autistici, hosted a website without doubt critical towards Trenitalia, and criticism was expressed as satire through the detournement of the company home page, where you could discover with a sarcastic and ironic design how Trenitalia offered his cooperation in the Iraq war allowing the transport of weapons on the Italian territory. It was a collective artistic work made by a designer group, as one could discover visiting the site. Trenitalia attacked Autistici. After a first hearing on 3 August 2004 the judge ordered to comply with all the demands of the plaintiff, including the obligation to invest aprox. 20.000 euro in publication of advertisements in the 2 national newspapers. As a sign of protest, a large amount of internet users made mirrors of the website and helped spread the word about such an outrageous decision. Fortunately, the court of Milan, after having heard the defense of autistici on 7 September 2004 decided to overrule the preliminary proceeding, and acquit the provider from all charges.

Monopol(y) HABRO vs Michel Collon

The writer Michel Collon had similar problem when his editor published his last book entitled Monopoly, Nato Conquering the world. This book was criticising American politics and maoeuvres within the NATO organisation.The satirical cover of the book was using the metaphor of the game Monopoly.HASBRO the firm which owns the brand Monopoly attacked the editor of Michel Collon for trademark infringement. Noteworthy, one of the former administrators of the HASBRO firm was Paul Wolfowitz and the connection between the Bush administration and the business group is easy to demonstrate. Due to the solidarity of internauts, a journalist of the newspaper De Morgen followed the case and heped put pressure on the firm. The parties settled an agreement. The second edition of the book would remove the image of Monopoly from the cover, but the first edition could be sold as planned.

My comments on these cases.

The exception to Author’s Right is going weaker. It is an exception to someone else’s right. Not a right you and me have. And therefore submitted to negociations which result often in high expenses that you cannot afford. What makes these cases even harder is that they are not only parodies/satyres of existing works but also trademark infringements in a world colonised by brands and logos. One aspect of these exceptions for parody, which is extremely important for me, is that they deal with Author’s Right on the basis of the content of the derivative work. The content of a derivative work, the parody, the political satyre, matters in these cases. They have to be considered by the judge. the derivative work is not considered as a black box for which I have paid enough money or not, for which I have the appropriate permissions or not. Intelligent author’s right laws should start there, should start facing the problem of the content of the work rather than reinforce legal formalism. If we recognise that context matters in the exceptions to Author’s Right, that content has to be taken into account, this means we need to invest time and energy in building jurisprudence. We need to regularily come back from the copyleft islands to the Author’s Right continent, and show solidarity to the polemists and activists that pay the price of the instrumentalisation of the law by interested parties, we need to adopt strategies of communication and support.

Because, as a contractual refugee myself, I fear the day where parody and satyre will only be granted for a work released under a Creative Commons License 3.4 -some criticism reserved.

We have made the modules, let’s hack the kernel

To conclude I want to stress the point that often the Creative Commons licenses and other free licenses are communicated as the solution to the problem of Author’s Right. They are one part of the solution, it is true, and one that can get you started here and now. But they don’t solve the problem as a mathematician solves an equation. Because of their dependency on the Author’s Right Law, the free licenses cannot compensate all the failures of the system. Worse, they are affected by it. The challenge for the "free culture" we are part of is to affect the culture globally. To do so, it has to inspire us the courage, desire and energy to reclaim a more subtle Author’s Right legislation. We have made the modules, let’s hack the kernel!

See also

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