CC0 Jurisdictional Survey Responses
Survey Details:

SurveyRespondents:

Published 21 August 2008 to official CC Affiliates (as ofthat date). The raw, unedited data below includes all
responses received as of 14 May 2010.

EuropeAmericasAsia/Pacific

Austria

Columbia

China Mainland

Belgium

GuatemalaJapan

Denmark

MexicoPhilippines

FranceAustralia

Germany
Italy
Netherlands
NorwayPolandRomania
Slovenia

Notice:Creative Commons has not verified the accuracy orcompleteness of the survey responses provided below. The
responses have been provided by the respective CC
Affiliates and are being published by Creative Commons for
informational purposes only. The responses do notconstitute legal advice, nor should the responses be relied
upon in lieu of legal advice.

CC0 Survey Topics: Index of Responses

Page ii

I. Public Domain

1

II. Waiver or Abandonment

7III. Covenant Not to Assert

15

IV. Licenses and License Terms

24

V. Moral Rights

27

VI. Equitable Defenses

37

VII. Click-Wrap Agreements

39

VIII. E-Signatures

41

IX. Other CC0 Comments

43

CC0 Jurisdictional Survey Responses(as of 14 May 2010)

I.

Public Domain

1. Does the concept of “public domain” exist in your jurisdiction in any legally
recognized form for works of authorship or databases?
2. If you answered "yes" or "other" to Question 1, please describe or explain
briefly.
Summary: Approximately half the jurisdictions responded that they do nothave a legally recognized “public domain.” However, most jurisdictions dohave at least a customary recognition of public domain for works for which the
copyright has expired and for items not covered by copyright law.
EuropeAustria

Yes The Austrian Copyright Law knows two possibilities for awork to become part of the public domain:
1. Works not Protected by Copyright§ 7.- (1) Laws, orders, official decrees, public notices
and decisions, or official works produced exclusively
or mainly for official use of the kind specified in
Article 2, items 1 or 3, shall not enjoy copyrightprotection.
(2) Cartographic works produced or adapted (Article
5(1)) by the Federal Standards and Survey Office andintended for distribution (Article 16) shall notconstitute unprotected works.
2. Works which have fallen into the public domain on expiryof their term of protection (70 years after the death of the(last co)author)

Belgium

No

Denmark

No

FranceNo
No

Germany

Italy

Page 1

As copyrights and moral rights are very closely connected
and moral rights are bound to stay with the author, there isno public domain unless after expiry of the copyright.

Yes Art. 25 of Italian Copyright Act implicitly states that after
the 70 years pma the work of art or creative database falls
into the public domain. In general, even when a work has
fallen into the public domain moral rights can impose somekind of control over it.
Additionally we have to consider whether other rights arecovering the work of art in the public domain according tocopyright law rules (e.g. some related rights – see for
instance art. 75 -, sui generis protection for databases),
but also rights of other nature (e.g. property rights,
cultural heritage related laws, etc.).
According to some commentators the definition of “publicdomain” should include the uses allowed within copyrightexceptions and limitation: therefore public domain wouldrefer also to copyrighted works, but for some uses only.
Netherlands

No

NorwayNo

PolandDepends on interpretation of law - There is no clear legal
basis in Polish law for dedicating a work to a public domain(i.e., waiving copyright protection). Moral rights are
explicitly non-waivable and non-disposable. Economic rights
expire 70 years p.m.a. and one could argue that no-one canprivately shorten this period. Additionally, there arelimitations in managing one's rights individually, such as
non-waivable royalties and compulsory intermediation ofcollecting societies.
Thus, even if one could attempt to construct a "publicdomain license" (i.e. a broad license with no obligations of
the licensee), such a license could not remove the above
institutes.

Romania

There is no "public domain" in the law, but it is recognizedin the doctrine, as all the works that can't be protected bycopyright or works where the copyright has expired.

Slovenia

Yes Art. 9 of the Copyright and Related rights act provides for
non-protected creations:
1. ideas, principles, discoveries;
2. official legislative, administrative and judicial texts;
3. folk literary and artistic creations.
These creations are generally not protected by copyrightand are therefore considered to be in public domain. The
only exception are translations of texts mentioned underitem 2 (official legislative, administrative and judicial
texts), which are protected by copyright, unless they are
published as official texts.

Page 2

Americas

Colombia

Yes Public Domain in Colombia follows the general idea. Works
are in the Public Domain when the protection period ends,
folk and popular works where the author can not be
identifiable, authors can resign their works to the publicdomain and works from foreign authors that do not havetheir rights protected under Colombian law.

GuatemalaYes It is mentioned in the Constitution and also in the Law
Decree to protect authors’ rights.

MexicoYes Public domain in Mexico is subject to two specificconditions. The first is temporality. This means that a work
cannot be dedicated /released to the public domain just by
saying so (even if it's the author will to do so), because thiscondition is achieved after the protection term has expired(Author's life plus 100 years in Mexico). Only then can awork pass into the public domain.
The second condition for public domain works is that theiruse needs to comply with moral rights provisions(Attribution, integrity, etc.) so anyone using a work that isunder public domain needs to respect these moral rights.

Asia/PacificAccording to the Copyright Law of China, the concept of"public domain" does exist in this jurisdiction, though not ina legally recognized form as in some other jurisdictions.
The public domain concept in China mainly refers to works
that are made free and available due to expiration of
copyright or works that are not copyrightable. A Rights
holder may also choose to dedicate his/her economic rights
in the copyright to the public domain.

China
MainlandJapan

Yes I believe it's the same as in the U.S.; any works whose
copyright has expired is in the public domain, and any work
to which the copyright owner has waived all the rights is in
the public domain.
The public domain concept is customarily recognized,
although it is not explicitly defined in Section 171 of thePhilippine Intellectual Property Law (Republic Act 8293). It
recognizes that the "no copyright shall subsist in any workof the Government of the Philippines" in Section 176 of thelaw; and recognizes the effect of the lapse of the terms ofprotection for copyrighted works.

Philippines

Australia
Page 3No3. Is there an established or recognized process for dedicating or placing awork in the public domain?
4. If you indicated a process does exist in Question 3, please provide a brief
description and identify any formalities.
Summary: Most countries do not have process for dedicating or placing a workin the public domain. Only Columbia and Japan mentioned the possibility ofthe existence of such a process, but in both countries, the procedure is notentirely clear.
EuropeAustriaNo

GermanyNo

As there is no concept of public domain – no.

Italy

No

No.

Netherlands

No

PolandNo

RomaniaNo

SloveniaNo

No other than by law

Yes

The law 23 of 1982 only says that for an author or rightholder to resign to his rights has to do it by writing andhas to make it public. He must consider that there are nocontractual provisions that he should follow before giving
away his rights. That is as far as the law says, so there is
no really established procedure but some requirements toaccomplish

Americas

Colombia

GuatemalaMexicoAsia/Pacific
China
MainlandJapan

Page 4

No
Yes

By waiting for the protection term to expire. In Mexico,
such term is the author's life plus 100 years.

No
See Q4 - In theory, by expressing your intention to waive
all the rights to the work, you can place the work in the
public domain. However, the copyright law does notprovide any specific process to do this: i.e., there is no
registration system or the like. Therefore, it is generally
thought that you can waive the rights based on the civilcode, and the only requirement is the valid will of waiver.
Of course, the problem is, there is no effective means the
public could know about this waiver.
Philippines

None The law only provides the legal process for theregistration of works (Sections 191 and 192, RA 8293), andthe assignment and exclusive licensing of works (Sections
180 and 182, RA 8293).

Australia

No

5. Can a person who dedicated a work to the public domain revoke or
terminate that dedication?
6. If you answered "yes" to Question 5, describe the circumstances under which
a dedication may be revoked or terminated.
Summary: Most of the countries responded that a public domain dedication
would not be revocable. Countries that said such dedication would be
revocable assume that such dedication would be governed by their standard
contract and licensing laws.
EuropeAustria

If a person did this in a licensecontract, this would be revocablewithout any problem whatsoever.

Germany

For reasons stated above, no.

Italy

A person cannot revokeNo.
that dedication because
it does not exist; but it ispossible to waive
economic rights assignedby copyright, like every
other patrimonial right.
See below.

Netherlands

Yes

Such a dedication would probably
qualified as a unilateral juridical act
which may always be revoked or
terminated. Such a dedication would
probably only be enforceable in court
insofar as a third party has in goodfaith relied upon it.

PolandYes

Assuming that the "public domain

Page 5license" in the answer to Q2 is a validway (and no other reasonable way
seems to exist under Polish law), it
would be a license concluded forunspecified period of time. Such alicense can be unilaterally terminatedupon a notice and it is not clear
whether one could waive the right toterminate.
Romania

No

Americas
Colombia

There is no express norm, I believe
the correct answer is no, but I am not
100% sure

GuatemalaNo

MexicoNo

Asia/Pacific
China
Mainland

No

Japan

Yes

Australia

Page 6

Because it is one of manifestation of
intent that is subject to general rulesof cancellation under the civil law, it
can be (theoretically):1) invalid if there is a mistake in any
element of the juristic act inquestion; provided, however, that theperson who made the manifestationof intention may not assert suchnullity by himself/herself if he/she
was grossly negligent. (Article 95 of
the Civil Code)2) cancelled if such declaration of
intent is made by fraud or under
threats (Article 96 of the Civil Code)
n/a

II.

Waiver or Abandonment

7. Is an attempt to waive or abandon some or all copyright-related rights
recognized and legally enforceable in your jurisdiction?
8. If you answered "yes" to Question 7, describe the process and formalities, ifany, for waiving or abandoning the rights.
Summary: Roughly half of the countries recognize an attempt to waive or
abandon some or all copyright-related rights. However, most countries
indicated that enforcement of this waiver is uncertain and that moral rights
cannot be waived.
EuropeYes
Austria

Theoretically it would be possible
to waive some rights (never all
copyright-related rights), however
this would not be enforceable.

Belgium

Uncertain - There is no case law
acknowledging such waiver orrelinquishment and there are many
legal questions that make such
waiver questionable.

Denmark

No

FranceNo
In the German copyright system,
there is no possibility to waive ortransfer the copyright itself. Thereis, however, the option to giveaway so-called “Nutzungsrechte”(exploitation rights). This will
always happen through a contract
between the parties, not throughany kind of declaration.

Germany

If the author wants to transfer
exploitation rights, each
exploitation right has to be listed
separately and explicitly or it will
not be transferred.
Italy
Page 7

Arguably yes.
Scholars discuss whether

No.

Italian copyright law allows
to waive or abandon
economic rights (ingeneral, it is debatedwhether there are otherforms of extinction than
the term of protection). It
seems reasonable tosubmit that it is possible towaive economic rights
assigned by copyright, likeevery other patrimonial
right.
Netherlands Yes
NorwaySame answer as for question # 6.

No

PolandSee answers above, enforceability ishighly questionable

Romania

To waive all copyrights, it is notpossible, In theory you could license
your works and keep only the moral
rights (which are not transmissible).
Yes

Slovenia

Page 8In general you are allowed towaive/abandon your rights unlessthe law provides otherwise. The
Slovenian Copyright and Related
Rights Act provides that it is notpossible to waive/abandon ortransfer moral rights. As it does not
specify the same for economic
rights, they are considered to be
waivable.
The law does not specify any
particular procedures for waiving oabandoning economic rights. It does
specify, however, that the transfer
of economic rights has to be in
written form (there are certain
exceptions). The
waiver/abandonment can be done
either as a statement of therightowner or as a contract
between the rightowner and theother party (e.g. user).
Americas
Colombia

No
Yes

GuatemalaMexicoA person can do it in a written form
but also must waive the right toexecute on court any claim relatedwith moral rights. I was analyzingthat while the substantive right is
non waivable, you can say that you
will not enforce it.

No

Asia/Pacific
China
Yes
Mainland
Yes

Japan

Theoretically, yes, you can waive
copyright-related rights byeffectively make such manifestationof intent, and no formalities
required (i.e., no paper nor
signature). It is just a matter of
proof when you try to enforce thatsuch waiver was made effectively
at certain point in time. And, so
far, there is no established means
to make such waiver in an assured
manner.

Philippines

Possible. Copyright is within thescope of property and related
rights, considering Intellectual
creation [Article 721 to 724, Civil
Code of the Philippines, RA 386] is
one of the modes of acquiringownership (of property). The
doctrine of waiver which provides
that "everyone has a right to waive
and agree to waive the advantage
of a law or rule made solely for the
benefit and protection of theindividual in his private capacity, if
it can be dispensed with andrelinquished without infringing on
any public right and without

Page 9detriment to the community atlarge" is recognized. (See e.g.
Bayas vs. Sandiganbayan, GR
143689-91, 12 November 2002). Fora waiver to be valid (and in turn,enforceable), the essential
elements of a valid waiver must
exist: "(a) existence of a right; (b)the knowledge of the existence
thereof; and, (c) an intention torelinquish such right." The standardof a valid waiver requires that it"not only must be voluntary, butmust be knowing, intelligent, anddone with sufficient awareness of
the relevant circumstances andlikely consequences." (Heirs ofReyes vs. Calumpang, GR 138473,
30 October 2006; citations omitted)
Most legal annotations in Philippine
Civil Law indicate the necessity of
waivers to be written. Note,however, due to the inadequacy ofthe law, there is no known
mechanism to bring such general
waivers as public records to renderthem applicable generally to the
public.

Australia

Page 10

Possibly, but unclear - You caneffectively 'waive' (eg by placing avery broad license such as CC BYon) your economic rights - but notyour moral rights (see below).
Verbal contracts are legally
enforceable under Australian law.
However, the court will read themdown to the narrowest possible
interpretation. So to be fully
enforceable, a broad contractual
waiver would have to be in writing,
and would preferably be signed.
Australian law does, however, havea broad definition of 'signature',
including electronic signatures andassurances, as long as they are
sufficiently reliable in thecircumstances. Again, for a broad
waiver to be upheld, it is likely thata fairly reliable signature would be
required.
9. Can a waiver or abandonment be revoked or terminated?
10. If you answered "yes" to Question 9, describe the circumstances underwhich a waiver or abandonment may be revoked or terminated, and any
formalities associated with doing so.
Summary: Nearly every country said that waiver or termination can be
revoked, theoretically, under the country’s contract law. However, most ofthese countries mentioned that revocation might not be held up in court.
EuropeAustria
Belgium

Yes

Under ANY circumstances. A waiver would
not be legally binding.
If the waiver is made by unilateral act,such act is deemed to be irrevocable.
There is a problematic issue with types of
exploitation yet unknown: given certain
requirements the author has the right torevoke these rights after these new usages
have become known.

Germany

Also, exploitation rights can be revoked ifthey are not put to use within a certain
period of time (generally after a period of
two years which can contractually bealtered to five years).
In addition, exploitation rights can be
revoked for reasons of Change ofConvictions. If the work does not reflect
the convictions of the author anymore andit is not tolerable for him or her to see thework exploited, he/she can revoke thisright, although a compensation must be
paid.

Page 11

ItalyNetherlands

Arguably yes.
Should we admitthat rights can bewaived or
abandoned, inprinciple it would
be possible torevoke or terminate
these obligations.

At least one specific case is implicitly
described in the law. It concerns situations
in which new types of work exploitations(which were unknown to the authors) areconcerned. According to art. 12.2 of the
Italian copyright Act, these new rights
should be assigned to the authors
notwithstanding any previous transaction
or waiver.

Yes

No formalities are required.

Yes

Termination of the "public domain license"referred to in the answer to Q2 can bedone upon a notice. Notice does not haveto be in writing, but has to be served tothe other party (if it is madeelectronically, placing it in the electronicsystem suffices).

PolandAuthor can also declare any contract (orlicense) avoided because of its "materialinterests" (not defined in law).
Yes

Being a contract ( a copyright license), in
theory it could be revoked... but inpractice it might not work.

Yes

The law does not specify any proceduresor formalities for revoking thewaiver/abandonment. If thewaiver/abandonment was given as astatement to an unknown circle of users
and the rightowner decides to revoke it,those users who have already used/started
using the work under thewaiver/abandonment conditions, cannot
be prosecuted for such uses. If thewaiver/abandonment was given in acontract, it depends on the contract
provisions, whether thewaiver/abandonment can be revoked.

Romania

Slovenia

According to the Slovenian legislation, if
Page 12an author makes a non-exclusive
assignment prior to a subsequent exclusive
assignment of rights, the non-exclusive
assignment is valid and effective against
the assignee of the exclusive rights, unlessotherwise provided by the agreement
between the author and the assignee ofthe non-exclusive rights. A non-exclusive
assignment gives an assignee the right toexploit the work according to the terms of
the assignment and in competition withboth the author and other assignees. In
accordance with this definition, we
believe that a waiver or an abandonment
could be considered as a non-exclusive
assignment of rights. Therefore, it would
be valid and effective against the assigneeof the exclusive rights, if it was madebefore the exclusive assignment. An
exclusive assignment gives an assignee theright to exploit the work according to theterms of the assignment and to the
exclusion of the author and any otherperson. The only exception would be theabovementioned situation (prior nonexclusive assignment or priorwaiver/abandonment).
Americas
GuatemalaNo

MexicoDoesn’t apply

Asia/Pacific
China
MainlandJapan

Philippines

Page 13It depends on the circumstances of how
the waiver or abandonment was made.
Yes

See Q6
If waiver is made by one party for the
benefit of another, based on contractual
obligations, the rescission thereof shouldarise from grounds common with otherrescissible contracts. Most waivers,
however, in various jurisprudence areattached based on grounds necessary torender the instrument voidable, i.e.

through mistake, force, intimidation, etc.
Yes

As the waiver would merely be a broad
license, it would be able to be terminatedor revoked on the same grounds as otherlicenses (eg duress, unconscionability,
breach etc).

Australia
However, in the absence of such grounds
or a clause in the license itself, it seems
unlikely that the courts would allow a
unilateral revocation of a valid agreement(ie 'because I've changed my mind').

Page 14

III. Covenant Not to Assert
11. Is a covenant not to assert rights under copyright recognized and legally
enforceable in your jurisdiction?
12. If you answered "yes" to Question 11, describe the process and formalities,
if any, for creating an enforceable covenant not to assert rights undercopyright.
Summary: Approximately two-thirds of the countries recognize a covenant not
to assert rights under copyright. One-third does not, and the other one-third is
not sure. For those that do, the most common formality is to have thecovenant in writing. Most of the countries that recognize the covenant will notrecognize it for moral rights, with the exception of Japan that will recognize it
only for moral and other non-waivable rights.
EuropeAustriaNo

Belgium

Uncertain, specially for moral rights.

Denmark

No

FranceNo

Germany

Yes

Yes, withing the framework of acontract it should be enforceable.

Italy

It is not for moral
rights (see below),even if some scholars
assert that a ghost
writing covenant isenforceable.
Such a covenant is in
general valid andenforceable for
economic rights(possibly excluding new
types of exploitation:
see n.9 above).

The only formality required for
copyright covenants in general is to use
written form for evidence (see art. 110
of the Italian copyright Act).

Netherlands

Yes

No formalities are required.

NorwayNo

Page 15

PolandSee answers above, one could attempt
to structure it as a "public domain
license" – see above answers

Romania

I don't think so...

Slovenia

Yes

The covenant would have to be given ina written form and signed by theauthor.

Colombia

Yes

It will be driven by contracts law, andcan only deal with economical rights(not moral rights at all)

GuatemalaYes

In written form.

Americas

MexicoNot expressly - It can be done but you
have to be very careful on the way you
draft any recital that may pursuit this,because if it looks as if the author istrying to waive his/her right then it will
be a null recital or clause.

Asia/Pacific
China
MainlandJapan

Page 16

Yes

There is no specific process or formality
available here for this purpose. But one
can do this based on the generalprovisions under the Contract Law ofChina, so a covenant could include anagreement not to assert rights undercopyright law
Not clear - It is generally said that acovenant not to assert rights can beeffective and legally enforceable, notspecifically under copyright law, but
under the general principle of civil
code. However, it is generally said thatsuch covenant should be made in a
specific manner: i.e., specific enoughin terms of duration, scope etc. Ifrights an be waived, it is morestraightforward to do so. Covenant not
to assert rights is only considered forrights not waiveable: i.e., moral rights.
In Japan, when you transfer copyright,moral rights can NOT be transferred,
therefore, it is customary to getcovenant not to assert rights for thework to make sure the freedom of use
by transferee. However, there is a
discussion (but not a case yet) thatsuch covenant may be invalid when it is
too broad and not specific enough,because too broad a covenant is almost
like a waiver, which will work as aloophole, and the court will not admit
such loophole...
Philippines

Australia

Page 17

There are no express legal provision onmatters involving "covenants not toassert" nor any jurisprudence in whichsuch covenants have been the point ofcontention. There is no test
jurisprudence yet for its proper
appreciation.
Yes

A covenant not to enforce certain rights(eg economic rights) would likely be
upheld under Australian contractualand estoppel law, as long as it was
sufficiently specific and wellevidenced.
Evidence I have been able to findinitially suggests covenants not to sue
are generally interpreted narrowly ie todistinguish one-off agreements between
two individuals from more generalreleases. That is, a promise not enforce
the debt of an individual debtor would
be read down to be merely a covenant,while a broader promise not to a seek
remedy against a group of debtors
would be a release. Courts will almost
always read down a covenant to its
narrowest possible interpretation.
Under contractual law, written andsigned documentation would be
preferable (see answer to Q.8).
Australian law regarding estoppel issimilar to most common law
jurisdictions. Estoppel can be enforced

based on verbal statements alone.
However, for a broad promise (ie that
goes beyond a specific situation)
substantial evidence of therepresentation, such as a written
document, would be advantageous.
Even if a broad covenant (ie beyond a
one-on-one relationship) were upheldin relation to economic rights, any
broad covenant not to assert moral
rights would almost certainly be held
invalid, as the Australian Copyright Act
limits any moral rights consent to thespecific case at hand (ie only allows
you to give a one-off consent to aparticular use, other than where an
employee is providing a broad consent
to an employer). See Q.24.
13. Can a covenant not to assert rights under copyright be revoked or
terminated?
14. If you answered "yes" to Question 13, describe the circumstances underwhich a covenant not to assert rights under copyright may be revoked or
terminated, including any formalities associated with doing so.
Summary: In most of the countries, a covenant not to assert rights undercopyright can be revoked or terminated, under general contract law rules.
Several countries mentioned that termination might require payment ofcompensation to the non-terminating party.
EuropeGermany

Italy

Page 18

One possibility is to revoke the contract forreasons arising from general contract law(e.g. for reasons of deception). Also, thepossibility of a breach of contract remains.
The only
possibility is to
revoke thecontract forreasons arisingfrom generalcontract law.

There are no special norms. One should
apply the rules of general contract law.

Netherlands

Yes

Such a covenant would probably qualified asa unilateral juridical act which may always
be revoked or terminated. Such a covenant
would probably only be enforceable in court
insofar as a third party has in good faithrelied upon it.

PolandYes

See above answers

Slovenia

Yes

A covenant can always be revoked but theauthor has to pay damages to thecontracting party.
In addition, the Copyright and Related
rights Act provides for a moral right of theauthor to withdrawal. Namely, the author
has the exclusive right to revoke his
assigned economic right from its holder,provided he has serious moral reasons for
this, and on condition that he firstreimburses the damage caused to the rightholder by such revocation. With theexercise of the right to withdrawal, theeconomic right of the holder isextinguished. The author must adequately
reimburse the holder. The holder must
notify the author of the extent of damages
suffered by him within three months of thereceipt of the notice of revocation. If theholder fails to do so, the right to withdrawal
takes effect on the expiration of this term.

Americas
Colombia

Not sure about this, it will depend on
contractual formalities and law

GuatemalaYes

It will depend on the covenant and thecauses to revoke or terminate it, in any
case, there might be also an obligation to
pay damages.

MexicoYes

As put on answer 12, it can be made butvery carefully. That aside, all rights
transmissions in Mexico are subject totemporality. There is a thin line between a

Page 19

transmission and a use license. This makes
licenses not subject to that temporality
condition.
Asia/Pacific
China
MainlandYes

Pursuant to the Contract Law of China, twoparties may terminate a contract if theyreach a mutual agreement through fairnegotiation.

Japan

Yes

See Q6Australia

It would depend on the terms of thecontract - See answer to Q.10

15. Does a covenant not to assert rights under copyright require contractual
privity in order to be effective or enforceable?
Summary: Roughly two-thirds of the countries require contractual privity inorder for a covenant not to assert rights under copyright to be enforceable.
The other third does not, and in Poland the answer is not clear.
EuropeGermany

Yes

Italy

Yes it does, because under Italian law a contract is a covenant
related to economic privity (see art. 1321 of Italian Civile
Code).

Netherlands

No

PolandThere is no straight answer to this question

Slovenia

No, if it does not create obligations for third parties.

Americas
Colombia

Yes

GuatemalaNo

MexicoYes

Asia/Pacific
China
Mainland

Yes

Japan

Yes

Page 20

Australia

Yes

16. Is a covenant not to assert rights under copyright licensable, assignable orotherwise transferable?
17. If you answered "yes" to Question 16, what are the formalities associatedwith doing so?
Summary: Roughly one-third of the countries do not allow a covenant not toassert rights under copyright to be licensed, assigned or transferred. Of theremaining two-thirds, all but one require this permission to be set out explicitly
in the covenants terms, per general contract law. The remaining country,
Australia, needs to investigate further.
EuropeAustriaNo

Germany

As part of the contracting party’s
obligation it is assignable within the rulesof general contract law.

Italy

This covenant is
assignable ortransferable within
the rules of generalcontract law.

Netherlands

No

PolandYes

Slovenia

No

There are no special formalities. One
should apply the rules of general contractlaw.

It would have to explicitly state that theother party can transfer it.

Americas
Colombia

Since it relies on contractual law it might
depend on the contract provisions

GuatemalaYes

MexicoNo

In a written form.

Asia/Pacific
China
Mainland

Page 21

Yes

Pursuant to the Contract Law of China,
where the obligee assigns its rights, it shallnotify the obligor. Such assignment will
have no effect on the obligor without

notice thereof.
Where the obligor delegates its obligations
under a contract in whole or in part to athird party, such delegation shall be
subject to the consent of the obligee.
Where the laws or regulations stipulatethat the assignment of rights or transfer ofobligations shall undergo approval orregistration procedures, such provisions
shall be followed.
Upon the consent of the other party, one
party may transfer its rights together with
its obligations under contract to a third
party.
Japan

Yes, only if it is clearly agreed as such. It is
not thoroughly discussed yet. However,covenant is usually deemed as amanifestation of intent not to exercise
rights (i.e., some kind of license), and if
so, the scope against whom the rightholder would not assert right shall be madeclear. Therefore, my personal opinion isthat such re-license, assignment or transfer
shall be clearly agreed by the right holder.
Otherwise, a separate consent is required
for such re-license or transfer.

Australia

Needs further investigation - Our initialthoughts (that would need further
investigation) are that if the covenant is in
the form of a valid contractual document,
it would be able to be transferred, as longas this was permitted by the contract
itself.
However, an agreement enforced byestoppel would not be transferable.

18. Does a covenant not to assert rights under copyright "run" with the work
waived (i.e., is it tied to the work so that after assignment or transfer it
remains binding on assignees or transferees)?
Summary: One country, China Mainland, gave a straight “yes” that thecovenant not to assert rights would run with the work. Four countries gavestraight “no”s, mostly because the covenant would be part of a contractual
Page 22agreement running with the parties. For a few countries, whether thecovenant runs with the work or with the parties will depend on the terms ofthe covenant.
EuropeGermany

No it would be part of the contractual agreement and would
therefore be tied to the parties.

Italy

It is a part of contractual agreement and for this reason it
would be tied to the parties (see art. 1372 of Italian Civile
Code).

Netherlands

No

PolandHighly depends on the applicability of first sale and the wordingof the covenant

Americas
Colombia

Depends on the contract that is signed

GuatemalaYes, if you specified it on the assignment or transfer contract.

MexicoNo

Asia/Pacific
China
Mainland

Yes

Japan

You can try to say that such covenant will follow the work, but
not clear yet whether such arrangement is enforceable.

Australia

Possibly - see Q.17

Page 23

IV.

Licenses and License Terms

19. Can a copyright license (or contract with a copyright license) written as
irrevocable be revoked or terminated by the owner/author?
20. If you answered "yes" to Question 19, describe the circumstances underwhich a license or contract written as irrevocable may be revoked or
terminated.
Summary: The majority of the countries allow a copyright licenses written as
irrevocable to be revoked or terminated by the owner/author. Several of thesecountries allow this as part of the author’s moral rights and require payment ofcompensation for revocation. A few other countries view a license as an offer,
so the license/offer is revocable until assent is manifested. Two countries,
Italy and Germany, also allow revocation of a license granting exploitationrights if not used within a certain period of time.
EuropeAustria

Yes

Belgium

Depends on the nature of the license - If the license
is an unilateral act, it will be irrevocable. If thelicense if part of a contract, such contract binds theparties and it can be revoked only if both parties
agree or by the author only if the other party has
not complied with her obligations, under strict
conditions.

Denmark

No

FranceYes

Germany

Page 24

There is always the right of extraordinary
cancellation which can not be excluded.
Extraordinary cancellation demands "importantreasons" which have to be proven by the claimant.
The rules are rather strict here (in favor of thelicensee) but no license under Austrian Copyright
Law can be "waterproof" irrevocable.

The right of withdrawal is a component of moral
rights. A contract with a publisher can be revokedby the author without reason, but withcompensation for the commercial prejudice. This
prerogative is very rarely enforced.
There is a problematic issue with types of
exploitation yet unknown: given certain
requirements the author has the right to revokethese rights after these new usages have become
known.

Also, exploitation rights can be revoked if they are
not put to use within a certain period of time
(generally after a period of two years which cancontractually be altered to five years).
In addition, exploitation rights can be revoked forreasons of Change of Convictions. If the work does
not reflect the convictions of the author anymore
and it is not tolerable for him or her to see the work
exploited, he/she can revoke this right, although acompensation must be paid.
Italy

Yes (atleast insome
specialcases).

First economic rights can be revoked if they are not
put to use within a certain period of time (a period
not longer of two years which judge can shorten, seeart. 127 and 128 of Italian copyright Act).
Secondly economic rights can be revoked for reasonsof change of convictions (on the basis of a moral
right). If the work does not reflect the convictions of
the author anymore and it is not tolerable for him tosee the work published and spread he can revoke
the right of spreading the work over the market; but
a compensation must be paid to the person who
could use the work (see art. 142 of Italian copyrightlaw).

Netherlands

Yes

If the copyright license is considered a standard
form agreement, then the revocation will be valid
only if the other party has not manifested assent to
the offer. It would require contractual privity.
If the copyright license is seen as a unilateraljuridical act, then the revocation would be valid
unless a third party has in good faith relied upon it.

NorwayNo

PolandYes

In case of a breach or in case of "material interests"of the author
Otherwise, in case it is concluded for an unspecified
period of time. Generally, only contracts concluded
for specific period of time cannot be terminatedunilaterally. However, if a license is concluded for
longer than 5 years it changes into a license forunspecified period of time as a matter of law.

Romania

Yes

Depending on the exact terms of the licenses, but if
all the parties of a license agree to change thePage 25

provision of the contract of being irrevocable, thenit can be revoked or terminated.
Also, it need to be considered to what extent such acontract could be written as irrevocable in the firstplace.....
Slovenia

Yes

The answer is identical to the one under no. 14.

Americas
Colombia

No

GuatemalaNo

MexicoYes

By law it can be revoked in any time under theauthor's discretion

China
Mainland

Yes

Theoretically, we view a license as an offer.
Accordingly,
pursuant to the Contract Law of China, an offer canbe revoked. but the revocation notice must reachthe offeree before it has dispatched a notice of
acceptance.
An offer may not be revoked, if(1) the offeror indicates a fixed time for
acceptance or otherwise explicitly states thatthe offer is irrevocable; or(2) the offeree has reasons to rely on theoffer as being irrevocable and has madepreparation for performing the contact.

Japan

Yes

Even though the license is said to be irrevocable, if
such "manifestation of intent to agree to sucharrangement" is found to be made by mistake, by
fraud or under threat, it can be cancelled orinvalidated.

Australia

Yes

See Q.10

Asia/PacificPage 26

V.

Moral Rights

21. Are moral rights granted by law or treaty to the original author of a work ofauthorship or database in your jurisdiction?
Check all that exist: Attribution, Integrity, Publication/Disclosure, Withdrawal
22. If you answered "yes" to Question 21, please state the duration of thoserights.
Summary: For original works of authorship, sixteen (16) countries have moral
rights for Attribution and Integrity, fifteen (15) for Publication/Disclosure andnine (9) for Withdrawal. Duration of these rights is generally either theduration of the copyright itself or is perpetual. In a few cases, the rights end
with the author’s death. Generally, there are less moral rights with respect todatabases and those rights may depend on whether the database is eligible forcopyright or sui generis protection.
EuropeAustria

Attribution, Integrity,
Publication/Disclosure

70 years after the death of theauthorBelgium

Attribution, Integrity,
Publication/DisclosureLife time of the author + 70
years

Denmark

Attribution, Integrity,
Publication/Disclosure

In general, moral rights expire
70 years after the death of theauthor. However, after thattime moral rights continue toexist but only to a very limited
extent. Thus, if the copyrighthas expired a work may not bealtered or made available tothe public if "cultural interests
are thereby violated". This
right is perpetual and the
purpose is to protect thecultural heritage. It is disputed
whether this perpetual right
has any practical significance inmodern society.

FranceAttribution, Integrity,
Publication/Disclosure,
Withdrawal

It shall be perpetual,
inalienable andimprescriptible.
It may be transmitted mortis
causa to the heirs of the

Page 27author.
Exercise may be conferred onanother person under theprovisions of a will.
Germany

Attribution, Integrity,
Publication/Disclosure,
Withdrawal

By law: all of these. Life of theauthor plus 70 years post
mortem (always same timespanas the duration of copyright).

Italy

Yes: Attribution, Integrity,
Withdrawal (as for works of art
and creative databases).
No (but debated):
Publication/Disclosure (as forworks of art and creative
databases). The moral or
economic right nature of theright of disclosure/publicationis very much debated. Most of
the commentators indicate that
this is an economic right andnot a moral right.
No: Attribution, Integrity,
Withdrawal,
Publication/Disclosure (as fornon creative databases, should
they be protected or not by thesui generis right)

Attribution, Integrity: from thecreation of a creative
expressed form – no time
limits.
Withdrawal: from the creationof a creative expressed form
until the death of the author.

Netherlands Attribution, Integrity,
Publication/Disclosure

PS: there are no moral rights
with respect to databases).
Moral rights in the Netherlands
last for the life of the author.
They may only be exercised(for 70 years after his death) if
he has designated someone todo so in a codicil to his will.

NorwayAttribution, Integrity,
Publication/Disclosure,
Withdrawal

Perpetual.

PolandAttribution, Integrity,
Publication/Disclosure

Supervision on the use of thework; generally, the list is not

Page 28

exhaustive - moral rights
protect a non-waivable link
between the author and thework. Duration is perpetual.
Romania

Attribution, Integrity,
Publication/Disclosure,
Withdrawal

Perpetual!

Slovenia

Attribution, Integrity,
Publication/Disclosure,
Withdrawal

All these rights are granted
only to the original author of awork of authorship.
There are two kinds of
database right in the Copyrightand Related rights act:a) a database as a work ofauthorship – if a databasefulfills all the criteria to beconsidered a work ofauthorship (individual
intellectual creations in thedomain of literature, science,
and art, which are expressed inany mode) its author has all thementioned moral rights, except
for the right to withdrawal.
The definition of a database insuch case is that it is acollection of independentworks, data or other materials
in any form, arranged in asystematic or methodical way
and individually accessible byelectronic or other means.
b) a database as sui generis – if
a database does not fulfill thecriteria to be considered awork of authorship, but fulfills
the criteria for the database sui
generis right (a collection of
independent works, data orother materials in any form,
arranged in a systematic or
methodical way andindividually accessible byelectronic or other means,

Page 29

whereby either the obtaining,
verification or presentation of
its contents demands a
qualitatively or quantitatively
substantial investment), it isprotected with related rights.
In such case, there are no
moral rights.
If a database is a work ofauthorship, it can be protectedby both – copyright and the sui
generis rights. However, if it is
not considered to be a work ofauthorship, but fulfills theelements for sui generis rights,
it is “only” protected by sui
generis rights.
Attribution, Integrity andPublication/Disclosure last for
70 years after the death of theauthor. Withdrawal lasts until
the death of the author. All
these rights are nontransferable and non-waivable.
Americas
Colombia

Attribution, Integrity,
Publication/Disclosure,
Withdrawal

Perpetual for all

GuatemalaAttribution, Integrity,
Publication/Disclosure,
Withdrawal

Life + 75

MexicoAttribution, Integrity,
Publication/Disclosure,
Withdrawal, refusal of
authorship and modification(tied to integrity)

Perpetual in all cases and may
be exercised by the author,
his/ her heirs or, in case of
public domain works, by theState.

Attribution, Integrity,
Publication/Disclosure

All moral rights, except
Publication/Disclosure which
exists for life time of theauthor plus additional 50 years,

Asia/Pacific
China
Mainland

Page 30

exist perpetually.
Japan

Attribution, Integrity,
Publication/Disclosure

Same as copyright duration(i.e., 50 years plus life time of
the author) basically. (there
are small exceptions after thedeath of the author, but I don't
think it is important in thiscontext)

Australia

Attribution, Integrity, Against
false attribution

The right of attribution forfilms exists until the author(usually the director) dies.
All other moral rights last for
the full term of copyright ie
generally life of the author plus
70 for dramatic, literary,artistic and musical works; or
70 years from first publication
for films or sound recordings.

23. May any of the moral rights granted in your jurisdiction ever be waived or
licensed by the holder?
24. If you answered "yes" to Question 23, please describe which rights may be
waived or licensed, and the circumstances under which that may occur and any
formalities associated with doing so, if any.
Summary: The majority of countries do not allow moral rights to be waived or
licensed. However, some do allow covenants not to assert. A few countries
allow waiver but not of all rights, and a few countries allow licensing moral
rights.
EuropeAustria

Yes Moral rights are not licensable or transferable. However,some can be waived in a license contract.
On the other hand, this waiver is revocable by the author
at any time.
The right of attribution is completely unwaivable.

Belgium

No

DenmarkYes In the Act it is said that rights of integrity and attribution
cannot be waived except in respect of a use of the work
which is limited in nature and extent. No formalities apply.

Page 31FranceNo

Germany

There is only the possibility of a covenant not to assert any
claims. Under no circumstances moral rights can be waived
or transferred (only through succession after death). There
are no special requirements for the covenant as it is an
ordinary contractual obligation.

Italy

No

N/A

Netherlands

Yes The right of attribution may be waived, as well as the rightto oppose alterations to the work. However, the right tooppose any distortion, mutilation or other impairment of
the work that could be prejudicial to the name or
reputation of the author or to his dignity as such isunwaivable.

NorwayNo

PolandNo

RomaniaNo

Slovenia

No

Americas
Colombia

No

GuatemalaMexicoNo, but you can circumvent the provision saying that you
will not enforce it, or that in any case it will be breached
you accept as compensation a fixed obligation or amount ofmoney.
Yes Non may be waived but integrity may be licensed or, more
precisely, authorized.

Asia/Pacific
China
Mainland

No

Japan

Yes Cannot be waived (Article 59 of the copyright law clearlystate that moral rights are not transferable, and notwaivable).
However, all the rights can be "licensed" or subject tocovenant not to assert rights. as for formalities etc, see
Q12Page 32

Australia

Yes A consent can be granted allowing certain uses, however
the consent:- must be in relation to a specific work
- must be in relation to a specific act of omission- must be in writing- cannot be the result of duress or false or misleadingstatements
The exception to this is where an employment relationshipexists - an employee may give his employer a generalconsent to cover all works produced during the course of
his employment.
It is also a defence to infringement of moral rights if theact is question was 'reasonable in all the circumstances'

25. Is an attempt to waive or abandon moral rights voidable in your jurisdiction
as being against public policy or otherwise likely to cause the relevant legal
instrument (e.g., CC0) to be invalidated in its entirety without reference toalternative licenses or other fall back alternatives?
26. If you answered "yes" to Question 25, then does a severability clause
remedy this?
Summary: The countries are split roughly half-and-half as to whether an
attempt to waive or abandon moral rights would cause the entire instrument tobe voided. However, most of the countries said that a severability clause
would remedy this.
EuropeAustria

Yes

Belgium

Uncertain. will depend on theimportance in such a waiver in theoverall license

Denmark

No

FranceYes

Risk is hard to evaluate
before additional research
but I'm optimistic

Germany

The attempt is not likely to cause
the relevant legal instrument to beinvalidated entirely. If the legal
instrument is considered as

A severability clause would
be counterproductive as it
violates the rule oftransparency in the law ofPage 33

No

“general terms and conditions”(which CC0 most likely would) only
the specific clause would beinvalidated. General contract law
would take its place.

general terms andconditions.

Italy

The attempt is not likely to cause
Likely not.
the relevant legal instrument to beinvalidated entirely. If the legal
instrument is considered as“general terms and conditions” only
the specific clause would beinvalidated. General contract law
would take its place.

Netherlands

No

Yes

NorwayYes

No

PolandIt could be construed as a contract
not to exercise the moral rights,
depending on interpretation of law.

RomaniaNo

Slovenia

Yes

Yes

Colombia

Yes

Yes

GuatemalaMight be the waiver or abandon ofprocedural rights to enforce moral
rights.

Yes

MexicoYes

Yes

AmericasAsia/Pacific
China
MainlandAs being against value or moral
principle.

Japan

No

Australia

No

Page 34

Yes27. If moral rights can be waived/abandoned, may the legal instrument providethat the waiver is irrevocable?
28. If you answered "no" to Question 27, then when may a waiver be revoked or
terminated by the waiving party?
Summary: This question did not apply to the large number of countries that do
not allow waiving or abandoning moral rights. Of the other countries, only one
said the waving or abandonment could not be irrevocable.
EuropeAustriaNo

Denmark

Yes

Germany

As the moral rights themselves are
not to be waived or abandoned,
the author can always exercise therights. In doing so, s/he is inbreach of contract (and must pay
an according fine or sth. alike),which does not impair her ability
to do so, however.

Italy

Moral rights cannot be
waived/abandoned

Netherlands Yes
Americas
GuatemalaYes, but again, the solution might
be to waive the faculty to enforce
it on court, or accept a fixedcompensation.

MexicoDoesn't apply

Asia/PacificPage 35

See above: anytime
There is a weighing ofinterests, however. If a
revoking of the waiverwould be disproportional, it
would be naught. As one canimagine, this is almost neverthe case - out of protection
for the author.

See answers n. 9 and 10
above.

Japann/a (not waivable)

Australia

Subject to duress etc, yes

Page 36

see Q6

VI.

Equitable Defenses

29. Does your jurisdiction recognize any equitable defenses to claims of
copyright infringement, such as estoppel, laches or unclean hands, that arise
based on an act or a statement of intent by the author or copyright holder?
30. If you answered "yes" to Question 29, please describe those defenses, when
they arise, etc.
Summary: Although eight (8) countries answered that equitable defenses arerecognized and four (4) countries answered that equitable defenses are notrecognized, the gist of most of the answers is “unknown.” For many of thecountries, both those that said “yes” and those that said “no”, it is unclear
whether these defenses apply to copyright. A few countries mentioned thatthese are common law terms with which they are not familiar.
EuropeAustria
Denmark

I do not understand that question.
No

Germany

In a contractual relationship there is for example the ruleof “venire contra factum proprium”, which is very similar
to “estoppel”. According to this rule, the party to acontract may not act on basis of facts that he or she hascreated e.g. by certain statements and the other party put
his or her trust in this.

Italy

Yes

Netherlands

Yes These are based on the general civil law principle offairness and equity and 'rechtsverwerking' (difficult totranslate but roughly equivalent to estoppel).

NorwayNo

Page 37

General civil law principles apply also to copyright law.
For example, in a contractual relationship there is the ruleof the prohibition of “venire contra factum proprium”,
which is very similar to “estoppel” (and, in general, it is a
specific kind of behavior which is contrary to good faith andfairness). According to this rule, the party to a contract
may not act on basis of facts that he or she has created
e.g. by certain statements and the other party put his or
her trust in this. However, the applicability of this rule tocopyright is not beyond dispute, as a requirement of
written form for contractual arrangements applies.

PolandYes There is a general clause in the Civil Code (art. 5) that noone can exercise their rights contrary to the (roughly
translated) "nature of the right" and "rules of society". Thisis something similar to laches or unclear hands institutes.

Romania

These terms are specific to the common law system, I don't
know them that well in order to make an assumption is asimilar institution exists in the Romanian law, which isbased on the French system.

Slovenia

Yes If the publisher does not publish the work within the
stipulated time limit, the author may rescind the contract
and claim damages, in addition to the right to keep the
remuneration received, or to demand payment of
stipulated remuneration, as the case may be.

Americas
Colombia

Not sure

Guatemala

It has never been analyzed by a court, but such concepts
are in our Judicial Organ Law and must be applied by any
judge.

MexicoNo

Asia/Pacific
China
Mainland

No

Japan

Yes We have a general principle of estoppel. However, it is arather narrow principle, and we are not sure whether the
court will actually apply the principle to a right holder whochanged their mind in applying CC0.... there is apossibility, but remain unclear.

Philippines

Australia

Page 38

Although estoppel, laches, or unclean hands are principles
which apply generally to affect existing rights (including
property rights), there is no known jurisprudence yet thatwould apply the same to copyright-related controversies.
Yes see Q.12

VII. Click-Wrap Agreements
31. Are click-wrap or browse-wrap waivers, licenses and contracts enforceable
in your jurisdiction?
Summary: In most of the countries click-wrap and browse-wrap are, or
probably are, enforceable. The question is still open in a few countries.
Austria is the only clear “no.”EuropeAustriaNo

Belgium

Yes

Denmark

Yes

FranceYes, with a double-click provision

Germany

There still is some debate about this question, but the general
opinion is that they are not enforceable.

Italy

In principle they are, provided that they are in compliance withgeneral civil law principles and consumer law (see art. 1341 of
Italian Civil Code and the Consumers’ Code). There may be atension with some formalities required by the Italian CopyrightAct (see for instance art 110 l.a. – requirement of written form).

Netherlands

Yes

NorwayYes

PolandDepends (e.g., not clear in consumer relations), no case law

Romania

Yes

Slovenia

Yes

Americas
Colombia

Yes

GuatemalaYes

MexicoNo waivers, yes licenses and contracts

Asia/Pacific
China
Mainland

Yes

Japan

Yes

Page 39

Philippines

Possible. Section 16(1) of the Philippine e-Commerce Act(Republic Act 8792), provides that "Except as otherwise agreed
by the parties, an offer, the acceptance of an offer and suchother elements required under existing laws for the formation ofcontracts may be expressed in, demonstrated and proved bymeans of electronic data message or electronic documents andno contract shall be denied validity or enforceability on the soleground that it is in the form of an electronic data message orelectronic document, or that any or all of the elements required
under existing laws for the formation of the contracts isexpressed, demonstrated and proved by means of electronic
documents." The provision appears to have broad application,although there is no test jurisprudence that tackles click-wrap
and browse-wraps contracts.

Australia

The case law indicates that click wrap licenses - no case yet onbrowse wrap licenses are enforceable - browse wrap there issome question about

Page 40

VIII. E-Signatures
32. Does your jurisdiction recognize electronic or digital signatures?
Summary: Only one country, Guatemala, does not recognize electronic ordigital signatures.
EuropeAustria

Yes

Belgium

Yes

Denmark

Yes

FranceYes

Germany

Yes it does. The German law has been enacted according to the
EU Electronic Signatures Directive.
Basic electronic signature: No special requirements, e.g. Nameof Publisher.
Advanced electronic signature: Usage of a secret key (one-timeusage) and possibility to trace the author (not necessarily
through a certificate).
Qualified electronic signature: Usage of SSEE and a valid
certificate. This is the only type of signature that can be used tofulfill the requirement of “written form”.
Note: In German, the phrasing “digital signature” is often usedin regard to a cryptographic method.

Italy

The Italian Codice dell’Amministrazione Digitale deals withelectronic and digital signatures, issued with a legislative decree
in 2005 (D. Lgv. 7 March 2005, n. 82).

Netherlands

Yes

NorwayYes

PolandYes

Romania

Yes

Slovenia

Yes

Page 41

Americas
Colombia

Yes

GuatemalaYes

MexicoYes

Asia/Pacific
China
Mainland

Yes

Japan

Yes

Australia

Yes

Page 42IX.

Other CC0 Comments

33. Do you have any other comments on CC0?
Summary: Additional comments range from excitement about the possibilities
to which CC0 might lead and concern over CC0’s inability to function on aninternational level. Many countries suggest further research.
EuropeAustria

As you can see, CC0 would not work in any way in the Austrian
Copyright Law (same goes for Germany, if I am not mistaken).
I can see that there is a great deal of interest for CC0 in the US,
where (as far as I have understood this) CC0 would work.
However, CC0 would not work on an international level. You
could of course publish it for the US only (or any other legal
system where it would fly). Yet, when it comes to internationalrules of applicable copyright law, you can not "choose" the law of
the state where it would work, you would be simply overruled by
the Berne Convention and its following instruments.
CC managed to build up a reputation as "the people who have a
different approach but who know their stuff". This reputation
could be damaged by publishing a license which simply would notwork worldwide.
kind regards from Austria,
FlorianFrance

The answers above reflect a strict and traditional understandingof the law.
Research should be led to find possible ways to circumvent partof the constraints.
This is part of my research agenda for next year and I'm looking
forward to working with you, other leads and CCi to definestrategies. Many thanks for this well structured questionnaire.

Netherlands CC0 would most likely be very difficult to enforce in the
Netherlands and would most certainly have no effect down the
chain of users of a work. At best CC0 could be enforceable as acontract, provided there is privity - therefore, such unilateral act
would be not amenable to further licensing. The same could besaid for a waiver of a right, a covenant not to assert rights etc.
Americas
Page 43

Guatemala

I will like you to explore the possibility of neutralizing the effects
of any possible legal claim on those jurisdictions where is notpossible to waive moral rights. Perhaps by a compensation clausesaying that if there is any infringement you will do X or Y thing,
and will be enough as compensation, or a System ADRs online...

MexicoThis is an excellent opportunity to build a legal instrument that
may help push legal reforms under a global scope beginning bychanges to WIPO/TRIPS treaties and then on local legislation.

Asia/Pacific
China
MainlandUnder the Copyright Law of China, moral rights are inalienable
and unwaivable.
To the extent possible in the relevant jurisdiction, we suggestthat CC0 does not apply to moral rights.

Japan

I think it is one of the simplest ways to solve the copyright chaos,and there are some companies in Japan that are interested in the
moves of CC0. It will also trigger a lot of discussions, as it may
not be that stable....

Australia

The information provided on this form is based on our preliminary
investigations only, and are not definitive statements about
Australian law. Particularly in relation to issues such as thecovenant not to sue and formalities for different
contracts/licenses etc, we need to do further investigation.
Our general conclusions are that:- CC0 would be an awkward fit under Australian law, and there isa real question as to whether it's moral rights provisions would be
enforceable- A big question we see arising from the CC0 contract is whether
the disclaimers etc would, in fact, follow the content, in theabsence of privity- the Australian situation is complicated by our low originality
requirement for protection, which results in even raw data
potentially being protected by copyright (ie not a sui generis
database right)- At least in the Australian context, a 'trimmed down' Attribution
Only license (ie with TPM clauses etc) might be worth
investigating

Page 4434. Please use this space to expand on any answers provided above.
EuropeBelgium The questions are written independently of the existence of a moral
right that makes things rather more intricate. But also on a waiver of
economic rights in copyright, the answer is not easy as it will dependon the nature of such rights, considered by some as 'human rights',
thus unwaivable, or by others as property rights, that can beabandoned.
It is thus difficult to answer on a yes/no basis to such a complex
question.
Italy

Page 45

With reference to answer n. 30 it could be added that Italian scholars
still do not agree on the legal nature of a CC license (whether it is acontract - majority - or a unilateral statement of the author), andthere isn't any court decision that can be used in solving this dispute.
Anyway, if a CC0 license is a contract, then a party cannot terminate
unilaterally the contract, unless very peculiar conditions apply (orthere is an express provision in this sense). If it is an unilateralstatement, the promisor can revoke her waiver, but in this caseanyone who relied on the waiver to use (and re-use) a work could ask
the promisor for damages (in tort).