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  • From: Evtyushkin Alexander <alex.evtyushkin AT iis.ru>
  • To: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Possible ambiguity in the v.4
  • Date: Fri, 20 Apr 2012 19:43:27 +0400

Diane,
1. I strongly support the intentions that you mention in the first part of
your post;
2. I only wish to disambiguate the wording.
I'd suggest that the clauses may read something like that:
-------------
> Section 2(b)(1) might then read in relevant part (with strikethroughs
> indicating deletions):
>
> (1) To the extent possible and necessary to allow You to reasonably
> exercise the rights granted to You under this Public License, Licensor
> waives or, where not permissible, agrees not to assert:
>
> (i) Licensor’s moral rights in the Licensed Work; however, Licensor retains
> all moral rights Licensor has in the Licensed Work EXCEPT THOSE EXPLICITLY
> STATED IN THE LICENCING STATEMENT; and
>
> (ii) other ancillary rights Licensor has in the Licensed Work; however,
> Licensor retains all other ancillary rights Licensor has in the Licensed
> WorkEXCEPT THOSE EXPLICITLY STATED IN THE LICENCING STATEMENT and, (for the
> avoidance of doubt, patent, trademark, privacy, personality and publicity
> rights shall not be considered ancillary rights).
-------------------
Sincerly,
Alex Evtyushkin,
Institute of Information Society,
the partner of Creative Commons in Russia

20.04.2012, в 17:56, Diane Peters написал(а):

> The language you point to is important to get right, so if we need to
> tighten or explain it further to avoid ambiguity we welcome suggestions.
> One alternative is proposed below, but first we should be clear on the
> policy choice we're trying to implement in the legal code.
>
> There are only two places in 4.0d1 where we used that language -- Section
> 2(b)(1) and Section 2(b)(2). These sections deal with rights other than
> copyright and neighboring rights that could restrict the licensee's ability
> to use the work as otherwise expected. Those sections address three
> categories of such rights: moral rights and rights to collect royalties
> under a collecting society scheme, both of which are handled in 4.0d1 as
> they are in v3.0; and ancillary rights, which are new in this first draft
> of 4.0. [1] Our intention as a matter of policy -- which we attempt to
> make clear through use of the phrase "to the extent necessary ....to allow
> You to exercise the rights granted You under this Public License" -- is for
> the license to only affect the rights in those three categories that would
> otherwise prevent a licensee from using a work, and for the licensor to
> retain all others. Those rights can be multi-faceted depending on
> jurisdiction. Moral rights may include one or more of the right of
> attribution, the right of integrity and so forth. Same for ancillary
> rights, which might include catalogue rights in Nordic countries, rights in
> scientific and critical editions in Italy, and on and on, again depending
> on jurisdiction. So depending on which of those rights might actually be
> implicated, our intention as a matter of policy is to ensure that the
> licensee gets the permission she needs to use the work as the license
> intends without forcing the licensor agree to more than she needs to in
> order to grant permission to use the work.
>
> We think this is fair as a matter of policy both for licensees (whom we do
> not want to put at risk vis-a-vis licensors because licensors may hold
> still rights that could prevent use of the work as intended despite the
> license) and for licensors (whom we do not think should be asked to give up
> more rights than necessary for the work to be used as intended). Feedback
> on this policy choice is sought. There has already been some discussion on
> the treatment of collection of royalties by performance rights organization
> and moral rights on this mailing list. E.g.,
>
> https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006786.html,
> thread on NC that evolved into discussion of performance rights
> organizations, including our rationale for the current approach that
> continues the policy established in 3.0
> (https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006853.html)
>
> https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006863.html, one
> of several threads discussing treatment of moral rights
>
> Getting the language right is another matter. If we can provide more
> clarity in the legal code then by all means will do so. We have no desire
> or intention of being deceptive about how the license works, to the
> contrary!
>
> One possibility is to exclude the reference to rights retained in those two
> sections altogether as unnecessary. Other language already makes it clear
> that the licensor is waiving (or agreeing not to assert) only those rights
> necessary to allow the license to operate as intended. See the lead in
> language to both sections ("To the extent possible and necessary to allow
> You to exercise....."), and Section 2(c) (reserving all rights of licensor
> not otherwise specified).
>
> Section 2(b)(1) might then read in relevant part (with strikethroughs
> indicating deletions):
>
> (1) To the extent possible and necessary to allow You to reasonably
> exercise the rights granted to You under this Public License, Licensor
> waives or, where not permissible, agrees not to assert:
>
> (i) Licensor’s moral rights in the Licensed Work; however, Licensor retains
> all other moral rights Licensor has in the Licensed Work; and
>
> (ii) other ancillary rights Licensor has in the Licensed Work; however,
> Licensor retains all other ancillary rights Licensor has in the Licensed
> Work and, (for the avoidance of doubt, patent, trademark, privacy,
> personality and publicity rights shall not be considered ancillary rights).
>
>
> A similar edit would be made in Section 2(b)(2) (royalties and collecting
> societies).
>
> We chose on balance in 4.0d1 to include the extra language so there would
> be no doubt that if not necessary (or possible) to waive, the licensor
> retains those rights. But from a strictly legal drafting perspective, that
> language is very probably not necessary. If it helps resolve ambiguity
> while achieving the policy objective, then we ought consider making these
> changes. Of course, other suggestions (and input on the policy choice) are
> very welcome.
>
> Best,
> Diane
>
> [1] Ancillary rights are new in 4.0, and we want to hear feedback on this
> addition. See http://creativecommons.org/weblog/entry/32157 for a brief
> introduction to the challenge of these other copyright-like rights.
>
>
> 2012/4/20 Evtyushkin Alexander <alex.evtyushkin AT iis.ru>
> Dear all,
> in some places of the new version there is a text like that:
>
> ----------------
> [Licensor waives or, where not permissible, agrees not to assert:]
>
> 2(b)(1)(ii) other ancillary rights Licensor has in the Licensed Work;
> however, Licensor retains all other ancillary rights Licensor has in the
> Licensed Work
> and, for the avoidance of doubt, patent, trademark, privacy, personality
> and publicity rights shall not be considered ancillary rights.
> -------
>
> This is really deceptive and ambiguous IMHO, as the statement says that:
> (1) Licensor waives "other ancilliary rights", and
> (2) Licensor retains "all other ancilliary rights".
>
> How can one make difference, where there are simply "other ancilliary
> rights", and where there are "all other ancilliary rights"?
>
> The same again goes in the following text:
> --------------------
> [From Section 2(b) Other Rights]:
> (1) To the extent possible and necessary to allow You to reasonably
> exercise the rights granted to You under this Public License, Licensor
> waives or, where not permissible, agrees not to assert:
> (i) Licensor’s moral rights in the Licensed Work; however, Licensor retains
> all other moral rights Licensor has in the Licensed Work...
> --------------------------
> There, again, one should make difference: whether there are Licensor's
> moral rights or Licensor's "other" moral rights...
>
> Maybe it should be corrected in some way or other, or further elaborated to
> avoid ambiguity.
>
> Sincerely,
> Alex Evtyushkin
> Institute of Information Society,
> the partner of Creative Commons in Russia
>
> _______________________________________________
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>
>
>
> --
> Diane M. Peters, General Counsel
> Creative Commons
> cell: +1 503-803-8338
> skype: peterspdx
> email:diane AT creativecommons.org
> http://creativecommons.org/staff#dianepeters
>
> ______________________________________
>
> Please note: the contents of this email are not intended to be legal
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> advice from a licensed attorney.
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