Skip to Content.
Sympa Menu

cc-licenses - Re: [cc-licenses] Lawsuit over Virgin Mobile's and Ethical Use

cc-licenses AT lists.ibiblio.org

Subject: Development of Creative Commons licenses

List archive

Chronological Thread  
  • From: Jordan S Hatcher <jordan AT opencontentlawyer.com>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Lawsuit over Virgin Mobile's and Ethical Use
  • Date: Tue, 2 Oct 2007 18:00:20 +0100


On 2 Oct 2007, at 17:34, Terry Hancock wrote:

Jordan S Hatcher wrote:

You do have to realise though that there are many jurisdictions that
these rights cannot be waived, and that for more creative works (or
at least not databases) that authors might very well want and expect
these rights to be present.

Yes, and these rights will exist in those jurisdictions no matter what
I or CC think of them. My point is moot for people who live in such
jurisdictions.

However, lots of people *don't* -- for example, the 300 million people
in the USA. Even if two jurisdictions *are* "moral rights"
distributions, they may differ in detail about which rights are
retained and which aren't (or in how "derogatory treatment" is defined).

As I mentioned, the US *does have some moral rights for visual artists that is present in VARA. Other rights covered by derogatory treatment are covered to some degree in the US under unfair competition or trademark law.


So the approach has been to keep them.

So here's the deal. The license says the author retains "moral rights".

Within moral rights jurisdictions, this would be true with or without
the license statement. So the statement has no legal effect. So why is
it there?

This is incorrect. For example, the right to object to derogatory treatment or to be identified as the author of the work must be asserted in the United Kingdom.



What about in non-moral-rights jurisdictions?

HERE'S THE POINT>>>

Doesn't the fact that the license says that the author retains "moral
rights" mean that whatever rights they would retain by *statute* in
moral rights jurisdictions are kept by *license* in non-moral-rights
jurisdictions (at least to the extent permitted by law)?

What happens when I, as a US licensee, create a derivative of a work
released by a Spanish licensor? Say I do something which is perfectly
legal under US law, but which the licensor objects to? If that something
is covered by Spanish moral rights law *only*, it won't affect me. If it
is something that I am permitted by statute in the US to do, it likewise
won't affect me (parody protection).

But what if it is something that in the US can be withheld in a license,
but would not be by statute? The author could argue that his CC license
binds me to obey Spanish moral rights statutes here in the US, because
it is *also* covered by the CC license. (GOTCHA!!!)

IOW, the CC license would be invoking *Spanish* moral rights law by
reference to define a license term applying under *US* jurisdiction.

IMHO, that should never be allowed to happen.

So I'm asking -- *is* that what happens with the 3.0 wording? Or is
there some trick that I'm missing?

See 8f.
http://creativecommons.org/licenses/by/3.0/legalcode


~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
http://www.opencontentlawyer.com/open-data/

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007






Archive powered by MHonArc 2.6.24.

Top of Page