[License-review] veto against Unlicence

[Matija Šuklje]

Die 15. 05. 20 et hora 20:33 Pamela Chestek scripsit:
> There are lots of lawyers on the list; if any thought that the position
> had merit I would have expected that person to pipe up.

I’ll bite … writing in my private capacity, as a Slovenian lawyer.

	TL;DR: looks fine to me

The Slovenian Zakon o avtorski in sorodnih pravicah [ZASP] (Copyright and 
Related Rights Act)¹ is pretty similar to the German one, and it shares with 
France the inability of a full copyright assignment (mostly due to moral 
rights not being transferable) as well as the inability to dedicate something 
to the public domain.

Now, if we were to look at only the law act’s text itself, first thing of note 
is that the public domain is not mentioned even once. It is implicit in the 
ZASP §58, which dictates that the copyright protection ceases after the 
appropriate amount of time lapses (typically 70 years after death – see §59 
and below).

ZASP §73 and below handle copyright contract law – which talks about exclusive 
and non-exclusive assignments (odd choice of words, I agree) of individual 
rights.

ZASP §80 handles the needed formalities for such an “assignment” (exclusive or 
non-exclusive) of economic and other author’s rights – and the only one is 
that it needs to be in written form. Any noncompliance  with  the  formality,  
all controversial or unclear stipulations are to be interpreted in favour of 
the author. The Unlicense is very much in written form.

Interestingly enough, the Copyright and Related Rights Act only covers 
statutory licenses, so for a license agreement we need to look into the 
general Obligacijski zakonik [OZ] (Obligations Code)², which in turn oddly 
enough talks only about “the right to exploit a patented invention, technical 
know-how or experience, or a trademark, pattern or model”, not copyright. But 
it is assumed it covers copyright licenses as well.

There you will again find (in OZ §705) the only formality is that a license 
agreement needs to be in written form. Which with Unlicense is the case.

So I would argue under Slovenian law the formality is met.

You also need to remember that esp. if you think about artists, a lot of not 
just licenses, but even full assignments happen in very sloppy ways. It is all 
a very messy business, and in the computer industry we tend to be (sometimes a 
bit too) organised and clean.

The next question is the content then.

As mentioned before, in Slovenia you cannot assign something to the public 
domain, so that stipulation’s dead.

But the second paragraph:

”Anyone is free to copy, modify, publish, use, compile, sell, or distribute 
this software, either in source code form or as a compiled binary, for any 
purpose, commercial or non-commercial, and by any means.” 

So, does paragraph cover enough rights to be FOSS?
0. Use? – check
1. Study? – check
2. Share? – check
3. Improve? – check

seems well enough for me as a unilateral license agreement/assignment of those 
individual economic author’s rights to “anyone”. 

The third paragraph is a bit weird, and would probably be subject to 
interpretation on what the author(s) meant with it – but I would wager a 
reasonable interpretation would be that the (obviously) lay person drafting 
this license/dedication intended their code to be 1) released into the public 
domain, and where that is not possible, semi-implicitly 2) everyone is given 
the individual rights as described in paragraph 2.

In any case the moral rights remain untouched, but according to ZASP §§17-20, 
those that apply to computer programs are:
• right to the first disclosure
• right to recognition (or not) as the author
• right to integrity of the work, if such tampering could be prejudicial to 
the author’s person

I would be very surprised if Unlicense did not get interpreted as a valid 
copyright license/“non-exclusive assignment” here.

Granted, it is not the best worded license out there, but it meets the legal 
formality and does mention the individual rights.

Would I suggest using Unlicense? Hell no. CC0-1.0 does a way better job at 
achieving the same thing.

But I find it extremely hard to interpret it in any other way than it is a 
valid FOSS license in my jurisdiction.


cheers,
Matija
—
1	http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO403#

	English translation:
	http://www.uil-sipo.si/fileadmin/upload_folder/zakonodaja/
ZASP_EN_2007.pdf

2	http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO1263

	English translation:
	http://www.uil-sipo.si/fileadmin/upload_folder/zakonodaja/povezano/
Obligations-Code_Slovenia_2001.pdf
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