Intro & scope¶
I had the following train of thought during a thread that emerged on the Legal Network about the question of consequences of the removal of a copyright statement in a super-permissive license like the 0BSD.
There the question was: since the 0BSD itself very consciously does not require attribution, would anything prevent anyone from removing the copyright statement, if it was there originally?
As that thread triggered this thought experiment, the scope of both is primarily limited to copyright statements (and their removal) within FOSS.
Of course, if the license does not require you to keep the copyright statements, surely the law does … right?
… you might be surprised. As was I ;)
In short …
An author can only be a physical person.
Moral rights can only be enjoyed by the author and are non-transferable.
Since a legal entity – like a company or NGO – is not a physical person, it cannot be an author and as such does not have moral rights.
Attribution is a moral right (in Slovenia, and many continental European jurisdictions).
Ergo, an author (physical person) has the right to attribution, but a legal entity does not.
… for a much more detailed explanation including what that means for copyright statements, read on.
Now let us analyse this step-by-step.
As mentioned before, this thought experiment will be limited to the Slovenian jurisdiction, and therefore Zakon o avtorski in sorodnih pravicah (ZASP) (= Copyright and Related Rights Act (of Slovenia), unofficial English translation) applies. That said, I expect that a similar analysis in many other droit d’auteur (e.g. continental European) jurisdictions would come to similar conclusions.12
We need to start at the very beginning – who is the author?
Unsurprisingly, as early as Chapter 1 (“General Provisions”), Section 2 (“Author”), there are two relevant articles:
ZASP §10 (“Natural person”)3 needs no further comment:
An author is a natural person who has created a copyright work.
And ZASP §11 (“Presumption of authorship”) pretty much says what we would expect it to:
(1) A person whose name, pseudonym or artist’s mark appears in the customary manner on the work itself, or is so indicated at the time of disclosure of the work, shall be deemed to be the author of the work until proved otherwise.
(2) Where the author is not known pursuant to the previous paragraph, the person who published the work shall be deemed to be entitled to enforce copyright. If such a person is not indicated, the person who disclosed the work shall be so entitled.
(3) The preceding paragraph shall cease to apply once the identity of the author becomes known. The entitled person referred to in the preceding paragraph shall transfer the benefits derived from copyright to the author unless otherwise provided by contract.
Then there is ZASP §18 (“Right to recognition of authorship”), which falls under the “Moral rights” subsection (of Section 3 “Copyright”):
(1) The author shall have the exclusive right to recognition of the authorship of his work.
(2) The author may decide whether and how his authorship is to be indicated at the time of disclosure of his work.
Now let us look at the article that actually defines copyright statements in our law – ZASP §175 (“Symbols and notices of reserved exclusive rights”) says (in brackets I put the more correct, weaker language, closer to the original text4):
(1) Holders of the exclusive author’s rights under this Act [may] put a notice on the original or copies of their works consisting of the symbol © accompanied by their name or registered name and the year of first disclosure.
(2) Holders of exclusive rights to phonograms under this Act shall have the right to put a notice on the original or copies of their published phonograms or on their containers consisting of the symbol P accompanied by their name or registered name and the year of first publication.
(3) Until proven otherwise, it shall be deemed that the exclusive rights in works or phonograms that bear notices referred to in this Article exist and belong to the person designated therein.
(4) The provisions of this Article shall not affect the existence or protection of rights under this Act.
As we can see, ZASP §175, which talks about copyright statements, falls within Chapter 7 (“Protection of rights”) under Section 3 (“Measures to ensure protection”), which comes after Section 2 (“Judicial protection”); and much much later than Chapter 1 (“General provisions”), Section 3 (“Copyright”), where “Moral rights”(= Subsection 2, §§ 16-20), “Economic rights” (= Subsection 3, §§ 21-33) and “Other rights of the author” (= Subsection 4, §§ 34-38) reside.5
To better visualise this, I made an overview of the relevant articles and where they fall within the whole structure of ZASP at the bottom of this article for reference.
For context, the only other article in Ch. 7, Sec. 3 (“Measures to ensure protection”) is §174, which talks about the (also) optional deposit and registration of copyrighted works.
As such – and this is perhaps the biggest surprise –, copyright statements, per se, are not rights. They are merely a helping tool to assist finding the most likely copyright (exclusive rights) holder.
OK, let us go back to the Judicial Protection section of ZASP, to see if we can find anything there.
§167 (“Claims”) is limited to violations of exclusive rights, and since copyright statements per se are not rights at all, this article does not apply to them. It does apply to proper indication of authorship though, but those are bound to the author (physical person).
§168 (“Compensation for damage and punitive damages”) just explains damages, but nothing seems to match copyright statements in particular, perhaps the closest is §168(3):
(3) If a right under this Act was infringed intentionally or as a result of gross negligence, the beneficiary may claim the payment of the agreed or customary royalties or remuneration for such use, increased by up to 200%, irrespective of whether he suffered any actual pecuniary damage because of the infringement.
… but, honestly, in the context of a (especially permissively-licensed) piece of FOSS, what is the customary remuneration for the “use” (is there even one?) of just and only the (removed) copyright notice? Since FOSS is typically made online for free anyway, one could reasonably assume it is zero, and since
0 × 300% = 0 we can probably ignore §168 in practice.
And §169 (“Monetary satisfaction for non-pecuniary damage”) is limited only to moral rights of the author:
Irrespective of any compensation for pecuniary damage, or even if there is no pecuniary damage suffered, the court may award to an author or a performer fair monetary compensation for the mental anguish and suffering endured as a result of the infringement of his moral rights if it finds that the circumstances of the case, and especially the degree of suffering and its duration, so dictate.
Excursion to criminal law¶
Since certain copyright violations are also criminal offenses, I wanted to be diligent and see if there is anything in Kazenski zakonik (KZ-1) (= Criminal code (of Slovenia), unofficial English translation) that would forbid people from removing copyright statements.
In §147 (“Violation of Moral Copyright”) of KZ-1 there are two paragraphs that at first glance could be relevant.
(1) Whoever publishes, presents, performs or transmits the work of another author under his own name or the name of a third person, or whoever gives permission for this to be done shall be punished by a fine or sentenced to imprisonment for not more than one year.
(2) Whoever deforms, truncates or otherwise interferes with the content of the work of another person without his authorisation shall be punished by a fine or sentenced to imprisonment for not more than six months.
(3) The prosecution shall be initiated upon a complaint.
§147 in ¶1, again, only applies if the person in the copyright notice is in fact the author.
§147 in ¶2 sounds like it could (with a very broad reading and some luck) be interpreted in the way it would criminalise the removal of a copyright notice, but since we are dealing with FOSS, we already have “authorisation” to modify/“deform” the work because of the FOSS license, so that should not be a problem in practice.
§148 (“Violation of Material Copyright”) is limited to material rights and to a high total market value, so that does not apply in our case.
You could be tempted by §149’s title (“Violation of Copyright and Related Rights”), but it is wrongly translated – a correct translation would be “Violation of Copyright-related Rights”, which is also what it covers – so that one does not apply at all here.
This will sound like a bold statement, but I see no other way to interpret ZASP other than that copyright statements are not part of rights of the exclusive rights holder, but are only an optional measure that the holder may use in order ease their identification and protection. And as such:
- removal of copyright statements of authors is a violation of both civil (ZASP) and criminal (KZ-1) law; but
- removal of copyright statements of copyright holders who are not authors, is not againts the law.
… and I am just as surprised about this statement as you probably are.
So let us try to lay out the difference between the two in a bit more detail.
If the copyright statement (ZASP §175) is how the author (§10), who is also the copyright holder6, decided (§18.2) they want to be properly attributed, that is indeed their exclusive right (§18.1).
If someone removed such copyright statement, that would violate the author’s exclusive (moral) right to attribution (ZASP §167) and that person could, as a consequence, be liable for both (punitive) damages (ZASP §168) and “mental anguish and suffering endured as a result of the infringement of [author’s] moral rights” (ZASP §169).
In addition to that, if that person would also add their own name, they could well be be looking at a potential jail sentence to up to one year for violation of moral copyright rights (KZ-1 §147).
On the other hand, if the copyright (exclusive rights) holder – and the one in the copyright statement – is a legal entity, things are quite different.
Since only a physical person can be author (ZASP §10) and only the author has the right to recognision of authorship (§18) – or any moral rights for that matter –, the legal entity does not have that right.
As such, its copyright statement (ZASP §175) carries no additional meaning. It is not a right, merely an optional “measure to ensure protection”.
As a consequence of it not being an (exclusive) right, let alone a moral right, the legal entity does not have active legitimation7 under either copyright (ZASP) or criminal (KZ-1) law.
There is nothing in ZASP that would prevent someone to remove a copyright statement that is not of the author.
Do not remove copyright statements
Does that mean you should simply go around and remove all legal entities’ copyright notices? Hell no!
- It is not nice.
- As I write in my blog post on copyright statements, there are good reasons for having them.
- And above all, almost all FOSS licenses require you to keep the copyright statements. Failing to do so could result in a breach of license, and that in turn in a copyright violation.
The following overview includes all chapters and sections; but subsections only where they are relevant.
- Ch. 1 “General provisions”
- Ch. 2 “Substantive copyright law”
- Sec. 1 “Copyright works”
- Sec. 2 “Author”
- §10 “Natural person”
- §11 “Presumption of authorship”
- Sec. 3 “Copyright”
- Subsec. 1 “General”
- Subsec. 2 “Moral rights”
- §18 “Right to recognition of authorship”
- Subsec. 3 “Economic rights”
- Subsec. 4 “Other rights of the author”
- Subsec. 5 “Relationship between copyright and ownership”
- Sec. 4 “Limitations to copyright”
- Sec. 5 “Limitations on the duration of copyright”
- Ch. 3 “Legal transactions involving copyright”
- Sec. 1 “General provisions”
- Sec. 2 “General part of copyright contract law”
- Sec. 3 “Special part of copyright contract law”
- Ch. 4 “Special provisions on copyright works”
- Sec. 1 “Audiovisual works”
- Sec. 2 “Computer programs”
- Ch. 5 “Related rights”
- Sec. 1 “Rights of performers”
- Sec. 2 “Rights of producers of phonograms”
- Sec. 3 “Rights of film producers”
- Sec. 4 “Rights of broadcasting organisations”
- Sec. 5 “Rights of publishers”
- Sec. 6 “Rights of makers of databases”
Ch. 6 “Management and cnforcement of rights”(ceased to be in force)
- Ch. 7 “Protection of rights”
- Sec. 1 “General provisions”
- Sec. 2 “Judicial protection”
- §167 “Claims”
- §168 “Compensation for damage and punitive damages”
- §169 “Monetary satisfaction for non-pecuniary damage”
- Sec. 3 “Measures to ensure protection”
- §175 “Symbols and notices of reserved exclusive rights”
- Ch. 8 “Relations with foreign elements”
- Ch. 9“Penal provisions”
- Ch. 10 “Transitional and final provisions”
hook out → ha, that was fun
:] …weird, but fun
In France it would play our very similarly. There is even a court case dealing with this (case № 13-23.566), with the added complication of collective works, which have a bit special provision in France. Hat tip to Hugo Roy for this information. ↩
In Italy it would play out very similarly too. Hat tip to Carlo Piana for this information. ↩
Natural person and physical person are synonyms. ↩
Compare the original (the word in question is emphasised by me): “(1) Izključni imetniki avtorskih pravic iz tega zakona lahko opremijo izvirnik ali primerke svojega dela z znakom (c) pred svojim imenom ali firmo in letom prve objave.” and the English translation on WIPO’s website: “(1) Holders of the exclusive author’s rights under this Act shall have the right to put a notice on the original or copies of their works consisting of the symbol © accompanied by their name or registered name and the year of first disclosure.” ↩
Hat tip to Carlo Piana for pointing out to me that this flows pretty much directly from §15 of the Berne Convenion through TRIPS and ultimately EU Enforcement Directive (IPRED). ↩
I.e. the author has not transferred their exclusive rights to another physical person or legal entity. ↩
Legalese for “ability to be the one to sue”. Vice versa “ability to be the one to be sued” is called passive legitimation. ↩