[cc-licenses] Version 3.01 moral rights question and proposal

Prodromos Tsiavos p.tsiavos at lse.ac.uk
Fri Oct 19 13:19:15 EDT 2007


I think Gisle has a point: the CC policy re moral rights it is not clear.

There are three possible CC positions:

(a) the CC licences impose a right of integrity across all jurisdictions
(b) the CC licences do not touch moral rights where they cannot be waived 
and remain silent with respect to all other jurisdictions (where MRs are 
waivable or need assertion)
(c) the CC licences do not touch moral rights where they cannot be waived; 
do not assert them where they require assertion; and waive them where they 
may be waived.

We all agree that (a) is not the CC position; I guess option (c) is the way 
in which CC should work; and option (b) is what I have seen in some of the 
v.3.0 National implementations and what the Commons Deed implies.

The point is that the licence should explicitly explain how the Moral rights 
clause operates:
[i] even if you are in a country where moral rights cannot be waived, by 
using a CC 3.x licence, you agree that your moral rights will not be 
asserted or will be waived in the jurisdictions where this is possible
[ii] even if you are in a country where moral rights have to be asserted or 
may be waived, you do not assert or agree to waive them, but  also 
acknowledge that they have to be respected in the countries where MRs cannot 
be waived.

I agree with Melanie's suggestion to use a language/ structure similar to 
the one used for collecting societies (CSs), but I think here the situation 
is slightly different: whereas in the case of CSs we were choosing which of 
the three option(s) we were to include in the national version of the 
licence, in the case of Moral rights all three options have to be included 
though slightly amended depending whether the national CC licence is of a 
jurisdiction where rights may be waived or not (e.g. choose a wording along 
the lines of [i] or [ii]).

Btw, is it legally possible e.g. in the French or Norwegian CC licences to 
have a clause saying that I m waiving or not asserting my moral right of 
integrity in those jurisdiction where it is permitted?

thnx
pRo
----- Original Message ----- 
From: "Patrick Peiffer" <peiffer.patrick at gmail.com>
To: "Development of Creative Commons licenses" 
<cc-licenses at lists.ibiblio.org>
Sent: Friday, October 19, 2007 5:40 PM
Subject: Re: [cc-licenses] Version 3.01 moral rights question and proposal


Hi all,

That's  a great idea, Mélanie, treating the moral rights issue like
the collecting societies.

It has the advantage to, structurally, fit an unported licence as well
as jurisdiction licences.

As far as porting is concerned, this would introduce a welcome good
practice: that any changes in view of a 3.01 licence need not only be
pushed through for the unported licence, but also include a clear path
for jurisdiction licences.

And, which was my main problem with the original proposal, it is much
better as far as comprehension and (possibly false) interpretation are
concerned.

Best, Patrick Peiffer
cc luxembourg





On 18/10/2007, melanie dulong de rosnay
<melanie.dulong-de-rosnay at cersa.org> wrote:
> 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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