09 May 2011

Portugal to Make CC Licences Illegal?

I recently wrote about the suggestion that a "Great Firewall of Europe" should be created - a fine example of political cluelessness when it comes to technology. Here's another, this time from Portugal:

The Socialist Party will present this new proposal for approval in the next Government, no matter if they win the elections or not. In regards to Creative Commons, they support a vision where Creative Commons harm Culture, and in this law proposal they intend to turn them illegal. Here's how (quick translation, I'll soon post the whole proposal in Portuguese online, so others can make their own translation; this is only the part regarding written works, but there are similar items in "Article 3" for other works, except software):

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.

Here: in sum, every author (except software authors, so thankfully free software isn't affected) has the right of getting money out of private copy, and they can't renounce it, so every Creative Commons license, where saying "You are free to share — to copy, distribute and transmit the work" (or actually, in legalese, "licensor hereby grants you a worldwide, royalty-free, non-exclusive, perpetual license to reproduce the Work") is illegal.

Judging by the interesting discussion around the post quoted above, it's still not entirely clear whether this is really the intent of this new law. It's possible, for example, that this is just very badly drafted, and not actually an attack on the idea that creators should be able to share their work freely if they wish.

Unfortunately, a follow-up comment to the post is more pessimistic:
The SPA position (that the Ministry of Culture shares because they state they agree 100% in their positions) is that every creative commons author is harming artists, authors and the creative ecosystem.

The SPA is the "Sociedade Portuguesa de Autores", or Portuguese Authors Society:

Since its creation in May 22, 1925, the Portuguese Authors Society took on two important areas of activity: the mutualist and the cultural. The mutualist one has allowed thousands of authors to find support in old age and in sickness. As for the cultural one, it remains active, always with new proposals.

It seems here that those "new proposals" have nothing to do with helping authors distribute their creations as they wish, but is more about imposing a very one-sided and anachronistic view that only fools give away their creations. (Or as Bill Gates put it some years back: "Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?")

This shows how prescient Rick Falkvinge was when he wrote recently:

Some people, and corporations in particular, claim that the purpose of the copyright monopoly is for a certain profession to make money. That was never the case, and frankly, the idea is revolting to any democracy and functioning market. Bricklayers don’t have laws guaranteeing they make money, marketers don’t, plumbers don’t, and nobody else does, either.

However, the means of achieving the maximization of the available culture has been to give some creators a monopoly on the opportunity — not the right, but the opportunity — to make money off of a creative work. This has been the means to maximize culture for the public at large, and never the end in itself.

This also means that the only legitimate stakeholder in copyright legislation is the public. The monopoly is indeed a balance, but not the “balance” between corporate profits and human rights that the copyright industry likes to paint and pretend. In fact, the copyright industry is not part of the balance at all.

Unfortunately, this is not some abstract battle between different points of view. For example, if CC licences become illegal in Portugal, this would presumably mean that contributing to Wikipedia would also become illegal. Maybe Wikipedia itself would become illegal - there seems no limit to the absurdity of the knock-on consequences when starting from such a ridiculous premise.

Let's hope that enough Portuguese artists protest and the politicians come to their senses before Portugal becomes the laughing-stock of the civilised world.

Follow me @glynmoody on Twitter or identi.ca.


LED Tape said...

Would this allow people in portugal to use works commercially when the CC license states personal use only?

Glyn Moody said...

@LED Tape: unfortunately, the law is so ill-thought out it's simply not clear how on earth it would work in practice. Let's hope the attention brought to bear on it internationally will cause them (a) to drop it or at least (b) clarify it.

ups said...

It sounds to me that SPA is looking for an umbrella situation!
If any work is protected then they can charge the royalties and not deliver anything to the author since he renounced the payment.

Somehow, I wouldn't be surprised if this was the case.

Vanessa Blaylock said...

I'm as far from being a lawyer as you can get, but isn't this like making it illegal to give away free t-shirts because you harm the market for paid t-shirts?

On the bright side, hating Disney & Sonny Bono was getting old. Now we have someone new to bring frustration into our creative / networked lives.

Sad news. But thank you for informing us.

Glyn Moody said...

@ups: I think it's probably also so they can claim that *every* work must be licensed for a fee, and therefore they must collect money for every work - it's empire building.

Glyn Moody said...

@Vaneeesa: I think it's a little different because art is not really fungible: if I give away *my* sonnet it doesn't stop you from selling *your* sonnet.

I, however, may want millions to read my sonnet (I can dream) by giving it away for free: SPA says I can't do that, even if it's my sonnet. It also says that art is about money: no money, no art - not what most people would say, I think.

Moreover, what this does is effectively outlaw contributing to Wikipedia and open content in Portugal - surely not something the Portuguese government could want?

Rob said...

I've heard quite a few graphic designers in the states discouraging graphic designers and artists from giving away anything for free over the past year or two. It seems like the Gap or another company have had contests recently to redesign their logo for them, and the artists all freaked out and told all their artist friends not to submit contest entries, because they'd be seen as cheapening their craft. No mention of the fame you'd get for being the one that designed a logo for a well known major company.

Glyn Moody said...

@Rob: thanks - this is getting interesting. I'd never heard this complaint before: couldn't be that someone is orchestrating this, could it...?

Eugenia Loli said...

This is just terrible, absolutely terrible. I'm a CC artist (videography), and if this mindset spreads in other countries in EU, I might consider never coming back to Europe (I'm originally from Greece, currently in US). As much as I like picking on the US about its laws and such, it seems that other countries have their own share of bad laws.

Glyn Moody said...

@Eugenia: I may be giving hostages to fortune, but I don't think this could happen in many other places in Europe (France? - Sarkozy might try it...).

It seems to me that the politicians Portugal don't really understand the issues, and have been badly misled by lobbyists.

Misato said...

I'm Portuguese and I work as an artist.

first: SPA is an independent society and it's not obligatory for an artist to charge (or not charge) a fee for his/her work through SPA. the only thing you have the right to do here to protect your authorship and copyright is to register your work at a government office (for a small fee).
if the government decides to abide by SPA's rules that's different, but SPA only can work as a consultant and not as a decision or lawmaker in this kind of situation.

on the other hand I don't understand this law through the eyes of our government. Portugal is a society that in the latest years has encouraged young people to work for free (in any area), thus ruining the market for people that don't, and creating nasty work situations of professional work being usually badly done by non paid apprentices.

when I started working, intern-ships were paid, nowadays for young people to find paid intern-ships is a bigger search than for the Holy Grail. therefore they hire interns for a short period, just to fire them afterwards and get a new intern.

so, in my opinion, this law is an even bigger anachronism than previously stated in this article and comments.

this is pure silliness and I hope, as in many cases concerning culture over here, it all falls into oblivion.

Glyn Moody said...

@Misato: thanks for the useful context.

trvolk said...

The *Socialist* Party is against Creative Commons? That should tell you something, either about today's Socialists or Creative Commons.

Glyn Moody said...

@trvolk: I think it says more about the lobbyists...

Anonymous said...

The way this is formulated, it doesn't sound it is illegal to use CC. Its not like the author goes to jail.

Rather (and even worse) the consumer and redistributor of CC works will be liable to pay.Even if there's no Portuguese rights holder organisation with the right to collect it, some people receiving the estate of an author will - hence no one will risk touching CC

Glyn Moody said...

yes, that would be deadening.

Pedro Figueiredo said...

I'm Portuguese, left the country 5 years ago.

Rest assured that if an author isn't registered with the blood-sucking scum that is SPA, the blood-sucking scum in government will find a way to tax their work.

Also, most "artists" in PT are useless parasites that expect to be handed all sorts of subsidies and to be protected from competition by the government, either directly or through SPA, so rest assured there will be strong support for this, just wait and see.

Luckily I left before they closed the borders.

Richard M Stallman said...

The proposed law excludes software, but that doesn't mean free
software would not be harmed. Software needs manuals, and free
software needs free manuals. (See
http://www.gnu.org/philosophy/free-doc.html.) if the developers of a
program are not allowed to develop its manual, that would render the
software useless.

Note: Since I'm posting this comment in a blog named "open" which
lists "open source" as topic, I need to remind people that I never
advocated that. I advocate free software, free as in freedom. See

Glyn Moody said...

@Richard: thanks - that's a good point: there are all kinds of collateral damage if this goes through.

raj said...

How the hell they think to do this?
Do they want to pass the law that it is illegal to give something for free and always one must require money for anything?
That violates the basic rights and is just impossible to pass. So how do they imagine this?

Glyn Moody said...

@raj: I really don't know: they don't seem to have thought it through at all...

Unknown said...

Thanks for sharing with us.