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cc-licenses - Re: [cc-licenses] by-nc-sa draft and GPL compatibility of by-sa

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Subject: Development of Creative Commons licenses

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  • From: Gisle Hannemyr <gisle AT ifi.uio.no>
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: Re: [cc-licenses] by-nc-sa draft and GPL compatibility of by-sa
  • Date: Sun, 17 Jun 2012 15:30:52 +0200

On 08.06.2012 19:52, Arne Babenhauserheide wrote:
> Are there any parts in the current draft of by-nc-sa which would
> hinder one-way GPL compatibility of by-sa when the nc-clauses get
> removed?

Moral rights is an obvious area of non-compatibility.

GPL v3.0 does not mention how to handle moral rights. This means that
any conflicts about moral rights for a work licensed under GPL must
be handled outside of the license. Since (almost?) all CC jurisdictions
are Berne signatories, this means that the the article 6bis from
the Berne convention applies to GPL-licensed works in almost all
CC jurisdictions, i.e.:

"Independently of the author's economic rights, and even after
the transfer of the said rights, the author shall have the right
to claim authorship of the work and to object to any distortion,
mutilation or other modification of, or other derogatory action
in relation to, the said work, which would be prejudicial to his
honor or reputation."

On the other hand, CC v4.0d1 contains the following waiver:

"Licensor waives or, where not permissible, agrees not to assert
[...] Licensor’s moral rights in the Licensed Work."

I.e. relicensing a work under GPL v3.0 will oblige the licensees
to observe moral rights that are waived under CC v4.0d1.

Solution: Reinstate conformance with the Berne Treaty article 6bis
in the CC license (e.g. as in CC BY-SA v3.0 4(d)) to make
treatment of moral rights equal to that of GPL v3.0.

Alternate solution: Do like the GPL 3.0, and delete all references
and waivers of moral rights from the license. This will make
treatment of moral rights independent of the license (i.e. handled
by background legislation, such as the Berne Treaty).

I would prefer the first solution, because that tells licensees
in very clear terms that they are obliged to respect moral rights.
However, I've noticed that a lot of people in the Free Software
community believes that moral rights cease to exist if you don't
mention them. This probably means that the alternative solution
may be easier to get accepted - at least by those people.
--
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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