thanks Miguel, very useful! On Wed, Jul 20, 2011 at 4:42 PM, Miguel Afonso Caetano < [email protected]> wrote:

Hi Michel,

2011/7/20 Michel Bauwens <[email protected]>:

...

http://www.technollama.co.uk/is-portugal-about-to-make-creative-commons-ille...

...

Dear Miguel,

is this something you could report on for us?

I think there was an overreaction. I'm afraid the whole thing was somewhat blown out of proportion. This proposal only concerned the compensation collected by the Portuguese collective copyright agencies with every media that enables the copying of content in exchange for the right granted to consumers to make private copies of the CDs, DVDs and books they legitimately bought. Basically, it would disallow authors who want to receive that compensation to publish works with CC licenses. But since those authors have already renounced the right to receive any compensation for any copy/reproduction made for private, non-commercial uses, this proposal wouldn't apply to them. A few weeks later Creative Commons Portugal released a statement corroborating this interpretation:

http://www.inteli.pt/uploads/cms/20110617183817_Proposta_de_Lei_da_Copia_Pri... .

On the other hand, there could be a problem with works published with non-commercial licenses. These authors wouldn't just be able to receive any compensation from private copy. Overall, I would say that the worst effect this proposal could have would be to enforce a discrimination of CC licenses. This wouldn't be too much of a surprise, anyway, because the text was mostly the output of a collaboration between the now extinct MInistry of Culture and SPA (Sociedade Portuguesa de Autores), as well other collective copyright societies. The biggest problem is that Portuguese authors who want to ease the work of collecting royalties from the commercial exploitation of their works and at the same time have those same works published with Creative Commons licenses can't sign in to SPA because basically this collective society doesn't allow its members to establish any contract with other organizations besides SPA:

http://www.spautores.pt/destaques/vamos-penalizar-cooperadores-que-nao-cumpr... . In other words, they have to individually negotiate with interested parties.

Anyway, since this proposal was revealed a lot of changes occurred in the Portuguese political scenario: the general elections that happened in June 5th brought a new coalition government situated at the center-right wing of the political spectrum. Nonetheless, I'm afraid that the real danger is yet to come. That is because the new government has already announced that it's his intention to present not only a new law regarding private copies but a second law against piracy: http://tek.sapo.pt/noticias/internet/governo_promete_leis_para_pirataria_e_c... . I really don't know what to expect from the latter, but I think the former will be just a rehash of the first proposal with the most controversial articles striped but still expanding the tax for private copies to storage media like external and internal HDs, cellphones with multimedia players, iPods, tablets, etc. This is the same kind of law that has generated a strong opposition in Spain against the government and SGAE ("canon digital").

Best regards from Portugal

...

I'm wondering if it is possible to have an attitude that makes it

possible

...

to share and alienate rights to the commons, but not to corporates?

this would address some of the concerns of the portuguese lawmakers?

Michel

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thanks for the details, feel free at any time to offer an analysis for publication at the p2p blog, Michel On Thu, Jul 21, 2011 at 10:15 PM, Marcos Marado <[email protected]>wrote:

Michel and Miguel:

On Wednesday 20 July 2011 10:42:40 Miguel Afonso Caetano wrote:

...

Hi Michel,

2011/7/20 Michel Bauwens <[email protected]>:

...

http://www.technollama.co.uk/is-portugal-about-to-make-creative-commons-i

...

llegal

Dear Miguel,

is this something you could report on for us?

I think there was an overreaction. I'm afraid the whole thing was somewhat blown out of proportion. This proposal only concerned the compensation collected by the Portuguese collective copyright agencies with every media that enables the copying of content in exchange for the right granted to consumers to make private copies of the CDs, DVDs and books they legitimately bought. Basically, it would disallow authors who want to receive that compensation to publish works with CC licenses. But since those authors have already renounced the right to receive any compensation for any copy/reproduction made for private, non-commercial uses, this proposal wouldn't apply to them. A few weeks later Creative Commons Portugal released a statement corroborating this interpretation:

http://www.inteli.pt/uploads/cms/20110617183817_Proposta_de_Lei_da_Copia_Pr

...

ivada_NAO_ilegaliza_licencas_CC.pdf.

The devil is in the details. The *purpose* of that text in the proposition is to make the author legally unable to abdicate or transfer its levies rights. CC 3.0 avoids that because it has provisions for such a case, basicly stating that "if one can't adbicate from those levies, than this license doesn't try to do so". *But*: 1) AFAICS, prior versions still have the problem; 2) This still affect other licenses, from what I can understand (GDL, for instance); 3) This is an effective showstopper for those wanting to give their copyright to the Public Domain (which might very well have been SPA's hidden agenda on this clause, if we take into account the rumours).

...

The biggest problem is that Portuguese authors who want to ease the work of collecting royalties from the commercial exploitation of their works and at the same time have those same works published with Creative Commons licenses can't sign in to SPA because basically this collective society doesn't allow its members to establish any contract with other organizations besides SPA:

http://www.spautores.pt/destaques/vamos-penalizar-cooperadores-que-nao-cump

...

rem-a-regra-da-exclusividade-contratual. In other words, they have to individually negotiate with interested parties.

Let me just add a little note: while the actual Portuguese Law states (and well) that an author *is* the author (legally) just by creating, and is not forced to join any collective agency or association in order to be seen as such, there are some *rights* authors have that can only be excercises through such a body.

...

Anyway, since this proposal was revealed a lot of changes occurred in the Portuguese political scenario: the general elections that happened in June 5th brought a new coalition government situated at the center-right wing of the political spectrum. Nonetheless, I'm afraid that the real danger is yet to come. That is because the new government has already announced that it's his intention to present not only a new law regarding private copies but a second law against piracy:

http://tek.sapo.pt/noticias/internet/governo_promete_leis_para_pirataria_e

...

_copia_p_1164132.html. I really don't know what to expect from the latter, but I think the former will be just a rehash of the first proposal with the most controversial articles striped but still expanding the tax for private copies to storage media like external and internal HDs, cellphones with multimedia players, iPods, tablets, etc. This is the same kind of law that has generated a strong opposition in Spain against the government and SGAE ("canon digital").

From what I've been able to understand via my work on ANSOL regarding this matters, in terms of Culture the new government has the same agenda as the old one: both agree with the exact same text for the private copy law (even if in the end they'll show a slightly different wording, just because they wouldn't want to show that the other party sometimes does things as they think should be done), and both want an anti-piracy law that implements (sorry, we still don't have many details on this, it seems that our contacts with several institutions were suddenly severed...) french-like laws, including an HADOPI- like institution and 3-strikes.

Best regards, -- Marcos Marado

-- P2P Foundation: http://p2pfoundation.net - http://blog.p2pfoundation.net Connect: http://p2pfoundation.ning.com; Discuss: http://listcultures.org/mailman/listinfo/p2presearch_listcultures.org Updates: http://del.icio.us/mbauwens; http://friendfeed.com/mbauwens; http://twitter.com/mbauwens; http://www.facebook.com/mbauwens Think tank: http://www.asianforesightinstitute.org/index.php/eng/The-AFI