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

Diane Peters diane at creativecommons.org
Fri Apr 13 16:23:18 EDT 2012

See inline, below.  Thanks for your comments, Kent.

On Wed, Apr 11, 2012 at 2:08 PM, Kent Mewhort <kmewhort at cippic.ca> wrote:

> IMO, the overall direction of this license looks to be shaping up
> nicely.

Good to hear!  Keep the constructive feedback coming.

> 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.

Interesting point.  I’d like to know if this is the case where moral rights
are thought to be the strongest, such as France.  Again, “reasonably
exercise” is where we left at least that part of the discussion in 3.01 (
http://creativecommons.org/weblog/entry/7718).  But we did think about it
and kept the modifier because it seems/ed reasonable (no pun intended) to
include it to reduce risk of unenforceability of the provision in places
where unqualified, blanket grants may be frowned upon.  That said, if the
element is indeed baked into the notion of moral rights already, removal
may be appropriate at least on that ground.  We’d be interested in hearing
others thoughts on this.

> 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).

Leaving them intact/reserved (and hence exercisable by the licensor in her
discretion to prevent certain reuses that licensees expect given other
license permissions) leaves us exposed to the criticism that we are
overreaching, and licensees exposed unnecessarily and possibly unfairly for
exercising the very rights they think they’re able to exercise.  If fully
reserved, the very reuse expected by licensors could be impeded given the
resulting uncertainty.  It is interesting to note that in several of the
jurisdictions with ported 3.0 licenses, the approach of a general waiver
has already been adopted (see blog post announcing draft:
http://creativecommons.org/weblog/entry/32157).  So while moral rights in
3.0 unported are reserved, it's already that case in a fair number of ports
that the rights are waived where possible.

> 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".

To be clear, the waiver of moral rights (when/if even permitted by law) in
4.0d1 coincides and aligns with the economic rights granted.  No more, no
less, except where the rights cannot be waived (or not asserted) at all, in
which case less.

Some other licenses require blanket waivers, even (possibly) some of our
3.0 ports (see the blog post link, above).  It may be true that a blank
waiver is simplest for purposes of the license, but whether a blanket
waiver is widely enforceable and whether it is necessary to give the
licensee what s/he needs to use the work as permitted is another matter.   In
short, we have been hard pressed to find a reason to require waiver of
moral rights beyond those necessary to exercise the permissions granted by
the license.   But we’re eager to hear if we’re missing something on either
of these points, or should be thinking about these in another way.

> 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...".

Thanks for the suggestion, we’ll take a look at that for d2.

> 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".

On this, recognize that the original purpose of the “at least as prominent”
in 3.0 is to ensure that all contributors received “equal” billing, though
as some have pointed out that's not always fair if some contributions are
more significant than others.  As you’re suggesting it be revised, it seems
less about equality and more about prominence of attribution generally,
which feels different. Is that difference intended?

We’ll go ahead and add this specific proposal on the 4.0 attribution page
on the wiki, and hope others will weigh in on the advisability of the

> 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.
> You comment provides a great opportunity to clarify an important dimension
of the license.  Section 2, not the definition of Share, contains the grant
of rights to licensees, covering actions otherwise reserved to the
Licensor, including distribution rights. “Share” on the other hand is the
event that triggers the the license conditions.  Said differently, only if
the licensee both exercises the rights granted in Section 2 *and* shares
the Licensed Work (or an Adaptation in licenses allowing their creation)
does the licensee have to comply with the license conditions in Section 3.
For those familiar with GPLv3, you can think of “Share” as the rough
equivalent of “convey” in this regard.

With that in mind, since Section 2 expressly grants the right to
“distribute” the Licensed Work, is your concern addressed?

> 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.
> "
> We are framing this issue for public discussion shortly.  Look for that
prompt shortly.

> Alright, that's all for now :)!
> Kent
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Diane M. Peters, General Counsel
Creative Commons
cell: +1 503-803-8338
skype:  peterspdx
email:diane at creativecommons.org


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