[Cc-ca] Response to Russell McOrmond
Philippa Lawson
plawson at uottawa.ca
Mon Jul 19 11:10:16 EDT 2004
Does the problem here have to do with applying the same rules to
artistic works as to technical works such as software?
I.e. - Russell - do your objections apply equally to artistic works such
as sculptures, films, drawings, etc.?
Pippa
Russell McOrmond wrote:
>On Thu, 15 Jul 2004, Marcus Bornfreund wrote:
>
>
>
>>i. You must not falsely attribute the Work to someone other than the
>>Original Author;
>>iv. If applicable, You must respect the Original Author's wish to
>>remain anonymous.
>>
>>
>
>
>
>
>>ii. You must not do anything that results in a material distortion, or
>>mutilation of the Work that is prejudicial to the Original Author's
>>honour or reputation;
>>iii. You must not associate the Work with a product, service, cause or
>>institution that is prejudicial to the Original Author's honour or
>>reputation; and
>>
>>
>
>
> I just want to go on record as stating that I believe that while (i) and
>(iv) are compatible with the peer-distribution/peer-production environment
>that CC creates, that (ii) and (iii) are not. To keep (ii) and (iii)
>intact is to create something other than a commons which may be consistent
>with Canadian law, but is not consistent with the expectations or
>requirement of those of us that participate (almost exclusively) within
>peer-production and peer-distribution environments.
>
>
> A similar conversation has happened in the context of FLOSS licenses a
>number of times over the years. Nowhere in specific license agreements
>does it state that the works are royalty-free. This is not something
>stated in the license agreement, but follows directly from the
>definitions. In order to be "Free Software" or "Open Source software" you
>should not need any additional licenses (royalty based or otherwise) or
>communicate with any author (about moral or material rights).
>
>http://www.fsf.org/philosophy/free-sw.html
>
> A program is free software if users have all of these freedoms. Thus,
> you should be free to redistribute copies, either with or without
> modifications, either gratis or charging a fee for distribution, to
> anyone anywhere. Being free to do these things means (among other
> things) that you do not have to ask or pay for permission.
>
> You should also have the freedom to make modifications and use them
> privately in your own work or play, without even mentioning that they
> exist. If you do publish your changes, you should not be required to
> notify anyone in particular, or in any particular way.
>
> The freedom to use a program means the freedom for any kind of person
> or organization to use it on any kind of computer system, for any kind
> of overall job, and without being required to communicate subsequently
> with the developer or any other specific entity.
>
>
> Notice *any kind of person or organization* which is in direct conflict
>with (iii). Having to consider what any specific contributor to the
>commons considers to be "prejudicial to the Original Author's honour or
>reputation" is a requirement "to communicate subsequently with the
>developer or any other specific entity".
>
> I know that iCommons Canada will be trying to translate FLOSS licenses
>in the future, so this is worth thinking about now. Any license where
>(ii) and (iii) are retained would not qualify as FLOSS.
>
>
> Now I realize that the Creative Commons doesn't have a definition like
>the Free Software foundation does, but I believe it is worth noting that
>they did take their inspiration from the FLOSS movement. They attempt to
>offer similar features for peer-distribution and peer-production of
>non-software works.
>
>http://creativecommons.org/learn/aboutus/
>
> Taking inspiration in part from the Free Software Foundation's GNU
> General Public License (GNU GPL), Creative Commons has developed a Web
> application that helps people dedicate their creative works to the
> public domain -- or retain their copyright while licensing them as
> free for certain uses, on certain conditions. Unlike the GNU GPL,
> Creative Commons licenses are not designed for software, but rather
> for other kinds of creative works: websites, scholarship, music, film,
> photography, literature, courseware, etc. We hope to build upon and
> complement the work of others who have created public licenses for a
> variety of creative works.
>
>
>
>
>>Because the existence of these important rights is often unknown to
>>Canadian creators, we have decided to err on the side of caution by
>>building their protection into the iCommons Canada licence as a
>>default.
>>
>>
>
> Since people are unaware of the existence of these rights, and most
>people working in a commons work in an international context where the
>consequences are never discussed, erring on the side of caution would be
>to waive them for works within the Creative Commons.
>
> The last thing the international Creative Commons movement needs would
>be a lawsuit of someone trying to take something out of the commons by
>exerting specific moral rights against the commons. This would create a
>chill against participation in the commons, or at least a chill against
>contributions from citizens of specific countries.
>
>
>
>>This is not true; reasonable use, ie. use not so unreasonable that it
>>would offend a creator's moral rights is protected by law.
>>
>>
>
> Under (ii) and (iii) above there is no clear indication of what is
>"reasonable use" other than to talk with the creator. Once you have to
>talk with the creator to find out their personal/political views on what
>they consider "prejudicial to the Original Author's honour or reputation",
>the pre-authorization nature of the Creative Commons is gone and thus the
>licenses end up serving no practical purpose.
>
>
>
>>What Russell is missing in his critical analysis is that:
>>
>>
>
> What Marcus has forgotten is that once a case is before the courts, the
>Commons has already lost. All that is required to create a chill against
>the participation in the Creative Commons is to have an accusation of
>infringement that has any chance of being considered legitimate. If a CC
>participant can say "you are a military installation, and I am a Quaker"
>then you have created a conversation that is itself incompatible with the
>CC concept.
>
>
>
>>Because of this, some uncertainty is an unavoidable by-product of
>>'porting' the licence into the Canadian copyright regime, regardless of
>>which approach we take to moral rights.
>>
>>
>
> I do not see how waiving (ii) and (iii) within the context of a CC
>license creates any uncertainty. It is these moral rights which create
>the uncertainty, and the uncertainty is gone once they are appropriately
>waived.
>
> I also need to ask if this really is an all-or-nothing situation. With
>material rights you can license them and set out clear conditions where
>permission is granted. Can the same thing not be done with moral rights
>where a commons adhering to the CC license will never have (ii) and (iii)
>exerted against that commons, while an author can still exert moral rights
>outside of the commons?
>
>
>
--
***********************************************************************
Philippa Lawson
Executive Director
Canadian Internet Policy and Public Interest Clinic (CIPPIC)
University of Ottawa, Faculty of Law
57 Louis Pasteur, Ottawa, ON K1N 6N5
tel: (613) 562-5800 x.2556
fax: (613) 562-5417
e-mail: plawson at uottawa <mailto:plawson at uottawa>
http://www.cippic.ca
*****************************************************************
If you have received this communication in error and you are not the
intended recipient of its contents, please notify us immediately by
reply email or by calling 613-562-5800 x.2556. This message is intended
solely for the use of the person to whom it is addressed and may contain
information that is privileged and confidential. If you are not the
intended recipient, or an agent responsible for delivering the message
to the intended recipient, any disclosure, dissemination, distribution
or copying of this communication is strictly prohibited.
More information about the Cc-ca
mailing list