[cc-licenses] Moral rights, Attribution & Choice of Law

Kent Mewhort kmewhort at cippic.ca
Wed Apr 11 17:08:39 EDT 2012


IMO, the overall direction of this license looks to be shaping up
nicely.  A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
exercise...".

Attribution
------------

3. The scope of "any reasonable manner" seems a bit too broad,
especially given the importance and multi-faceted purpose of
attribution. I liked the old "at least as prominent as" provision,
though I can see how this can cause problems in some contexts.  How
about "any reasonably prominent manner", or even "a reasonable manner
consistent with, to the extent feasible, any customary attribution for
the medium or means You are using".

New definition of to "Share"
-----------------------------

4. If we end up with no ports, this definition may not be sufficient to
equally cover the intended activities in all jurisdictions. For example,
in Canada, we have no "making available" right as of yet and the right
to "communicate to the public" by telecommunication arguably doesn't
cover one-to-one downloads through services such as iTunes (an issue
which is presently before our Supreme Court).  It might be advisable to
insert an "or distribute" in there.


Choice of Law
--------------

5. There hasn't been much discussion on this, but I think deserves
careful consideration in light of the move towards
internationalization.  Given the different laws on fair dealing,
copyright terms, and other aspects of copyright law, it creates a lot of
uncertainty to simply leave choice of law to local conflict of law
rules.  I think something analogous to the U.K. government license could
work well to tighten up certainty: "This licence is governed by the laws
of the jurisdiction in which the Information Provider has its principal
place of business, unless otherwise specified by the Information Provider. "

Alright, that's all for now :)!

Kent


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