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

melanie dulong de rosnay melanie.dulong-de-rosnay at cersa.org
Fri Oct 19 11:36:47 EDT 2007


Le 18 oct. 07 à 23:11, paola.dimaio at gmail.com a écrit :

> 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 :-).

you can solve a conflict through negotiation, or at court

>
>>
>> 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 )

of course, this was not intended to be legal phrasing!!

> 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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