[cc-licenses] Possible ambiguity in the v.4

Diane Peters diane at creativecommons.org
Fri Apr 20 09:56:29 EDT 2012


The language you point to is important to get right, so if we need to
tighten or explain it further to avoid ambiguity we welcome suggestions.
 One alternative is proposed below, but first we should be clear on the
policy choice we're trying to implement in the legal code.

There are only two places in 4.0d1 where we used that language -- Section
2(b)(1) and Section 2(b)(2).  These sections deal with rights other than
copyright and neighboring rights that could restrict the licensee's ability
to use the work as otherwise expected.  Those sections address three
categories of such rights:  moral rights and rights to collect royalties
under a collecting society scheme, both of which are handled in 4.0d1 as
they are in v3.0; and ancillary rights, which are new in this first draft
of 4.0. [1]  Our intention as a matter of policy -- which we attempt to
make clear through use of the phrase "to the extent necessary ....to allow
You to exercise the rights granted You under this Public License" -- is for
the license to only affect the rights in those three categories that would
otherwise prevent a licensee from using a work, and for the licensor to
retain all others.  Those rights can be multi-faceted depending on
jurisdiction.  Moral rights may include one or more of the right of
attribution, the right of integrity and so forth.  Same for ancillary
rights, which might include catalogue rights in Nordic countries, rights in
scientific and critical editions in Italy, and on and on, again depending
on jurisdiction.  So depending on which of those rights might actually be
implicated, our intention as a matter of policy is to ensure that the
licensee gets the permission she needs to use the work as the license
intends without forcing the licensor agree to more than she needs to in
order to grant permission to use the work.

We think this is fair as a matter of policy both for licensees (whom we do
not want to put at risk vis-a-vis licensors because licensors may hold
still rights that could prevent use of the work as intended despite the
license) and for licensors (whom we do not think should be asked to give up
more rights than necessary for the work to be used as intended).  Feedback
on this policy choice is sought. There has already been some discussion on
the treatment of collection of royalties by performance rights organization
and moral rights on this mailing list.  E.g.,

http://lists.ibiblio.org/pipermail/cc-licenses/2012-April/006786.html,
thread on NC that evolved into discussion of performance rights
organizations, including our rationale for the current approach that
continues the policy established in 3.0 (
http://lists.ibiblio.org/pipermail/cc-licenses/2012-April/006853.html)

http://lists.ibiblio.org/pipermail/cc-licenses/2012-April/006863.html, one
of several threads discussing treatment of moral rights


Getting the language right is another matter.  If we can provide more
clarity in the legal code then by all means will do so.  We have no desire
or intention of being deceptive about how the license works, to the
contrary!

One possibility is to exclude the reference to rights retained in those two
sections altogether as unnecessary.  Other language already makes it clear
that the licensor is waiving (or agreeing not to assert) only those rights
necessary to allow the license to operate as intended.  See the lead in
language to both sections ("To the extent possible and necessary to allow
You to exercise....."), and Section 2(c) (reserving all rights of licensor
not otherwise specified).

Section 2(b)(1) might then read in relevant part (with strikethroughs
indicating deletions):

(1) To the extent possible and necessary to allow You to reasonably
exercise the rights granted to You under this Public License, Licensor
waives or, where not permissible, agrees not to assert:



(i) Licensor’s moral rights in the Licensed Work; *however*, Licensor
retains all other moral rights Licensor has in the Licensed Work; and

(ii) other ancillary rights Licensor has in the Licensed Work; *however*,
Licensor retains all other ancillary rights Licensor has in the Licensed
Work and, (for the avoidance of doubt, patent, trademark, privacy,
personality and publicity rights shall not be considered ancillary rights).

A similar edit would be made in Section 2(b)(2) (royalties and collecting
societies).

We chose on balance in 4.0d1 to include the extra language so there would
be no doubt that if not necessary (or possible) to waive, the licensor
retains those rights.  But from a strictly legal drafting perspective, that
language is very probably not necessary.  If it helps resolve ambiguity
while achieving the policy objective, then we ought consider making these
changes.  Of course, other suggestions (and input on the policy choice) are
very welcome.

Best,
Diane

[1]  Ancillary rights are new in 4.0, and we want to hear feedback on this
addition.  See http://creativecommons.org/weblog/entry/32157 for a brief
introduction to the challenge of these other copyright-like rights.


2012/4/20 Evtyushkin Alexander <alex.evtyushkin at iis.ru>

> Dear all,
> in some places of the new version there is a text like that:
>
> ----------------
> [Licensor waives or, where not permissible, agrees not to assert:]
>
> 2(b)(1)(ii) other ancillary rights Licensor has in the Licensed Work;
> however, Licensor retains all other ancillary rights Licensor has in the
> Licensed Work
> and, for the avoidance of doubt, patent, trademark, privacy, personality
> and publicity rights shall not be considered ancillary rights.
> -------
>
> This is really deceptive and ambiguous IMHO, as the statement says that:
> (1) Licensor waives "other ancilliary rights", and
> (2) Licensor retains "all other ancilliary rights".
>
> How can one make difference, where there are simply "other ancilliary
> rights", and where there are "all other ancilliary rights"?
>
> The same again goes in the following text:
> --------------------
> [From Section 2(b) Other Rights]:
> (1) To the extent possible and necessary to allow You to reasonably
> exercise the rights granted to You under this Public License, Licensor
> waives or, where not permissible, agrees not to assert:
> (i) Licensor’s moral rights in the Licensed Work; however, Licensor
> retains all other moral rights Licensor has in the Licensed Work...
> --------------------------
> There, again, one should make difference: whether there are Licensor's
> moral rights or Licensor's "other" moral rights...
>
> Maybe it should be corrected in some way or other, or further elaborated
> to avoid ambiguity.
>
> Sincerely,
> Alex Evtyushkin
> Institute of Information Society,
> the partner of Creative Commons in Russia
>
> _______________________________________________
> 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
>



-- 
Diane M. Peters, General Counsel
Creative Commons
cell: +1 503-803-8338
skype:  peterspdx
email:diane at creativecommons.org
http://creativecommons.org/staff#dianepeters

______________________________________

Please note: the contents of this email are not intended to be legal
advice nor should they be relied upon as, or represented to be legal
advice.  Creative Commons cannot and does not give legal advice. You
need to assess the suitability of Creative Commons tools for your
particular situation, which may include obtaining appropriate legal
advice from a licensed attorney.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ibiblio.org/pipermail/cc-licenses/attachments/20120420/4ae1fbfa/attachment-0001.html 


More information about the cc-licenses mailing list