[cc-licenses] Distortion and mutilation: what is permitted should be clearer

Francesco Poli invernomuto at paranoici.org
Sun Jan 15 16:48:53 EST 2012

another clause that needs to be clarified or improved in CC-v4.0
licenses is the following one, found in CC-by-v3.0 (a nearly identical
one is found in CC-by-sa-v3.0 and in other CC-v3.0 licenses):

|  c. Except as otherwise agreed in writing by the Licensor or as may
|     be otherwise permitted by applicable law, if You Reproduce,
|     Distribute or Publicly Perform the Work either by itself or as
|     part of any Adaptations or Collections, 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
|     honor or reputation. Licensor agrees that in those jurisdictions
|     (e.g. Japan), in which any exercise of the right granted in
|     Section 3(b) of this License (the right to make Adaptations)
|     would be deemed to be a distortion, mutilation, modification or
|     other derogatory action prejudicial to the Original Author's
|     honor and reputation, the Licensor will waive or not assert, as
|     appropriate, this Section, to the fullest extent permitted by the
|     applicable national law, to enable You to reasonably exercise
|     Your right under Section 3(b) of this License (right to make
|     Adaptations) but not otherwise.

I cannot understand the effect of this section: it seems to enforce
moral rights through economic rights (because it restates moral rights
in a copyright license), which sounds awkward anyway.

But it seems to carefully avoid extending or strengthening moral rights
in jurisdictions where they are weak or almost absent, since it says
"Except [...] as may be otherwise permitted by applicable law [...] You
must not distort [...]".

Consequently: if it's a no-op, why has it been included in the license?
If it has some effect, I cannot see which (apart from a possible
chilling effect on people willing to create adaptations in order to
criticize the original work or author, which is not good at all...).

If its sole purpose is to prevent excessively strong moral rights (as
the Japanese ones, it seems) from forbidding any kind of modification
allowed by the license, then I think the clause should be rephrased in
order to more explicitly and clearly achieve its purpose, without
confusing the reader (and thus creating legal uncertainty about the
actual effect of the clause).

I hope this suggestion may help in improving CC-v4.0 licenses.

 New GnuPG key, see the transition document!
..................................................... Francesco Poli .
 GnuPG key fpr == CA01 1147 9CD2 EFDF FB82  3925 3E1C 27E1 1F69 BFFE
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