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Why are there issues with public domain in Europe, that forces public domain projects to use CC0, 0BSD, Unlicense or other similar licenses?

I.E. why is it that, when someone dedicates a work to the public domain, someone in Europe can still get into trouble for using it? Isn't the copyright holder the only person that can sue? Or is there some other law in Europe?

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    There have been many cases where someone uses a work with permission of the author but then when the author sees the result of the new work says something to the effect of "I don't like it. I don't want my work to be used like that". In the US, once the author has sold, licensed, or given away a permission to copy that is the end of it and the user can publish the new work even if the author does not like it. But if the law says there are rights the author cannot give away the author can always come back and end the new project – slebetman May 28 at 17:22
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With respect to my colleague planetmaker, public domain is not a US-specific concept. It dates back to the first copyright law in the world, Britain's 1710 Statute of Anne, where it was referred to as publici juris ("of public right"). French jurists further developed the idea and we see the term "fall into the public domain" entering the discussion in mid-19th Century France, to refer to the fate of a creative work after all the time-limited rights reserved to the creator expire.

The problem to which I think the OP is referring is that of moral rights. Some implementations of copyright law recognise more controlled rights than the economic right - the right to exploit the commercial potential of one's creation. In particular, many jurisdictions recognise the creator's moral rights - the right to be attributed as the creator of the work, and the right to the integrity of one's work (that is, the right not to be attributed as the creator of modifications of one's work of which one does not approve).

The problem is further compounded because in some jurisdictions, primarily civil law ones, the author's moral rights are inalienable. That is, the author cannot lawfully give up those rights, however much (s)he wants to. France and Italy are examples of such jurisdictions.

In those jurisdictions, if an author says "I have no interest in this work, do as you please with it", you cannot know that (s)he intended to waive his/her moral rights. The author might know full well that those rights are inalienable, and intended only that others should have the right to profit from his/her creation. (S)he might well turn out to be very annoyed if an "unsuitable" adaptation appeared, and his/her name was associated with it without even a by-your-leave.

That said, this risk isn't huge. I don't think I've ever heard of it happening in respect of a work where the creator had abandoned his/her economic rights. Secondly, if it does, then it seems to me that changing the name of the project and removing all references to the original author will likely suffice.

But for those seeking clarity, licences like CC0 are specifically intended to implement a simple method of putting a work into the public domain in so far as is legally possible in any given jurisdiction. As Creative Commons note:

many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain.

CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law

Using a licence like this makes it clear that you, the creator, are relinquishing all legally-relinquishable control of your work, and would like to go the whole way if you were permitted. Anyone who chooses to use your work can then decide for him/herself what sort of jurisdiction (s)he's in, and respect moral rights if that's what the local jurisdiction requires. Anyone using that adaptation can know that the original author intended this to be possible, and is therefore particularly unlikely to start filing suit.

Edit in response to OP's additional questions:

I have seen several people say that certain jurisdictions do not recognize the right to waive copyright and/or moral rights. But who can enforce that?

Nobody has to enforce it. In those jurisdictions, the author simply can't waive those rights, however much (s)he wants to.

Can someone other than the author sue

That will be jurisdictionally-dependent, and is beyond the scope of this site.

can the author act in bad faith claiming that the public domain dedication is legally unenforcable even though the intention is clear?

No bad faith is required. In such jurisdictions the moral rights aspect of the public-domain dedication is indeed invalid, however clearly the intention is expressed.

The utility of CC0 (and similar licences) is to clarify that the author intended to waive even the moral rights wherever possible, and is thus unlikely to sue in those jurisdictions where (s)he retains them. One could argue under the doctrine of promissory estoppel that an undertaking had been given not to enforce those rights, even though they couldn't be waived, and this might well provide a defence if a creator were ever to sue. Failing that, the mitigation measures I outline above aren't exactly painful.

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  • I specifically wrote "public domain" as "legal term" - not a concept. As 'legal wording' is what matters here, not so much the idea. – planetmaker May 27 at 7:14
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    I'm terribly sorry, but in non-English-speaking countries, law is generally written in the local language. If you're not willing to engage in translation then your analysis can only ever stretch to the English-speaking world. Even there, I don't think your claim stands up; here is the National Library of Wales discussing copyright and the public domain; since they are one of the UK's six copyright libraries (Copyright Act 1911, Legal Deposit LIbraries Act 2003) I suspect they are well-qualified to speak on this matter. – MadHatter May 27 at 7:42
  • Yes, translation is probably 90% of the issue here. It's a fixed phrase in US english legal context which allows several interpretations in different jurisdictions, especially if translation is necessary. Thus it needs a license like CC0 which takes care of this (and offers even translated legalese) – planetmaker May 27 at 7:57
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    @planetmaker I can't agree, as I think my answer - and example from the context of the law of England and Wales - makes clear. I don't think public domain is an unclear concept anywhere the Berne Convention holds sway; instead, I am fairly sure the issue is the usual moral rights chestnut. Still, I've said my piece, you've said yours, hopefully at some point the OP will come back and let us know what was on his/her mind. – MadHatter May 27 at 7:59
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    A more precising wording of my question would be, I have seen several people say that certain jurisdictions do not recognize the right to waive copyright and/or moral rights. But who can enforce that? Can someone other than the author sue, or can the author act in bad faith claiming that the public domain dedication is legally unenforcable even though the intention is clear? – Max Xiong May 27 at 12:39
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I will give an example specifically for the jurisdiction that I am most familiar with, which is Germany.

Germany doesn't have "copyright". We have "Urheberrecht" (literally translated "Originator's Right" or "Creator's Right", but usually translated as "Author's Right"). In German Author's Right, there is a notion of the work being somehow a "brain child" of the author. There is a connection between the author and their work that goes beyond any form of commercial interest, that is almost metaphysical. (In German literature, this is called the "Band" (roughly "bond") between a creator and his work.)

This is also the reason why it is simply impossible for corporations to be authors and thus hold Author's Rights, whereas it is completely normal for corporations in the US to be copyright holders.

Urheberrecht is split into two distinct subgroups:

  • Persönlichkeitsrechte (literally "Personal Rights", but usually called "Moral Rights").
  • Verwertungsrechte ("Exploitation Rights").

The Moral Rights, in particular, are:

  • Full Control over publication. The author has full control over if, when, and how the work is published. This includes not publishing it at all.
  • Recognition: The author has the exclusive right to control if and how their name is attached to the work, and which name to use (the real name, a pen name, a pseudonym, "anonymous"). Conversely, the author also has the right to have their name removed from a work.
  • The work must not be "defaced", and this is interpreted somewhat broadly. The starting assumption is that the work, as created by the creator, is the perfect version of itself, and even an "improvement" is actually worsening it.

These Moral Rights cannot be transferred and cannot be given up. (Remember the "bond" between an author and their works.)

That is the reason why you cannot "put a work in the Public Domain" in Germany.

But there are also limitations on the "Exploitation Rights" (which correspond more closely to e.g. the US idea of copyrights).

There was a landmark case a while ago (I unfortunately don't remember the name, it was a case at the Bundesgerichtshof and it must have been before 2000) that restricted the rights that an author can sign away. Roughly, journals and magazines started to create digital archives with search engines, and sold these archives or access to them. (Seems obvious to us now, but wasn't nearly so in the 1980s.) Journalists typically had contracts with the magazines / journals stating that all exploitation rights for works created in the employ of the magazine belong to the magazine.

The court found that, even though the journalists had signed away "all rights", that actually only meant "rights for usage that commonly existed at the time the contract was signed". Since the lawsuit was about creating archives of old content, the court found that, e.g. for articles written in the 1950s, 60s, 70s, the right to use the articles as part of an electronic database was not included, even though the journalists had explicitly signed away "all rights". The court argued that, since this kind of usage did not exist before, you couldn't have willingly agreed to give up your rights to it.

So, even if you interpret "Public Domain" as "signing away all exploitation rights", that *still doesn't work in Germany", because "all" doesn't actually mean "all", it means "all, as far as we know today".

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  • In Germany, who can enforce these rights? – Max Xiong May 27 at 16:43
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    @MaxXiong Essentially, the holder of these rights, which is the original author or later their heirs - and inheritance is the point where these rights can be transferred and even to non-natural persons (a famous example was that the State of Bavaria inherited the copyright to Hitler's Mein Kampf and thereby could fight its production and distribution - until 70 years after 1945) – Hagen von Eitzen May 27 at 20:54
  • Duplicated from my comment on another answer as also relevant here - Data point, maybe: Somewhere in his writings i found C S Lewis inviting readers to add to his "Narnia Chronicles". He specifically notes that there are gaps in some places which invite extensions of the TL,TW&TW world and says there are clear ones in "The Voyage of the Dawn Treader". | I suspect that the modern day CSL machine would react unfavourably to anyone taking up the masters invitation. – Russell McMahon May 28 at 4:01
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    @RussellMcMahon, I am not sure how much of a data point that is. C S Lewis is effectively giving a non-exclusive license to create derivative works. I am not aware of any copyright law that doesn't allow such a license. – Bart van Ingen Schenau May 28 at 11:46
  • @BartvanIngenSchenau Notwithstanding, I'd be surprised if CSL's estate and related organisation did not legally oppose such attempts. – Russell McMahon May 29 at 22:59
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It's actually very simple:

  • The term "public domain" is not a legal term, it's strictly US-specific. So it bears no meaning legally outside US. (So in reality US is special here, not "the rest of the world".)

  • You cannot give up authorship nor copyright. If you want to concede rights for everyone to use your work in perpetuity, use words (a license) which does bear legal meaning - so that they can rely on the words of the license to hold up in court.

So yes, of course you, as author, can write "I put it under public domain". And no-one will be in trouble, if you don't go to court as author. But due to the circumstance that it is not a legally - defined term you can come at any later time and still sue for infringement. That's why people insist on a license to make clear that work can be used under a CC-0 license or similar.

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    So you are saying, some one can troll and sue in a different country by stating their work is in the public domain, and then proceeding to claim in court that such statement has no legal meaning? – Max Xiong May 27 at 12:31
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    @MaxXiong: realistically, I doubt it: I would expect that most jurisdictions will attempt to figure out what the statement "I hereby put this in the public domain" should be understood to mean in the context of the case. I'd hope they're liable to come to the conclusion it means the author is granting some level of general permission to use the work, even though they didn't use conventional wording to do so. Especially if the plaintiff is trolling. But, like MadHatter says, they can't take it to mean any waiving of rights that, in that jurisdiction, cannot be waived. – Steve Jessop May 27 at 13:37
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    The point of licenses like CC0, though, is to remove doubt. Just because I (the author) expect and hope that I've successfully abandoned my economic rights, and you (the re-mixer) expect and hope the same, doesn't mean you'd be confident enough to actually use my work for any purpose where, if I later change my mind when I see what you've actually chosen to do, I can stop you or charge you a royalty. So, if I want to encourage you to use my stuff, I use CC0 -- not because I'm worried I might change my mind, but because I anticipate you might be worried. – Steve Jessop May 27 at 13:40
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    @MaxXiong No, a PD dedication is simply something that does not exist in that legal system, just as it is meaningless to flobricate your schmirpschmorp-rights. The CC0 instrument takes a three step approach: in jurisdictions where PD dedication is possible, it serves as a PD dedication. As a fallback, all rights that can be licensed away are licensed (this simulates the effect of PD using ultra-permissive licensing terms). Finally, if some rights cannot be licensed, the CC0 is a promise that they won't be enforced. – amon May 27 at 14:27
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    Agree with supercat. Unless indicated otherwise, courts assign words their ordinary meaning, i.e. the meaning that a typical person would give them. That is why it's common for contracts to define specific terms and to capitalize them; it makes it clear that the specific word has a specific defined meaning in the contract which may differ from ordinary use. The same rule of usual interpretation also causes "PHREEE" to mean "free", in the absence of a specific, agreed-upon interpretation. "Public domain" as a term is becoming established outside the US as a term with a usual interpretation. – MSalters May 27 at 16:04
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In France authors (including authors of software, even open source ones paid by their employers or clients) have a moral right which cannot be transferred (e.g. to the employer or client).

The CECILL license has been carefully designed to be compatible with French laws.

You might be interested by joining OpenSource.org providing some expertise and hints about many open source licenses.

In France, the APRIL and AFUL non-profit organizations has several legal arguments (usually in French) related to your question. And the French Systematic competitiveness cluster has written a good summary related to legal aspects of open source licenses. The topic is really complex. You could also contact EFF and (in the USA) the FSF (and in French, La Quadrature du Net or FramaSoft).

Your question is a very difficult one, and you should contact a lawyer.

Notice that the GPL-violations.org website is located in Germany.

Isn't the copyright holder the only person that can sue?

As far as I know, this is false in France. If you are paid for coding, the code is usually (at some point) copyrighted by your employer or client, but you can go to court (e.g. to defend your moral right).

Of course, I am not a lawyer !

PS. Disclaimer: I am employed by CEA, one of the organizations driving that CECILL license (and member of Systematic). I am, as a private individual, member of APRIL and AFUL and FramaSoft.

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  • That's still the rightsholder suing, only it's the moral rightsholder, not the economic rightsholder. Since the OP is clearly confused about the distinction I'm not entirely surprised the confusion gets all the way down to the bit of the question you just referred to. – MadHatter May 28 at 7:05
  • I'm just wondering why this is a problem, I'm not actually in the EU – Max Xiong May 28 at 16:40
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    @MaxXiong: Are you planning to make your software available in the EU? – Jörg W Mittag May 30 at 8:24
  • Just on github like evryone else does... I'm just using MIT anyways – Max Xiong May 31 at 12:42

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