International Law

Creative Commons Zero

By Karl-Friedrich Lenz

Creative Commons has launched a new instrument they call a “waiver”, with the name of CC Zero. The purpose of that instrument is to waive copyright protection as far as legally possible.

I am not quite sure how this works. Copyright protection applies in all Berne Convention member countries, and shall not be subject to any formality (Article 5).

That means that copyright protection kicks in independent of the will of the creator. Just as someone can’t “waive” the property right in an apple that grows on the tree on their back garden, authors can’t “waive” copyright altogether. You can give the apple to someone else or leave it at some public place for anyone to take, but no one can negate the property right as such.

Under German law, the German Federal Court of Justice ruled in a case dealing with graffiti on the Berlin wall that waiving copyrights is possible, but only as far as they are transferable and only individual rights (e.g. reproduction etc., BGHZ 129, 66, 72).

But even if that is possible, that does not mean that copyright does not exist initially. An author wishing to waive his rights would nullify these existing rights. He would be unable to prevent them from existing in the first place.

If so, there is no real conceptual difference between an author giving a license to reproduce freely and one waiving the right to prohibit free reproduction. This is a fallback position in the legal text, which works as a license in jurisdictions that won’t recognize the concept of waiver.

The legal text disclaims in section 4b) any warranty. This is only fair. If an author gives away his work to the public, there should be no warranty involved.

Full post as published by Lenz Blog on March 11, 2009 (boomark / email).