Page:The digital public domain.pdf/113

86 copyright licences which aim at making new works available in the public domain immediately, through a relinquishment in perpetuity of all present and future rights under copyright law by the author. This means that, in most European copyright systems, the so-called “Public Dedication License” inserted by the US Creative Commons project into its web-based system of licence selection could not be used validly by copyright holders to opt for such a relinquishment in perpetuity. In most European legal systems, the open access management of copyright cannot achieve the result of expanding the legal scope of the public domain through the relinquishment of new works. In those systems where copyright law grants non-waivable author rights, this sort of relinquishment through the adoption of a purely contractual mechanism could never have erga omnes effects. At best, the effects of this dedication could be limited to the legal sphere of the sole parties involved in the transaction and would never address the public at large directly.

Considering that in droit d’auteur jurisdictions open access initiatives do not have the potential to add new pieces of work to the public domain, it seems evident that the most fruitful use of such licences for the purpose of building digital commons may concern mostly “old” creative works which have already entered the public domain. This can be the case for digital performances and recordings of classical music (up until the works of Debussy and Ravel) whose legal subjection to the enforcement of copyright-related rights has been preventively avoided through the adoption of an open access licence by performers and/or record producers.

As explained in the literature, the fact that the most popular and adopted open access licences, Creative Commons, have been developed in the US in the context of the US copyright system has called into question the same applicability of these licences to the case of management of sole copyright-related rights. This uncertainty has been aroused by the fact that, so far, in the original texts of CC licences and in their translations and adaptations to other jurisdictions, no reference was made to the management of rights related to copyright. After careful examination of these licences, it is easy to understand that this lack of reference should not mean that CC licensing standards are not applicable to the management of these rights.