Attribution

The right of attribution is the right of authors to claim authorship of their works, and it includes the right to determine whether and how the author’s name shall be affixed to the work.¹⁸⁷ Berne Convention’s Article 6 bis (1) obliges member states to provide authors with “the right to claim authorship of the work.” The right has three elements: 1) Author has a right to have the work at-tributed to her by her legal or commonly known name (a right to prevent non-attribution). 2) Author has a right to publish anonymously or pseudo-anonymously (a right to enjoy non-attribution). Anonymity agreements are in fact void. Authors cannot validly bind themselves so as to never disclose their real identity.¹⁸⁸ 3) Author also has a right to prevent her name being attached to works that are not hers, and to prevent others’ names from being attached to her works (a right to prevent misattribution). The author has the right to be credited as the author of the work in the sense that relief is available against anyone who falsely claims to be the author of the work, who omits the author’s name from a specific work, or who falsely attributes the author’s work to a third party.¹⁸⁹ In

185 KIVIMÄKI, supra note 182, at 262 (comes to a conclusion that author can license future works that are not yet created).

186 CC license term 3.

187 See, e.g., French Intellectual Property Code, Law No. 92-597 of 1.7.1992, Journal Officiel de la République Française [J.O.] [Official Gazette of France], 3.7.1992, p. 8801 art. L. 121-1; Urheberrechtsgesetz [Copyright Law], 9.9.1965, Bundesgesetzblatt, Teil I [BGBl. I] at 1273, last amended by Gesetz, 10.8.2004, BGBl. I at 1774 § 13; Finnish Copyright Act 8.7.1961/404 3§. See also Greg Lastowka Digital Attribution: Copyright and the Right to Credit 87 B.U.L.REV. 41, 78-82 (2007). U.S. Copyright Office, Report on Orphan Works 111-112 (2006), available at http://www.copyright.gov/orphan/orphan-report-full.pdf.

188 Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 HARV.INT'L L.J. 353, 379 (2006).

189 Rigamonti, supra note 188, at 364. LIONEL BENTLY &BRAD SHERMAN,INTELLECTUAL PROPERTY LAW 232 (2d ed. 2004) (also trademark’s reverse passing off could be used).

Droit d’auteur countries paternity right is a central part of copyright law. Even though US copyright law does not recognise the paternity right of attribution, an author’s right to object to false attribution of authorship is widely recognized on the grounds of libel, passing off, invasion of privacy, and trademark law.¹⁹⁰

Each of the CC license provisions addresses a distinct concern of creators seeking to share their works. Getting credit for works is a common motivator among creators who use CC licenses to share their works.¹⁹¹ The attribution element (BY) is included in all new versions of CC-licenses.¹⁹²

“If You Distribute, or Publicly Perform the Work or any Adaptations or Collections, You must, unless a request has been made pursuant to Section 4(a), keep intact all copy-right notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or if the Original Author and/or Licensor designate another party or parties (e.g., a sponsor institute, publishing entity, journal) for attribution ("Attribution Parties") in Li-censor's copyright notice, terms of service or by other rea-sonable means, the name of such party or parties; (ii) the title of the Work if supplied;”

As CC licensors are granting economical rights without compensation the payoff typically comes in a form of recognition.¹⁹³ Having the BY element as part of every CC license reflects the special importance of status rewards for creators willing to allow access to and use of their works without demanding monetary compensation. Nevertheless, Katz among others points out that recognition is an end itself which can lead to obtaining financial rewards.¹⁹⁴

190 Rigamonti, supra note 188, at 379; Eric Schlachter, The Intellectual Property Renaissance in Cyberspace:

Why Copyright Law Could Be Unimportant on the Internet, 12 BERKELEY TECH.L.J. 15, 34 (1997) (even though law may not always require attribution, netiquette usually encourages it).

191 Dusollier, supra note 2, at 111; Schlachter, supra note 190, at 32 (notices the fact that before CC licenses were born “In some cases, attribution may be the only right that matters on the Internet. In fact, an intellectual property owner seeking cross-subsidization may encourage people to “infringe” the intellectual property through wide distribution, so long as attribution is given.”).

192 Glenn Otis Brown, Announcing (and Explaining) Our New 2.0 Licenses,

http://creativecommons.org/weblog/entry/4216 (May 25, 2004) (Attribution became standard from version 2.0 onwards as 97% of the licensors chose to include an attribution element in their licenses).

193 Mihály Ficsor, How Did We Arrive Here? The Evolution of Copyright Legislation (The End of ~ ?), Ebu Copyright Symposium 13 (2006), available at http://www.ebu.ch/CMSimages/en/B.1%20M.%20Ficsor_tcm6-43830.pdf.

194 Zachary Katz, Pitfalls of Open Licensing: An Analysis of Creative Commons Licensing, 46 IDEA 391, 396 (2006) see also Jacobsen v. Katzer Fed. Cir. 2008-1001, 14 (August 13, 2008)

http://www.cafc.uscourts.gov/opinions/08-1001.pdf (“The attribution and modification transparency require-ments directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.”).

The situations where attribution is required are so different that attribution right is hard to define exhaustively in copyright law.¹⁹⁵ The Finnish Copyright Act¹⁹⁶ 3 § requires attribution in a way that is done according to “good custom”

when a work is reproduced or made available to the public. The requirement sounds the same as “reasonable to the medium or means You are utilizing”

which is used in CC licenses. Katariina Sorvari has analyzed the ‘good custom’

requirement and sees that, for example, most TV and radio programs and com-puter software have a custom of not attributing all the authors, and TV adver-tisements do not have to spend the expensive advertisement time for attribu-tion.¹⁹⁷ The question arises, whether the valuable advertisement time affects the reasonable medium and means –consideration. In printed advertisements attribu-tion is easier than in 5 second TV spots. The cost of attribuattribu-tion alone is not a defense for not attributing authors. Otherwise book publishers might deny the attribution as it takes extra pages in a book. Instead limited time that can used to display or perform the work might be a defense and thus indirectly the cost of advertisement might be relevant after all. The judgment of whether the non-attribution is reasonable is performed case by case.¹⁹⁸ Obtaining a separate ap-proval in many cases might turn out to be easier than to explain why the name of the author was left out.¹⁹⁹

The attribution clause not only prevents non-attribution and but it also makes sure that the licensor of a derivate work doesn’t free ride on the goodwill value of the original author by misattributing.²⁰⁰

“You may only use the credit required by this Section for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licen-sor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.”

195 See SOU 1956:25, 116-117.

196 Tekijänoikeuslaki 8.7.1961/404.

197 KATARIINA SORVARI,VASTUU TEKIJÄNOIKEUDEN LOUKKAUKSESTA, ERITYISESTI TIETOVERKKOYMPÄRISTÖSSÄ 215 (2005).

198 See, e.g., BENTLY &SHERMAN, supra note 189, at 238 (describes disc-jockeys’ and broadcasters’ practice).

199 SORVARI, supra note 197, at 219.

200 See also TN 1991:7 (author A’s original work was published in a modified form with permission. The modi-fied work carried only A’s name which infringed A’s moral rights.).

Adaptations must carry a notice that the work has been adapted from the origi-nal work and the license expressly prohibits licensees from asserting any connec-tion or endorsement from the licensor. The non-endorsement clause enables the same effect that could be obtained with trademarks.²⁰¹ It helps the branding of open content which helps to distinguish the products in the market place.