[cc-licenses] Version 3.01 moral rights question and proposal

paola.dimaio at gmail.com paola.dimaio at gmail.com
Thu Oct 18 23:11:42 EDT 2007


Hi Melanie

> The french FAQ simply recalls that any claim on moral rights would be solved
> by the judge.
>
When I asked what advantages does cc have over any other copyright
license, I was answered that it avoids the author having to pay
expensive lawyers fees to draft licenses. I think in your sentence
above you imply that we have to go to court to assert a basic
statutory right. It does not sound right Judges and barristers are
much more expensive than lawyers :-).

>
> For the avoidance of doubt:
> i. In those countries which do not have moral rights, nothing happens.
> ii. In those countries where moral rights cannot be waived, nothing happens.
> iii. In those countries which have waivable moral rights or where it is
> possible to not assert them, the licensor waives or does not assert them
>
I think the above is fine in principle. except that 'have moral
rights' 'nothing happens' need to be defined with more precisions
(using appropriate legal terminology )
in those countries where the copyright law does not include explicit
and statutory provisions for ....moral rights... specifically blabla
etcetera

However,  the Berne Convention, is universal rule in international
copyright law, which means irrespective of whether moral rights or not
are contemplated by local legistlation,  when it comes to
international copyright (when the work is used in another country)
moral rights exist, and cannot be waved. But a license can simply
state that author grants specific permission so and so,(to manipulate,
change and otherwise modify and transform the work) moral rights
notwistanding.

Somehow I see lawyer getting more business  cc notwithstanding

cheers
PDM


> (and maybe as Ignasi suggested, lucky i and ii countries could thus stick
> with 3.0 number as the clause has anyway to be rewritten for each national
> jurisdiction ;-)
>
> thanks,
> melanie
>
>
> Le 18 oct. 07 à 13:57, Andy Kaplan-Myrth a écrit :
>
>
> 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
>
> ------------------------------------------------
> Faculty of Law : Faculté de droit
> University of Ottawa : Université d'Ottawa
> 57 Louis Pasteur Street
> Ottawa, ON  K1N 6N5
> Canada
>
> t. 613/562-5800 x3206
> f. 613/562-5124
> e. techlaw at uottawa.ca
> w: http://www.commonlaw.uottawa.ca/tech
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-- 
Paola Di Maio
School of IT
www.mfu.ac.th
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