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Subject: Development of Creative Commons licenses

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  • From: Andy Kaplan-Myrth <techlaw AT uottawa.ca>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: [cc-licenses] Version 3.01 moral rights question and proposal
  • Date: Thu, 18 Oct 2007 13:57:35 -0400

Hi all,

I'm one of the joint Project Leads in Canada, where our Copyright Act includes moral rights. We are working on versioning to 3.x. I just made the recommended 3.01 changes to our draft, and that process raised some questions.

First of all, here is the resulting paragraph in my draft -- very similar to how the unported draft 3.01 clause reads:

Except as otherwise agreed in writing by the Original Author, in
those jurisdictions in which the moral right of integrity exists and
by operation of local law constrains the freedom to adapt or collect
licensed Work, if You Reproduce, Distribute or Publicly Perform the
Work either by itself or as part of any Adaptations or Collective
Works, 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, or use the Work in
association with a product, service, cause or institution to the
prejudice of the Original Author's honour or reputation. Where
Licensor is the Original Author of the Work, Licensor agrees that
where the exercise of the right granted in Section 3(b) of this
Licence (the right to make Adaptations) could violate the moral right
of integrity of the Original Author, the Licensor will waive or not
assert, as appropriate, this Section, to the fullest extent permitted
by the applicable national law, as long as You do not distort,
mutilate, modify or take other derogatory action in relation to the
Work that would be prejudicial to the Original Author’s honour or
reputation, so as to enable You to reasonably exercise Your right
under Section 3(b) of this Licence but not otherwise.

There are two sentences. My reading of the first is that it restates moral rights that the original author already has (in those jurisdictions where they have them, that is) -- subject to any written agreement.

The second sentence says that where moral rights may be violated by the creation of adaptations, the original author/licensor agrees not to enforce "this Section", being the moral rights section of the CC licence just to allow non-moral-rights-infringing adaptations of the work.

So I guess I have two questions:

First, since the first sentence basically restates existing moral rights if any, could it be left out completely? What does it contribute? On my reading, it only contributes:
a. the qualification that the clause only applies in jurisdictions
with moral rights; and
b. the possibility of a written agreement outside the CC licence.

Second, what does the promise not to assert "this Section" mean in the absence of a new right? Is this second sentence actually intended to provide a promise on the part of the Original Author not to assert their moral right of integrity (so as to enable the licensor to reasonably exercise their right to make adaptations but not otherwise)?

I'm tempted to reduce the entire provision to something like this:

<proposal>
f. Except as otherwise agreed in writing by the Original Author, in those jurisdictions in which the moral right of integrity exists and by operation of local law constrains the freedom to adapt or collect licensed Work, where Licensor is the Original Author of the Work and where the exercise of the right granted in Section 3(b) of this Licence (the right to make Adaptations) could violate the Moral Right of integrity of the Original Author, Licensor agrees to waive or not assert, as appropriate, the Moral Right of integrity, to the fullest extent permitted by the applicable national law, as long as You do not distort, mutilate, modify or take other derogatory action in relation to the Work that would be prejudicial to the Original Author’s honour or reputation, so as to enable You to reasonably exercise Your right under Section 3(b) of this Licence but not otherwise.
</proposal>

Sorry to complicate the discussion with a new proposal!

Cheers,
Andy

--
Andy Kaplan-Myrth LL.B., M.A.
Manager, Law & Technology, University of Ottawa

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University of Ottawa : Université d'Ottawa
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t. 613/562-5800 x3206
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