[cc-licenses] Moral rights, Attribution & Choice of Law

Andres Guadamuz anduril13 at gmail.com
Fri Apr 13 20:17:48 EDT 2012


You have mentioned this before. Can you elaborate? Moral rights are
handled quite well in my opinion, the current wording covers all of the
national practices, this has been the subject of constant discussion
since the early licences, and the existing practice seems to fit well in
various jurisdictions.

On 13/04/2012 02:24 p.m., pcreso at pcreso.com wrote:
> Moral rights are described in a very misleading fashion, and the
> issues regarding these as providing protection for data released under
> CC licences need to be far clearer. Frequently there are none.
>
> In the US, Moral Rights only pertain to visual media. In Australia
> moral rights can only be assigned to individuals, not organisations,
> in New Zealand computer related works are exempt. CC makes little or
> no attempt to explain the distinction, & limitations of CC licences
> for data.
>
> Those who wish to release data under CC licences, something CC is
> trying to encourage, need to be aware that many countries have
> different laws covering data & creative works, and that CC licences
> relying on local Moral Rights legislation provide very different
> protections.
>
> --- On *Thu, 4/12/12, Kent Mewhort /<kmewhort at cippic.ca>/* wrote:
>
>
>     From: Kent Mewhort <kmewhort at cippic.ca>
>     Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
>     To: "Development of Creative Commons licenses"
>     <cc-licenses at lists.ibiblio.org>
>     Date: Thursday, April 12, 2012, 9:08 AM
>
>     IMO, the overall direction of this license looks to be shaping up
>     nicely.  A few comments:
>
>     Moral rights
>     -------------
>
>     1. Substantive comment:
>     It's not clear to me that this provision moves us anywhere different
>     from the status quo.  It seems to only turn the question of whether
>     moral rights have been violated into a question of whether an act is a
>     "reasonable exercise" of the rights under the license.  Isn't this
>     essentially the role of moral rights in the first place?  Moral rights
>     set the threshold on whether a particular exercise of a copyright
>     license or assignment is reasonable in light of the author's personal
>     interests.
>
>     I would suggest leaving moral rights altogether intact.
>     Attribution and
>     non-association form part of the CC license terms themselves, so are
>     unlikely to be otherwise violated.  For other moral rights such as
>     integrity and derogatory action, this is generally a reasonable
>     high bar
>     and I can't image would pose any significant sharing hurdles
>     (unless the
>     bar is much lower in some other jurisdictions).  Alternatively, if
>     we do
>     insist on waiving moral rights, I suggest simply waiving them entirely
>     to avoid any disputes about what constitutes a "reasonable exercise".
>
>     2. Formal comment:
>     This wording took a couple of doubling-backs to understand what it's
>     actually saying. To improve clarity, I suggest striking out the two
>     embedded "however..." clauses and instead leading off with "Only
>     to the
>     minimum extend possible and necessary to allow You to reasonably
>     exercise...".
>
>     Attribution
>     ------------
>
>     3. The scope of "any reasonable manner" seems a bit too broad,
>     especially given the importance and multi-faceted purpose of
>     attribution. I liked the old "at least as prominent as" provision,
>     though I can see how this can cause problems in some contexts.  How
>     about "any reasonably prominent manner", or even "a reasonable manner
>     consistent with, to the extent feasible, any customary attribution for
>     the medium or means You are using".
>
>     New definition of to "Share"
>     -----------------------------
>
>     4. If we end up with no ports, this definition may not be
>     sufficient to
>     equally cover the intended activities in all jurisdictions. For
>     example,
>     in Canada, we have no "making available" right as of yet and the right
>     to "communicate to the public" by telecommunication arguably doesn't
>     cover one-to-one downloads through services such as iTunes (an issue
>     which is presently before our Supreme Court).  It might be
>     advisable to
>     insert an "or distribute" in there.
>
>
>     Choice of Law
>     --------------
>
>     5. There hasn't been much discussion on this, but I think deserves
>     careful consideration in light of the move towards
>     internationalization.  Given the different laws on fair dealing,
>     copyright terms, and other aspects of copyright law, it creates a
>     lot of
>     uncertainty to simply leave choice of law to local conflict of law
>     rules.  I think something analogous to the U.K. government license
>     could
>     work well to tighten up certainty: "This licence is governed by
>     the laws
>     of the jurisdiction in which the Information Provider has its
>     principal
>     place of business, unless otherwise specified by the Information
>     Provider. "
>
>     Alright, that's all for now :)!
>
>     Kent
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>
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