[cc-br] RE-TRANSLATION INTO ENGLISH + EXPLANATION OF SUBSTANTIVE
CHANGES
Glenn Otis Brown
glenn at creativecommons.org
Mon Aug 4 22:25:28 EDT 2003
Dear iCommons Brazil participants,
Below is the superb and amazingly helpful re-translation of the license
by Ronaldo Lemos da Silva Júnior of FGV, the project lead for iCommons
Brazil and the moderator of this discussion from forward.
The idea of this particular document is to make clear to us at Creative
Commons what substantive legal aspects of the license have changed in
the process of creating the first draft of the translation/adaptation.
It will prove useful both in the iCommons Brazil exercise, but also as
an artifact for comparing the iCommons experience in various countries.
It will also serve as a great example for other iCommons countries to
follow.
I am only kicking this discussion off, but I will chime in from time to
time with advice and questions specific to Creative Commons corporate
policy.
In a moment I'll send another email with a few humble recommendations
and pointers for having a successful discussion. Then i'll get out of
the way.
Thanks,
Glenn
(re-translation below)
------------------------------------------------------------------------
--------------------
Glenn Otis Brown
glenn at creativecommons.org
Executive Director
t +1.650.723.7572
(cc) creativecommons f
+1.650.723.8440
Attribution – NonCommercial – [Share by the same license] 1.0
[ShareAlike = Share by the same license. In Portuguese, ShareAlike
cannot be translated properly.]
THE [ENTITY] CREATIVE COMMONS IS NOT A LAW FIRM AND DOES NOT PROVIDE
LEGAL SERVICES. DISTRIBUTION OF THIS DRAFT LICENSE DOES NOT CREATE AN
ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS
INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES
REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES
RESULTING FROM ITS USE.
[CORPORATION = ENTITY. The term Corporation does not have a perfect
translation in Portuguese.]
License
THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS
CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS
PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK
OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED.
BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND
AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU
THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH
TERMS AND CONDITIONS.
1. Definitions
a. "Collective Work" means a work, such as a periodical issue,
anthology or encyclopedia, in which the Work in its entirety in
unmodified form, along with a number of other contributions,
constituting separate and independent works in themselves, are
assembled into a collective whole. A work that constitutes a Collective
Work will not be considered a Derivative Work (as defined below) for
the purposes of this License.
b. "Derivative Work" means a work based upon the Work or upon the Work
and other pre-existing works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version,
sound recording, art reproduction, abridgment, condensation, or any
other form in which the Work may be recast, transformed, or adapted,
except that a work that constitutes a Collective Work will not be
considered a Derivative Work for the purpose of this License.
c. "Licensor" means the individual or entity that offers the Work under
the terms of this License.
d. "Original Author" means the individual or entity who created the
Work.
e. "Work" means the work of authorship [able to be protected by
copyright] offered under the terms of this License.
]Copyrightable = able to be protected by copyright. In Portuguese,
copyrightable cannot be translated by a single word.]
f. "You" means an individual or entity exercising rights under this
License who has not previously violated the terms of this License with
respect to the Work, or who has received express permission from the
Licensor to exercise rights under this License despite a previous
violation.
2. Legitimate Use Rights. Nothing in this license is intended to
reduce, limit, or restrict any rights arising from [legitimate use],
first sale or other limitations on the exclusive rights of the
copyright owner under copyright law or other applicable laws.
[Fair Use Rights = Legitimate Use Rights. There is no legal translation
for “fair use rights” neither in the Brazilian legal system, nor in
Portuguese.]
3. License Grant. Licensor hereby grants You a license valid worldwide,
royalty-free, non-exclusive, perpetual (for the duration of the
applicable copyright) subject to the terms and conditions of this
License, to the exercise of the rights in the Work as stated below:
[I had to rephrase the paragraph above, because otherwise it could not
be translated correctly into Portuguese.]
a. to reproduce the Work, to incorporate the Work into one or more
Collective Works, and to reproduce the Work as incorporated in the
Collective Works;
b. to create and reproduce Derivative Works;
c. to distribute copies or [records of the work,] display publicly,
perform publicly, and perform publicly by means of a digital audio
transmission the Work including [when] incorporated in Collective Works;
[Phonorecords = records. In Portuguese, there is no specific
translation for phonorecords. I understand that phonorecords has a
generic meaning, i.e., both a CD-rom, or a magnetic tape can be
considered as a phonorecord. Therefore, the term “record” (gravações)
is more appropriate in Portuguese.]
[As = when. The term “as” cannot be translated with the same meaning
into Portuguese. I had to use “when”. Let me know if you think it is
too strict.]
d. to distribute copies or [records of derivative works,] display
publicly, perform publicly, and perform publicly by means of a digital
audio transmission Derivative Works;
The above rights may be exercised in all media and formats whether now
known or hereafter devised. The above rights include the right to make
such modifications as are technically necessary to exercise the rights
in other media and formats. All rights not expressly granted by
Licensor are hereby reserved.
[4. Restrictions. The license granted in Section 3 above is expressly
subject to and limited by the following restrictions:
I had to rephrase the sentence above because “made subject” does not
make sense in Portuguese.]
a. You may distribute, publicly display, publicly perform, or [publicly
perform by digital means] the Work only under the terms of this
License, and You must include a [copy of this license, or the Uniform
Resource Identifier for this License] with every copy or phonorecord of
the Work You distribute, publicly display, publicly perform, or
publicly perform [by digital means]. You may not offer or impose any
terms on the Work that alter or restrict the terms of this License [or
the exercise of the rights hereunder granted to the recipients]. You
may not sublicense the Work. You must keep intact all [the information]
that refers to this License and to the disclaimer of warranties. You
may not distribute, publicly display, publicly perform, or publicly
[perform by digital means] the Work with any technological measures
that control access or use of the Work in a manner inconsistent with
the terms of this License Agreement. The above applies to the Work as
incorporated in a Collective Work, but this does not require the
Collective Work apart from the Work itself [to be subject] to the terms
of this License. If You create a Collective Work, upon notice from any
Licensor You must, to the extent practicable, remove from the
Collective Work any reference to such Licensor or the Original Author,
as requested. If You create a Derivative Work, upon notice from any
Licensor You must, to the extent practicable, remove from the
Derivative Work any reference to such Licensor or the Original Author,
as requested.
[I had to rephrase several items above, because their English
construction do not translate into Portuguese. Also, I have changed
“notifications” to “information”, because “notification” has a specific
and restrictive legal meaning in Portuguese.]
b. You may distribute, publicly display, publicly perform, or publicly
[perform by digital means] a Derivative Work only under the terms of
this License, and You must include a copy [of this license,] or the
Uniform Resource Identifier [for this] License with every [copy or
record] of each Derivative Work You distribute, publicly display,
publicly perform, or publicly perform [by digital means.] You may not
offer or impose any terms on the Derivative Works that alter or
restrict the terms of this License or [the exercise of the rights
hereunder granted to the recipients,] and You must keep intact all
[information] that refer to this License and to the disclaimer of
warranties. You may not distribute, publicly display, publicly perform,
or publicly perform [by digital means] the Derivative Work with any
technological measures that control access or use of the Work in a
manner inconsistent with the terms of this License Agreement. The above
applies to the Derivative Work as incorporated in a Collective Work,
but this does not require the Collective Work apart from the Derivative
Work itself to be made subject to the terms of this License.
c. You may not exercise any of the rights [above granted] to You in
Section 3 in any manner that is [primordially] intended for or directed
toward commercial advantage or private monetary compensation. The
exchange of the Work for other copyrighted works by means of digital
file-sharing or otherwise shall not be considered to be intended for or
directed toward commercial advantage or private monetary compensation,
provided there is no payment of any monetary compensation in connection
with the exchange of copyrighted works.
[I changed the order of “above” in order to make sense in Portuguese.
Primarily = Primordially – Primarily has no corresponding translation
into Portuguese.]
d. If you distribute, publicly display, publicly perform, or publicly
perform [by digital means] the Work or any Derivative Works or
Collective Works, You must keep intact [all information relating to the
copyright of the Work] and give the Original Author credit reasonable
[in relation to] the medium or means You are utilizing by conveying the
name (or pseudonym if applicable) of the Original Author if supplied;
the title of the Work if supplied; in the case of a Derivative Work, a
credit identifying the use of the Work in the Derivative Work (e.g.,
"French translation of the Work by Original Author," or "Screenplay
based on original Work by Original Author"). Such credit may be
implemented in any reasonable manner; provided, however, that in the
case of a Derivative Work or Collective Work, at a minimum such credit
will appear where any other comparable authorship credit appears and in
a manner at least as prominent as such other comparable authorship
credit.
5. Representations, Warranties and Disclaimer
a. By offering the Work for public [diffusion] under this License,
Licensor represents and warrants that, to the best of Licensor's
knowledge [and] after reasonable inquiry:
i. Licensor [congregates] all rights in the Work necessary to grant the
license rights hereunder and to permit the lawful exercise of the
rights granted hereunder without You having any obligation to pay any
royalties, compulsory license fees, residuals or any other payments;
ii. The Work does not infringe the copyright, trademark, [publicity
rights, common law rights] or any other right of any third party or
constitute defamation, invasion of privacy or other tortious injury to
any third party.
[Release = Diffusion. The literal translation of the word “release”
does not have an appropriate meaning for this context.
The reference to “common law” does not make sense in Brazil.
Also, we do not have publicity rights here.]
b. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN
WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN "AS
IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR
ACCURACY OF THE WORK.
6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE
LAW, AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY
RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 5, IN NO EVENT WILL
LICENSOR BE LIABLE TO YOU [ON ANY LEGAL THEORY] FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF
THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
[The sentence “On Any Legal Theory” does not make legal sense in
Brazil.]
7. Termination
a. This License and the rights granted hereunder will terminate
automatically upon any breach by You of the terms of this License.
Individuals or entities who have received Derivative Works or
Collective Works from You under this License, however, will not have
their licenses terminated provided such individuals or entities remain
in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8
will survive any termination of this License.
b. Subject to the above terms and conditions, the license granted here
is perpetual (for the duration of the applicable copyright in the
Work). Notwithstanding the above, Licensor reserves the right to
[diffuse] the Work under different license terms or to stop
distributing the Work at any time; provided, however that any such
election will not serve to withdraw this License (or any other license
that has been, or is required to be, granted under the terms of this
License), and this License will continue in full force and effect
unless terminated as stated above.
[Release = Diffuse. The word “release” has a specific meaning in
Portuguese which is not appropriate in this context.]
[8. Other Provisions]
[Miscellaneous = Other Provisions. The literal translation of the word
“miscellaneous” is not usual in Portuguese.]
a. Each time You distribute or publicly perform [by digital means] the
Work or a Collective Work, the Licensor offers to the recipient a
license to the Work on the same terms and conditions as the license
granted to You under this License.
b. Each time You distribute or publicly perform [by digital means] a
Derivative Work, Licensor offers to the recipient a license to the
original Work on the same terms and conditions as the license granted
to You under this License.
c. If any provision of this License is invalid or unenforceable under
applicable law, it shall not affect the validity or enforceability of
the remainder of the terms of this License, and without further action
by the parties to this agreement, such provision shall be reformed to
the minimum extent necessary to make such provision valid and
enforceable.
d. No term or provision of this License shall be deemed waived and no
breach consented to unless such waiver or consent shall be in writing
and signed by the party to be charged with such waiver or consent.
e. This License constitutes the entire agreement between the parties
with respect to the Work licensed here. There are no understandings,
agreements or representations with respect to the Work not specified
here. Licensor shall not be bound by any additional provisions that may
appear in any communication from You. This License may not be modified
without the mutual written agreement of the Licensor and You.
Creative Commons is not a party to this License, and makes no warranty
whatsoever in connection with the Work. Creative Commons will not be
liable to You or any party on any legal theory for any damages
whatsoever, including without limitation any general, special,
incidental or consequential damages arising in connection to this
license. Notwithstanding the foregoing two (2) sentences, if Creative
Commons has expressly identified itself as the Licensor hereunder, it
shall have all rights and obligations of Licensor.
Except for the limited purpose of indicating to the public that the
Work is licensed under the CCPL, neither party will use the trademark
"Creative Commons" or any related trademark or logo of Creative Commons
without the prior written consent of Creative Commons. Any permitted
use will be in compliance with Creative Commons' then-current trademark
usage guidelines, as may be published on its website or otherwise made
available upon request from time to time.
Creative Commons may be contacted at .
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