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  • From: Brian Fitzgerald <bf.fitzgerald AT qut.edu.au>
  • To: cc-au AT lists.ibiblio.org
  • Subject: [Cc-au] Moral Rights - Ian Oi
  • Date: Mon, 29 Mar 2004 09:59:06 +1000

I am sending this on behalf of Ian Oi

"ISSUE: Since 2001, Australia has formally recognised that authors have moral rights in copyright material created by them. The recognised moral rights comprise the right to be attributed with authorship of a work (the attribution right); the right to prevent false attribution of a work (the right against false attribution); and the right to prevent derogatory treatment of a work (the integrity right). By contrast, US law does not expressly recognise these rights per se.

The Creative Commons US licences expressly provide options that effectively enable the licensor to either assert the attribution right and to disavow the attribution right. This mechanism also largely deals with the right against false attribution.

However, the Creative Commons US licences do not however expressly deal with the integrity right. How therefore should the Creative Commons Australia licences deal with the integrity right?

DISCUSSION: The notes to the Australian Version 0-2 of the Creative Commons Attribution-NonCommercial-ShareAlike licence refers to three ways in which the integrity right can be treated in the Creative Commons licences: (1) Silence; (2) Express Assertion of the Integrity Right; and (3) Express Disavowal of the Integrity Right.

For initial drafting purposes, the provisional position of Option (2) - express assertion - was adopted. The reasons for this are set out in the notes. However, alternative drafting to give effect to Option (3) - express disavowal - was also provided.

The provisional position adopted for initial drafting purposes was admittedly a pragmatic one, rather than one based on principle (see the notes to Australian Version 0-2 for more). As such, it is not particularly satisfying. This therefore raises the issue of whether a principled, but practical, reconciliation of the Creative Commons philosophy with Australian integrity rights law can be achieved.

One possible (and probably the most obvious) way of reconciling the Creative Commons philosophy/approach with the integrity right is to place consideration of the integrity right within the context of how the Creative Commons US licences treat derivative works. The US Copyright legislation (17 U.S.C. s.106(2)) expressly grants to copyright owners the exclusive right to "prepare derivative works based upon the copyrighted work".

By comparison, under Australian law, copyright owners are not granted the same broad-based exclusive right to prepare derivative works, and are instead granted a much more limited right (for some but not all copyright subject matter) to make (a limited set of) adaptations. Nonetheless, authors under Australian law enjoy integrity right protection that is strongly analogous to the derivative work rights of copyright owners in its practical effect. In each case, the rights holder can potential prevent a broad, largely unbounded and uncertain range of modifications from being distributed.

The Creative Commons US licences treat the derivative work right by giving the licensor 3 options:


(a) to permit distributions of modifications of the licensed work without any restriction; or

(b) to permit distributions of modifications of the licensed work without any restriction other than a Share-and-Sharealike restriction (ie, if you distribute a modification, you may do so "only under a licence identical to this one"); or

(c) to prohibit any distributions of modifications of the licensed work (though the unaltered original can still be freely distributed).

One analysis (Analysis One) is to say that where a licensor takes option (a) or (b) above (to permit distributions of modifications in some way), the licensor should accept not only the burden of ensuring that the licensor not only has all copyright permissions for the purposes ensuring that the exclusive right to prepare derivative works is not infringed, but should also accept the burden of ensuring that all moral rights consents have been obtained for the purposes of ensuring that the integrity right is not infringed. This would amount to an express disavowal of the integrity right.  On this reasoning, a licensor who chooses to expressly affirm the integrity right should adopt option (c): that is, prohibit any distribution of modifications.

The problem with Analysis One is that it leaves no middle ground for the thoughtful licensor, between prohibiting all distributions of modifications and permitting all distributions of modifications. One can imagine plenty of situations where the thoughtful licensor wishes to permit distributions of modifications as long as they do not amount to a derogatory treatment of the author. By merging the (economic) derivative work right and the (moral) integrity right, I cannot but feel that Analysis One takes too much away from authors.

This is where a conflict of principles becomes apparent. A person who wholeheartedly adopts US First Amendment principles could arge that the thoughtful licensor should be permitted no middle ground: if you choose to permit modifications at all (by waiving your enforcement of the derivative works right), you should have no right to reserve the right to say that distribution of some modifications is OK and distribution of others is not.  Indeed, a Freedom of Speech purist could argue that Creative Commons should not be give licensors any right to prohibit any distribution of modifications.

On the other hand, even US First Amendment analysis permits that such constitutional Freedoms of Speech are not absolute, and are to be balanced against other rights and interests; the issue of what rights/interests and the balancing test (and level of scrutiny) to be adopted is often the real matter of controversy, not the fact that there are other rights/interests that can, in proper circumstances, constrain Freedoms of Speech. It so happens that American law does not expressly recognise that one of those rights/interests is the moral rights of the author.

Speaking for myself only, I am not greatly troubled by the apparent conflict of principles insofar as the licensor might be the same person as the author. In this case, merging the Derivative Works rights analysis with the Integrity rights analysis can be rationalised in that the interests of the author and licensor are also merged in the same person, so that a wholistic assessment of whether option (a)/(b) versus option (c) can be taken by that one person. In this case, the "all or nothing" option seems to me does not seem unprincipled or impractical.  I do however see issues when the licensor seeks to licence material that includes copyright material that is wholly or partly sourced from another author. In this situation, the merger of analysis would not necessarily coincide with the interests of licensor/author: the licensor is not necessarily interested in protecting the author from derogatory treatment, and Creative Commons would arguably be doing the public commons a disservice if it encouraged licensors to treat authors cavalierly (since this potentially discourages them from permitting their work to be contributed to it).

This leads me to wonder whether Creative Commons could develop a further level of "modification licensing" that gives a further level of choice. One way to formulate such a further level of "modification licensing" could be this. Initially, the Creative Commons "Choose licence" page could ask whether the licensor is also the author of all the work (that is, is the work wholly original and created by the author?), and if so, it could keep things simple by leaving only the existing options (a), (b) and (c) open for the licensor to choose from. If the licensor is not also the author of all the work, a more sophisticated set of options could open up, that include the rights to allow modifications with or without the assertion of the integrity right. That is, the licensor would have the following options:

(a) to permit distributions of modifications of the licensed work without any restriction at all; or


(a1) to permit distributions of modifications of the licensed work without any restriction other than subject to preservation of the integrity right; or

(b) to permit distributions of modifications of the licensed work without any restriction other than a Share-and-Sharealike restriction (ie, if you distribute a modification, you may do so "only under a licence identical to this one"); or

(b1) to permit distributions of modifications of the licensed work without any restriction other than subject to preservation of the integrity right and a Share-and-Sharealike restriction; or

(c) to prohibit any distributions of modifications of the licensed work (though the unaltered original can still be freely distributed).

What do others think:


* Is the above discussion persuasive? Are there coherent alternatives?

* Are the options/analyses/solutions described above attractive? Are there viable alternatives?

* In the suggested further level of "modification licensing" above, is posing an initial question of whether the licensor is the author (and then restricting a licensor-author's choice) too restrictive? Are there other ways of practically structuring a wider range of "modification licensing"?"

Regards

Ian Oi



Professor Brian Fitzgerald
Head of School of Law
Queensland University of Technology

2 George Street
Brisbane Qld  4000
email: bf.fitzgerald AT qut.edu.au
ph:     61 7 38642710
CRICOS No: 00213J


  • [Cc-au] Moral Rights - Ian Oi, Brian Fitzgerald, 03/28/2004

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