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

pcreso at pcreso.com pcreso at pcreso.com
Sat Apr 14 00:17:18 EDT 2012


Hi Andres,

Some detail (hopefully not too much)...

Moral rights under CC apply well (generally) for creative works. I don't have any issues in that regard. 

However, CC is pushing the same licences for data, without indicating the difference between legislated moral rights for data & for creative works. I do not regard this as a responsible approach, especially with CC4 being openly touted as being more appropriate for data, and the CC4 licence wording not addressing this issue to date.

As an aside: a data mashup can be based on some underlying data without presenting any of that data in the final product. This is also a situation very different from creative works. Data was used but is no longer there as explicit content. How does CC apply? Attribution is relatively straightforward, but what about inappropriate or misleading use? 

In New Zealand the law is explained in this guide from the Copyright Council:
http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105

The relevant section:
"Who has moral rights? Moral rights belong to authors of:
- literary works, including novels, screen plays, poems and song lyrics;
- dramatic works, including dance, mime and film scenarios or scripts;
- musical works;
- artistic works, including paintings, drawings, diagrams, maps, engravings,
etchings, photographs, sculptures and architectural works.

Moral rights are also enjoyed by directors of films made on or after 1 January 1995
(even though copyright is usually owned by film producers).

Creators of sound recordings and computer-related works have no moral rights under
the Copyright Act."

Data is regarded as computer-related works, and those who release datasets under CC enjoy no moral rights to protect against misuse or misrepresentation of them or their data. Very different for those releasing creative works. Where does CC warn of this possibility when suggesting their licence be used for data?

In Australia, moral rights afford the usual protection, from
http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:
 
"Creators have the right:
- to be attributed (or credited) for their work;
- not to have their work falsely attributed; and
- not to have their work treated in a derogatory way.
...
This could include: 
- distorting, mutilating or materially altering the work in a way that prejudices the creatorʼs honour or reputation; and
- in the case of artistic works, destroying the work or exhibiting it in public in a way that
prejudices the creatorʼs honour or reputation.
...
Moral rights apply to:
- literary material such as novels, screenplays, poems, song lyrics and journal articles;
- artistic works such as paintings, drawings, architecture, sculpture, craft work, photographs, maps and plans;
- musical works;
- dramatic works such as ballets, plays, screenplays and mime;
- computer programs; and
- cinematograph films such as feature films, documentaries, music videos, television programs and television commercials."

But NOT data. Also, in Australia, moral rights are considered "personal" and "individual" rights, and cannot be vested in institutions. Most data is released by institutions, not individuals. Again, where does CC responsibly explain this to potential users?

The UK Open Government Licence is often described as a CC compliant licence. Largely it is, but it includes some additions that cover these issues pertaining to data. They were deemed necessary, otherwise an actual CC licence could probably have been used. They affirm the moral rights of the data licensor, and place responsibilities upon the user. From: http://www.nationalarchives.gov.uk/doc/open-government-licence/

Data users must:

 
        	"...ensure that you do not use the Information in a way that 
suggests any official status or that the Information Provider endorses 
you or your use of the Information;
        	
		ensure that you do not mislead others or misrepresent the Information or its source; ensure that your use of the Information does not breach the Data 
Protection Act 1998 or the Privacy and Electronic Communications (EC 
Directive) Regulations 2003."
The second requirement in particular effectively applies a moral rights clause to data released under this licence, which is missing in legislation. By suggesting users of CC licences that whatever they release under CC is afforded local moral rights protection I believe CC is misleading them. Until this is addressed, CC licences are not as applicable or suitable for data as they are for creative works. 

There is a difference in law between creative works & data, and licences for data should be clear about this.

Cheers,

  Brent Wood
 

--- On Sat, 4/14/12, Andres Guadamuz <anduril13 at gmail.com> wrote:

From: Andres Guadamuz <anduril13 at gmail.com>
Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
To: cc-licenses at lists.ibiblio.org
Date: Saturday, April 14, 2012, 12:17 PM


  

    
  
  
    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

                  _______________________________________________

                  List info and archives at http://lists.ibiblio.org/mailman/listinfo/cc-licenses

                  Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses

                  

                  In consideration of people subscribed to this list to
                  participate 

                  in the CC licenses http://wiki.creativecommons.org/4.0
                  development

                  process, please direct unrelated discussions to the
                  cc-community list

                  http://lists.ibiblio.org/mailman/listinfo/cc-community

                
              
            
          
        
      
      

      
      

      _______________________________________________
List info and archives at http://lists.ibiblio.org/mailman/listinfo/cc-licenses
Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses

In consideration of people subscribed to this list to participate 
in the CC licenses http://wiki.creativecommons.org/4.0 development
process, please direct unrelated discussions to the cc-community list
http://lists.ibiblio.org/mailman/listinfo/cc-community

    
  


-----Inline Attachment Follows-----

_______________________________________________
List info and archives at http://lists.ibiblio.org/mailman/listinfo/cc-licenses
Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses

In consideration of people subscribed to this list to participate 
in the CC licenses http://wiki.creativecommons.org/4.0 development
process, please direct unrelated discussions to the cc-community list
http://lists.ibiblio.org/mailman/listinfo/cc-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20120413/9af9bc6d/attachment-0001.html 


More information about the cc-licenses mailing list