[Cc-ca] Response to Russell McOrmond

Marcus Bornfreund marcus at uottawa.ca
Thu Jul 15 21:28:18 EDT 2004

I would like to thank Russell for focusing on an important point and 
for providing us with a user's perspective on CC licences. Russell is 
correct in noting that the inclusion of an Original Author's moral 
rights introduces legal uncertainty into a licensee's reliance on the 
iCommons Canada licence.

In Canada we have chosen to invest creators with moral rights over 
their work. These rights are set out in the draft licence as (in the 
absence of an agreement to the contrary):

i.  You must not falsely attribute the Work to someone other than the 
Original Author;
ii.  You must not do anything that results in a material distortion, or 
mutilation of the Work that is prejudicial to the Original Author's 
honour or reputation;
iii.  You must not associate the Work with a product, service, cause or 
institution that is prejudicial to the Original Author's honour or 
reputation; and
iv.  If applicable, You must respect the Original Author's wish to 
remain anonymous.

Because the existence of these important rights is often unknown to 
Canadian creators, we have decided to err on the side of caution by 
building their protection into the iCommons Canada licence as a 
default. This way no creator will be deprived of their moral rights as 
a result of lack of prior knowledge. Admittedly, however, no user will 
ever enjoy absolute legal certainty without an accompanying waiver of 
moral rights. Russell would have us believe that where there is an 
absence of absolute certainty there is in fact no certainty at all. 
This is not true; reasonable use, ie. use not so unreasonable that it 
would offend a creator's moral rights is protected by law.

Canadian law is build on a standard of reasonableness. Reasonableness 
in applying the law and reasonableness in punishing infractions. What 
Russell is missing in his critical analysis is that: (1) the retention 
of moral rights does not preclude reasonable use of the work, in the 
absence of a moral rights waiver, provided that a licence to use the 
work has been granted by the creator or a statutory exemption is 
enjoyed by the user; and (2) regardless of whether moral rights are 
retained in the licence, the creator is still required to demonstrate 
an infringement on a standard of reasonableness before a court of law.

Reasonableness is an argument which attempts to achieve balance. A 
licensee who is making reasonable use of a creator's work is protected 
in their use as much as the creator is protected against having the 
work misused. Because of this, some uncertainty is an unavoidable 
by-product of 'porting' the licence into the Canadian copyright regime, 
regardless of which approach we take to moral rights.

Shelia Cossey made a valuable contribution to the discussion by earlier 
raising this same point and suggesting that we develop a moral rights 
waiver template to service situations in which Canadian creators desire 
to waive their moral rights. Resource-permitting, we have already 
agreed that this is a worthwhile undertaking. Since all participant 
countries share the main CC licence generator, which does not presently 
provide for the ability to waive or retain moral rights, developing an 
accompanying waiver is the most balanced solution at hand. As a 
participant in this CC-run initiative we are working within both 
organization and infrastructure constraints.

I could go even further than Russell in pointing out some of the ways 
to better the CC licence itself but this is not the time for that. It 
is the goal of this exercise to produce a working draft within the next 
several weeks. In order to do so there are many other important issues 
to be examined and decided upon. CIPPIC Summer Fellow Ian M. Kerr has 
recently made some important posting to this discussion list. I am 
hoping that list members can help us move forward through the remaining 
issues as we try to conclude the review of the iCommons Canada draft 
licence 2.0 by the end of JUL 04. I am happy to continue to discuss the 
moral rights issue off-list with anyone who is interested.

Thanks to everyone, especially Russell, for their participation. It is 
greatly appreciated.


Marcus Bornfreund
Manager / Part-time Professor:
Law & Technology Program  <http://www.commonlaw.uottawa.ca/tech/>
Faculty of Law : Faculté de droit
Common Law Section : Section Common Law
University of Ottawa : Université d'Ottawa
57 Louis Pasteur Street
Ottawa, ON CANADA K1N 6N5
t.  613/562-5800 x3299
f.  613/562-5124
e.  marcus at uottawa.ca
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