[Cc-ca] Response to Sheila Crossey

Marcus Bornfreund marcus at uottawa.ca
Wed Jun 30 16:37:22 EDT 2004


Sheila Crossey makes some excellent points. It is true that in the 
draft Canadian licence provision waiving the moral right of integrity 
in 4(f) would have the effect of also waiving 4(g) though in no 
specific detail. Under the Canadian copyright regime there are 
essentially two moral rights (1) the right to be associated with a 
work, and (2) the right to ensure the integrity of the work (Copyright 
Act s.14.1(1)). These rights may be waived in whole or in part 
(Copyright Act s.14.1(2)). The creator may agree to permit certain uses 
which would otherwise constitute infringement of her moral rights while 
retaining all other moral rights.

As a response to Sheila's message, and for the sake of clarity, we have 
chosen to combine sections 4(f) and 4(g) into one provision dealing 
with the waiver of the creator's moral rights. The rationale of doing 
so is that all moral rights are now clearly governed under the 'except 
as otherwise agreed by the Original Author' preamble of 4(f) and are 
implicitly reserved by the Original Author unless she agrees otherwise. 
The UK licence has a similar modification. Their section 4(d) has been 
converted into a moral rights provision whereas in the American master 
licence this had simply been an attribution provision. In the UK 
provision the Original Authors assert their moral rights in relation to 
the licensed work.

Again, in certain situations the creator may agree to waive their moral 
rights. Sheila suggests that because these choices will not be built 
into the iCommons Canada licence generator itself we may want to 
develop an accompanying waiver template to serve as a vehicle for 
creators to communicate and document such an agreement.

This may prove to be practical suggestion for two reasons. First, as 
Shelia noted, the mere publication of a moral rights waiver agreement 
publicizes that the creator is open to the possibility of waiving some 
or all of their moral rights. Secondly, because the specifics of a 
waiver of moral rights will vary, a more simple moral rights waiver 
template would provide creators with a user-friendly legal instrument 
for them to explicitly waive a particular moral right under a 
particular condition. Such a waiver template could be used to, for 
example, allow the commercial use of an Original Work, previously only 
made available under a Non-Commercial licence, in consideration of 
monetary remuneration.

My opinion is that to be valuable such an accompanying waiver agreement 
would have to provided as an automated online resource much like the CC 
licence itself. The nature of the medium seems to require that 
documentation also be in electronic form. What does the list think? Is 
offering a waiver agreement helpful to creators or is it open to misuse 
and unintended results? Does the format matter?

If anyone on this list has suggestions, or a template, for creating an 
electronic waiver form I would be grateful if they could please contact 
me on or off-list:  marcus at uottawa.ca.

/Marcus

________________________________
Marcus Bornfreund, B.A., LL.B., LL.M.
 
Part-time Professor / Manager - Law & Technology Program  
<http://www.commonlaw.uottawa.ca/tech/>
Project Leader - iCommons Canada  <http://www.icommons.ca/>
Managing Editor - University of Ottawa Law & Technology Journal  
<http://www.uoltj.ca/>
 
Faculty of Law : Faculté de droit
Common Law Section : Section Common Law
University of Ottawa : Université d'Ottawa
57 Louis Pasteur Street
Ottawa, ON CANADA K1N 6N5
 
t.  613/562-5800 x3299
f.  613/562-5124
e.  marcus at uottawa.ca
 
GPG/PGP Key ID: 39DB1B1D
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