[Cc-ca] Waiving the right of integrity

Marcus Bornfreund marcus at uottawa.ca
Tue Aug 31 23:58:00 EDT 2004


Hi everyone. In 
http://lists.ibiblio.org/pipermail/cc-ca/2004-July/000027.html I 
explained that, due to the absence of the ability to specifically 
retain or waive moral rights, iCommons Canada has chosen to build the 
retention of the right of integrity into the licence itself. In doing 
so we felt that we were following cc's lead with respect to its dealing 
with the right of attribution (built-in), as well as the approach of 
the other iCommons countries who have addressed this issue before us 
(retained).

Outspoken members of the cc-ca email discussion list resisted the 
non-waiver of the right of integrity to the point where they have 
withdrawn support for the cc-ca licence, instead swearing they would 
rather use the generic US-based cc licence since they believe that 
doing so would have the effect of waiving their moral rights - while 
still allowing them to participate in the cc initiative. Though this 
tactic is debatable in terms of its legal effect, it is a point well 
taken.

As previously brought to my attention by Russell et al. and quoting 
from http://creativecommons.org/projects/international/overview:

"To preserve the global spirit of Creative Commons, we strive for 
utmost similarity between the licenses worldwide. It is very important 
to us that the porting be very close to the original and go into the 
specifics of national law only when absolutely necessary."

Upon a re-reading of the specific guidance given to iCommons project 
leaders above and after consultation with several stakeholders, 
including cc staff members, I understand that for the sake of 
interoperability it is an iCommons participant country's mandate to 
produce a translated domestic licence which has the same effect as the 
generic US-based cc master licence. This, of course, is regardless of 
other complementary or dissimilar copyright laws and concepts which may 
exist in the participating country and wish to be applied. Because this 
is a licence between the creator and user, the domestic default 
copyright regime need not be applied to the cc master licence (though 
it is certainly an enriching learning experience to see how it may be).

Since the generic licence does not make mention of the right of 
integrity it follows that to introduce and retain this right in the 
cc-ca licence only serves to reduce interoperability. It is on this 
point that iCommons Canada is reversing its previous decision to 
inherently retain the right of integrity in the cc-ca licence. Instead, 
the right of integrity will be waived in the cc-ca licence until such 
time as its retention can be selected from the Creative Commons licence 
generator.

The debate over the right of integrity was also valuable in 
illuminating Professor Lessig's oft-quoted expression: Code is law. By 
including the waiver of the right of integrity in the code itself, I am 
legislating a particular code of conduct for all those who use it (both 
original and downstream creators). Believe me when I say that I would 
rather not be making this choice on anyone's behalf. Participation in 
the creative commons should be voluntary and on a creator's own terms. 
It is my express hope that Creative Commons will commit the resources 
necessary to enabling this functionality by adding the right of 
integrity to their rooster of licence elements.

A FAQ on moral rights will be added to CIPPIC's website shortly: 
http://www.cippic.ca/en/faqs-resources/moral-rights/. If you are 
concerned about these issues I urge you to take a few minutes to read 
it.

/Marcus
___________________________
Marcus Bornfreund
 
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+ Project Leader:
    iCommons Canada <http://www.icommons.ca/>
 
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