[cc-licenses] Version 3.01 moral rights proposal

Gisle Hannemyr gisle at ifi.uio.no
Fri Oct 19 06:50:49 EDT 2007


Hello everybody, I'm Gisle Hannemyr, overseeing the project in Norway.
We are in the process of finalizing the translation of ver. 3.0 to
our jurisdiction.

Norway is a jurisdiction where moral rights of the author exits,
and where moral rights can not be waived (our copyright law is
in the "tradition" of French copyright law).

I do not think the proposed change to the legal code is an
improvement that will help clarify things, nor do I think
it addresses the real problem (the misinterpretation of the
"moral rights" clause).

The license is a legal document, and is supposed to be lawyer-readable
(as opposed to human-readable).  In the present "unported" 3.0 text,
the interesting bits in the "moral rights" clause reads:

   "Except [...] as may be otherwise permitted by applicable law,
    [...] 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 honor or reputation."

I don't see the problem with this.  If one actually reads what is
says, it should be obvious hat what is stated is that the moral
rights of the author in only protected in those jurisdictions where
applicable (local) law protects moral rights.  It follows that where
it is "otherwise permitted by applicable law" to disregard moral
rights - the moral rights of the author are /not/ protected.

In his Oct. 11 letter ( http://creativecommons.org/weblog/entry/7718 ),
Lessig writes:
   "Despite this intent [to leave moral rights untouched], some -
    especially within the Wikipedia community - have read this
    clause to mean not that moral rights are untouched, but that
    moral rights are being enforced by the license. That was not
    our intent."

I understand that this misunderstanding may be a problem.
However, the present clause is (IMHO) clear enough.
Do we need to amend the license text because "some" people
have problems comprehending?
I think not.

As to improved readability, I don't think the new text is better.
In some respect, it is worse.  The following clause:

   "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, and You Reproduce, Distribute
    or Publicly Perform the Work either by itself or as part of
    any Adaptations or Collections, 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 honor or
    reputation."

This clause may have two distinct (and different) interpretations:

  1. Except [...] in those jurisdictions in which the moral right
     of integrity exists [you must respect the author's moral
     right.]]
  2. [Only ...] in those jurisdictions in which the moral right
     of integrity exists [you must respect the author's moral
     rights.]

Clearly interpretation 1 is nonsense and 2 interpretation is
correct, but I don't think the amended text improves the
readability of the clause.

And underlaying assumption in Lessig's åroposal is that the source
of the misunderstanding in the Legal Code - but do we know that
this is the case?

Most people don't even bother to read the legal code.  What they
read is the "human-readable" Commons Deed, and there is what the
"unported" ver. 3.0 has to say about moral rights:

   "Nothing in this license impairs or restricts the author's
    moral rights." ( http://creativecommons.org/licenses/by/3.0/ )

Now, that (again IMHO) is a statement that is confusing and downright
misleading to a general audience (which can not be expected to know
very much about cross-jurisdiction licensing of literary and artistic
works).

My guess is that an author in a jurisdiction that asserts strong
moral rights (e.g. France or Norway) will read this paragraph in
the Commons Deed and conclude that putting the work under the
"CC by 3.0 Unported" license he or she will /retain/ the full
protection  of his or her national jurisdiction when the work
is reused or remixed under (say) "CC by 3.0 US" license.
But of course, this is not how the CC license works.

In fact, the author should be aware of that by putting the work
under the CC by 3.0 unported license, he or she essentially
/abandons/ all moral rights to the work in most of the world's
jurisdictions (i.e. outside those jurisdictions inspired by
French copyright law).

If we want to prevent the general public from misunderstanding the
"moral rights" clause in the licenses, I think we should shift
our focus from the legal code - which IMHO is clear enough already
and don't need changing, and focus on the text in the Commons Deed,
which IMHO is downright misleading.

To conclude.  I don't think the ver. 3.0 legal code is broken,
so there is no need to fix it.  I think the ver. 3.0 Commons
Deed is broken and needs fixing ASAP.

PROPOSAL: The "moral rights" text in the Commons Deed need to
be replaced  with the following paragraph:

   "The moral rights if the author is asserted only in those
    jurisdictions in which the moral right of integrity exists."
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
========================================================================
    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan



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