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cc-licenses - Re: [cc-licenses] Moral rights in Creative Commons licenses

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Subject: Development of Creative Commons licenses

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  • From: Karl Ebener <myonlyb AT vollbio.de>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Moral rights in Creative Commons licenses
  • Date: Mon, 01 Oct 2007 07:23:13 +0200

Hi Javier,

According to what you write above, it will apply within Spain, whether
the license mentions it or not (it isn't legal to remove this right).

But if the clause is included in the CC license, then you enforce this
oddity of European law onto Americans as well. Normally we (in the US)
do not recognize the idea of "moral rights" in a work (which is part of
our general theory that copyright is not a 'natural' right, but rather a
state-granted monopoly on an otherwise free activity -- copying
information).

I like the USian view, and generally I have been against including any
reference to moral rights in the licenses. But I have changed my mind, and
now I think moral rights should be mentioned... in order to circumvent them.
of course, your idea to pseudo-waiver is nice, as it would make people think about their moral rights and most likely prevent many of authors to use them.
Still, I disagree. It is right, that lawyers take clauses into general terms and conditions of which they know that they are void. Nevertheless, in my personal opinion, willingly adding void clauses "weakens" a contract in general.
This "weakness" is a big problem of the GPL and I find it very consistent that the CC-licenses are not only translated but also adapted to national laws. This feature makes them much stronger (as well as seen by law as morally!) and thus more enforceable if a licensee does not comply with the terms of the license (e.g. in Germany once again Skype and GPL (just google it) - German courts were very generous with the GPL, especially regarding the language.).

Cheers,
Karl






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