[cc-licenses] Who are "Original Authors"? (comment on 3.0 Generic)

wiki_tomos at inter7.jp wiki_tomos at inter7.jp
Sun Aug 13 14:41:37 EDT 2006


Peter -  

Thank you for the comments. It was quite rewarding to read your 
thoughts on this matter (and learn from them). 

Perhaps the right question is not whose reputation a licensee 
has to care, but whose reputation is tied to license (or its 
termination). 

License termination based on dishonoring occurs only when the 
license explicity prohibits derogatory treatment, dishonoring, etc. 
When there is no explicit language, it is still not permitted, 
but not a ground for termination. 

(Dishonoring is not permitted because a CC license typically 
says "All rights not expressly granted by Licensor are 
hereby reserved." (see the end of section 3, BY 2.5 Generic, 
BY-NC-SA 3.0 Generic, for examples). But violation of 
those rights not expressly granted does not seem to cause 
license termination.) 

When the license is terminated, use of the Work licensee made 
is quite possibly a copyright infringement - not just that of moral rights, but right to adapt, distribute, etc. In contrast, if a 
licensee still is a licensee after defaming an Original Author, 
that is a violation of a moral right (or its equivalent), 
but not more. The former is a bigger liability than the latter. 
So while in many many jurisdictions it may be necessary 
not to dishonor Original Authors, it may need even more careful 
treatment when license says that dishonoring terminates the license. 




By the way, the moral rights in Japan is not quite simply inalienable. 
Some scholars argue that authors can promise not to exercise his 
moral rights in a license, effectively releasing the licensee from 
protection of the author's inalienable right. The author still 
retains the full moral rights, but he simply does not exercise 
the rights. Some scholars argue such promise is legally valid 
and effective. And if the author changes his mind and seek to 
stop a licensee from distributing a changed work of the author, 
the court may be able to reject it. I think we are yet to see 
such a lawsuit, but making that kind of promise as a part of 
contract/license is somewhat widely practiced in some industries 
in Japan. 

Japanese copyright law defines right to integrity more broadly than 
Berne Convention does, and a wide range of transformation or 
modification of a work could constitute an infringement of the 
right. So perhaps it is somewhat socially necessary to have a 
workaround. 

I wonder if there is an equivalent to this in other jurisdictions. 


Best, 


Tomos



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