[cc-licenses] One use of nc and nd: ad-hoc harmonisation of fair use
javier at candeira.com
Tue Apr 24 04:43:28 EDT 2007
Rob Myers wrote:
> It shouldn't. ND should be abolished and replaced with a Fair Use guarantee.
The more restrictive by-nc-nd licenses, in their many international forms,
have the effect of "harmonising" a wider form of "fair use" or "fair
dealing" across all jurisdictions that have their own Creative Commons licenses.
For instance, Spain has no fair use doctrine, but "copia privada", which is
a legal concept meaning "private copy" and is much more lenient than fair use.
Under Spanish law, any individual can make a copy of any work (except
computer programs) for their own use. Private copying of non-programmatic
works is never a restricted act, although there is a levy on blank media,
ostensibly for compensating artists' "lost sales".
In this context, by-nc-nd adds many permissions to countries with fair
use/fair dealing, in removing the various tests required. In the Spanish
context, it also adds the permission to redistribute, which is not present
in "copia privada".
International harmonisation of restrictions and penalties is already being
carried out by WIPO et al; it is good that Creative Commons is harmonising
exceptions, even if it is at the lowest end, as in the few fair-use-like
permissions granted by by-nc-nd.
-- Javier Candeira
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