[cc-licenses] Version 3.01 moral rights question and proposal
melanie dulong de rosnay
melanie.dulong-de-rosnay at cersa.org
Thu Oct 18 16:32:42 EDT 2007
Hi all,
My concern as CCi community member is to avoid exporting a moral
rights standard in jurisdictions where there are no moral rights.
My concern as CC France legal lead is to ensure some legal security,
ie propose licenses which don't imply that authorizing/creating
derivative works can be a waiving/violation of moral rights (illegal
for licensor/licensee in my jurisdiction).
As I pointed to CCi fellows when the discussion started on
introducing moral rights clause in 2006, a possible solution to avoid
this risk would have been to not address moral rights and leave
national jurisdictions and courts decide. But other countries needed
to have them addressed.
2.0 France version did not mention moral rights because a CC license,
as any license or contract, applies after applicable law.
The french FAQ simply recalls that any claim on moral rights would be
solved by the judge.
I agree that current wording is not very clear and Andy, I'm sorry
your proposal has the same problem than the original: the sentence is
too long and too long sentences can lead to comprehension (if not
interpretation) issues.
To bring some clarity, what about adopting the same phrasing
methodology we introduced for collective management?
For the avoidance of doubt:
i. In those countries which do not have moral rights, nothing happens.
ii. In those countries where moral rights cannot be waived, nothing
happens.
iii. In those countries which have waivable moral rights or where it
is possible to not assert them, the licensor waives or does not
assert them
(and maybe as Ignasi suggested, lucky i and ii countries could thus
stick with 3.0 number as the clause has anyway to be rewritten for
each national jurisdiction ;-)
thanks,
melanie
Le 18 oct. 07 à 13:57, Andy Kaplan-Myrth a écrit :
> Hi all,
>
> I'm one of the joint Project Leads in Canada, where our Copyright Act
> includes moral rights. We are working on versioning to 3.x. I just
> made
> the recommended 3.01 changes to our draft, and that process raised
> some
> questions.
>
> First of all, here is the resulting paragraph in my draft -- very
> similar to how the unported draft 3.01 clause reads:
>
>> Except as otherwise agreed in writing by the Original Author, in
>> those jurisdictions in which the moral right of integrity exists and
>> by operation of local law constrains the freedom to adapt or collect
>> licensed Work, if You Reproduce, Distribute or Publicly Perform the
>> Work either by itself or as part of any Adaptations or Collective
>> Works, You must not distort, mutilate, modify or take other
>> derogatory action in relation to the Work which would be prejudicial
>> to the Original Author's honour or reputation, or use the Work in
>> association with a product, service, cause or institution to the
>> prejudice of the Original Author's honour or reputation. Where
>> Licensor is the Original Author of the Work, Licensor agrees that
>> where the exercise of the right granted in Section 3(b) of this
>> Licence (the right to make Adaptations) could violate the moral right
>> of integrity of the Original Author, the Licensor will waive or not
>> assert, as appropriate, this Section, to the fullest extent permitted
>> by the applicable national law, as long as You do not distort,
>> mutilate, modify or take other derogatory action in relation to the
>> Work that would be prejudicial to the Original Author’s honour or
>> reputation, so as to enable You to reasonably exercise Your right
>> under Section 3(b) of this Licence but not otherwise.
>
> There are two sentences. My reading of the first is that it restates
> moral rights that the original author already has (in those
> jurisdictions where they have them, that is) -- subject to any written
> agreement.
>
> The second sentence says that where moral rights may be violated by
> the
> creation of adaptations, the original author/licensor agrees not to
> enforce "this Section", being the moral rights section of the CC
> licence
> just to allow non-moral-rights-infringing adaptations of the work.
>
> So I guess I have two questions:
>
> First, since the first sentence basically restates existing moral
> rights
> if any, could it be left out completely? What does it contribute?
> On my
> reading, it only contributes:
> a. the qualification that the clause only applies in jurisdictions
> with moral rights; and
> b. the possibility of a written agreement outside the CC licence.
>
> Second, what does the promise not to assert "this Section" mean in the
> absence of a new right? Is this second sentence actually intended to
> provide a promise on the part of the Original Author not to assert
> their
> moral right of integrity (so as to enable the licensor to reasonably
> exercise their right to make adaptations but not otherwise)?
>
> I'm tempted to reduce the entire provision to something like this:
>
> <proposal>
> f. Except as otherwise agreed in writing by the Original Author, in
> those jurisdictions in which the moral right of integrity exists
> and by
> operation of local law constrains the freedom to adapt or collect
> licensed Work, where Licensor is the Original Author of the Work and
> where the exercise of the right granted in Section 3(b) of this
> Licence
> (the right to make Adaptations) could violate the Moral Right of
> integrity of the Original Author, Licensor agrees to waive or not
> assert, as appropriate, the Moral Right of integrity, to the fullest
> extent permitted by the applicable national law, as long as You do not
> distort, mutilate, modify or take other derogatory action in
> relation to
> the Work that would be prejudicial to the Original Author’s honour or
> reputation, so as to enable You to reasonably exercise Your right
> under
> Section 3(b) of this Licence but not otherwise.
> </proposal>
>
> Sorry to complicate the discussion with a new proposal!
>
> Cheers,
> Andy
>
> --
> Andy Kaplan-Myrth LL.B., M.A.
> Manager, Law & Technology, University of Ottawa
>
> ------------------------------------------------
> Faculty of Law : Faculté de droit
> University of Ottawa : Université d'Ottawa
> 57 Louis Pasteur Street
> Ottawa, ON K1N 6N5
> Canada
>
> t. 613/562-5800 x3206
> f. 613/562-5124
> e. techlaw at uottawa.ca
> w: http://www.commonlaw.uottawa.ca/tech
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