[cc-licenses] Disclaimers for works of opinion as an incentive to free licensing

Christopher Covington cov at vt.edu
Wed May 2 08:08:05 EDT 2012


TL;DR: This seems to strike at freedom 0. NAK

On Tue, 2012-05-01 at 07:23 +0200, Gisle Hannemyr wrote:
> On 30.04.2012 19:28, Francesco Poli wrote:
> > On Mon, 30 Apr 2012 14:03:53 +0200 Gisle Hannemyr wrote:
> > 
> > [...]
> >> However, I think it is important that users of CC BY-SA has
> >> protection against their opinions being distorted.  The correct
> >> solution, in my opinion, is not to include a mandatory disclaimer,
> >> but to have the following clause in the license:
> >>
> >>    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.

I am not in favor of any such clause. How does one comply with this?
Full diligence would require research into the nature of the original
author(s) honor and reputation. This would require at the very least
finding a biography of the original author(s) and studying up on the
local customs to understand what actions there are considered honorable
and dishonorable, and what might enhance or detract from their
reputation. Even after meticulous research you're not necessarily going
to know what secret societies with peculiar codes of conduct they might
belong to.

With this clause you probably even open the door to lawsuits where the
original author tries to hold you liable for a slump in their fame. And
they could be right. It might often be the case that derivatives that
achieve good repute push the original work out of the spotlight to some
extent. I think this is good, and the CC licenses shouldn't punish this
sort of success.

You may object to my blurring of reputation and fame. The reason I've
done so is because I find "honor" and "reputation" to be very blurry
terms in the first place, although if they have exact legal definitions
in many jurisdictions, I'd be interested in reading up on that.

Furthermore I worry this chips away at freedom 0:

"The freedom to use and perform the work: The licensee must be allowed
to make any use, private or public, of the work. For kinds of works
where it is relevant, this freedom should include all derived uses
("related rights") such as performing or interpreting the work. There
must be no exception regarding, for example, political or religious
considerations."

http://freedomdefined.org/Definition

I, for one, will only ever use or support Creative Commons licenses that
are approved for free cultural works.

[...]

> First: Moral rights does not have a chilling effect.  People are free
> to make adaptations in order to criticize the original work or author
> - as long as they avoid being prejudicial to the Original Author's
> honour or reputation.

The effect of importing moral rights into countries that have not made
them part of their law might not be exactly chilling, but I'd be
surprised if it was both predictable and always positive.

> Second: To regard copyright law as only concerned with economic
> rights is (at least to me) a strange way of looking at copyright.
> Copyright is about both *economic* and *moral* rights, and both
> has to be covered by an international public license, for the
> simple reason that this is how the majority of jurisdictions
> look at copyright.  (Some tells me that the USA is different,
> but to me, it looks as if moral rights is alive and well,
> even in the USA, re:
> http://www.rollingstone.com/music/news/jackson-browne-settles-with-gop-over-running-on-empty-ad-use-20090721
> )

My understanding of that case is that after the judge rejected the fair
use defense, the two parties settled with each other. The court did not
make any ruling upholding moral rights as such.

The requirement to obtain permission to use a work in the United States
is in my mind neither a strictly moral nor strictly economic right of
the author. Specifically, I don't think it qualifies as a moral right
all of the time because depending on the contract between the artist and
the publishing company, the artist may *not* have any say in who gets
permission and who doesn't. It could be that anybody who pays the rate
the publishing company sets gets a license.

It seems to me like the law is much more generic than economic or moral.
To color certain clauses as one or the other after the fact seems to me
to be more confusing that helpful.

Lastly, there are two discussions that have potential to be mixed up.
The first discussion is what rights go on the Creative Commons deed.
Here I think it's important to consider all the players, including the
original author, authors of derivative works, and users/consumers, with
individuals, corporations, non-profits, and government organizations in
each role, and considering the social, economic (and if you must
consider it separately from the social consequences, moral) implications
of various possible interactions. The second discussion is how to
enforce the rights on the deed. Just because it may be beneficial to
leverage sui generis moral rights to enforce what's on the deed doesn't
mean those rights belong on the deed.

Regards,
Chris



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