Cc-au mailing list

[Brian Fitzgerald <bf.fitzgerald AT qut.edu.au>]

I am sending this on behalf of Ian Oi

"ISSUE: Since 2001, Australia has formally recognised
that authors have moral rights in copyright material created by them. The
recognised moral rights comprise the right to be attributed with
authorship of a work (the attribution right); the right to prevent false
attribution of a work (the right against false attribution); and the
right to prevent derogatory treatment of a work (the integrity right). By
contrast, US law does not expressly recognise these rights per
se.

The Creative Commons US licences expressly provide options that
effectively enable the licensor to either assert the attribution right
and to disavow the attribution right. This mechanism also largely deals
with the right against false attribution.

However, the Creative Commons US licences do not however expressly deal
with the integrity right. How therefore should the Creative Commons
Australia licences deal with the integrity right?

DISCUSSION: The notes to the Australian Version 0-2 of the Creative
Commons Attribution-NonCommercial-ShareAlike licence refers to three ways
in which the integrity right can be treated in the Creative Commons
licences: (1) Silence; (2) Express Assertion of the Integrity Right; and
(3) Express Disavowal of the Integrity Right.

For initial drafting purposes, the provisional position of Option (2) -
express assertion - was adopted. The reasons for this are set out in the
notes. However, alternative drafting to give effect to Option (3) -
express disavowal - was also provided.

The provisional position adopted for initial drafting purposes was
admittedly a pragmatic one, rather than one based on principle (see the
notes to Australian Version 0-2 for more). As such, it is not
particularly satisfying. This therefore raises the issue of whether a
principled, but practical, reconciliation of the Creative Commons
philosophy with Australian integrity rights law can be 
achieved.

One possible (and probably the most obvious) way of reconciling the
Creative Commons philosophy/approach with the integrity right is to place
consideration of the integrity right within the context of how the
Creative Commons US licences treat derivative works. The US Copyright
legislation (17 U.S.C. s.106(2)) expressly grants to copyright owners the
exclusive right to "prepare derivative works based upon the
copyrighted work". 

By comparison, under Australian law, copyright owners are not granted the
same broad-based exclusive right to prepare derivative works, and are
instead granted a much more limited right (for some but not all copyright
subject matter) to make (a limited set of) adaptations. Nonetheless,
authors under Australian law enjoy integrity right protection that is
strongly analogous to the derivative work rights of copyright owners in
its practical effect. In each case, the rights holder can potential
prevent a broad, largely unbounded and uncertain range of modifications
from being distributed. 

The Creative Commons US licences treat the derivative work right by
giving the licensor 3 options: 

(a) to permit distributions of modifications of the licensed
work without any restriction; or 

(b) to permit distributions of modifications of the licensed
work without any restriction other than a Share-and-Sharealike
restriction (ie, if you distribute a modification, you may do so
"only under a licence identical to this one"); or

(c) to prohibit any distributions of modifications of the licensed work
(though the unaltered original can still be freely 
distributed).

One analysis (Analysis One) is to say that where a licensor takes option
(a) or (b) above (to permit distributions of modifications in some way),
the licensor should accept not only the burden of ensuring that the
licensor not only has all copyright permissions for the purposes ensuring
that the exclusive right to prepare derivative works is not infringed,
but should also accept the burden of ensuring that all moral rights
consents have been obtained for the purposes of ensuring that the
integrity right is not infringed. This would amount to an express
disavowal of the integrity right.  On this reasoning, a licensor who
chooses to expressly affirm the integrity right should adopt option (c):
that is, prohibit any distribution of modifications.

The problem with Analysis One is that it leaves no middle ground for the
thoughtful licensor, between prohibiting all distributions of
modifications and permitting all distributions of modifications. One can
imagine plenty of situations where the thoughtful licensor wishes to
permit distributions of modifications as long as they do not amount to a
derogatory treatment of the author. By merging the (economic) derivative
work right and the (moral) integrity right, I cannot but feel that
Analysis One takes too much away from authors.

This is where a conflict of principles becomes apparent. A person who
wholeheartedly adopts US First Amendment principles could arge that the
thoughtful licensor should be permitted no middle ground: if you choose
to permit modifications at all (by waiving your enforcement of the
derivative works right), you should have no right to reserve the right to
say that distribution of some modifications is OK and distribution of
others is not.  Indeed, a Freedom of Speech purist could argue that
Creative Commons should not be give licensors any right to prohibit any
distribution of modifications. 

On the other hand, even US First Amendment analysis permits that such
constitutional Freedoms of Speech are not absolute, and are to be
balanced against other rights and interests; the issue of what
rights/interests and the balancing test (and level of scrutiny) to be
adopted is often the real matter of controversy, not the fact that there
are other rights/interests that can, in proper circumstances, constrain
Freedoms of Speech. It so happens that American law does not expressly
recognise that one of those rights/interests is the moral rights of the
author.

Speaking for myself only, I am not greatly troubled by the apparent
conflict of principles insofar as the licensor might be the same person
as the author. In this case, merging the Derivative Works rights analysis
with the Integrity rights analysis can be rationalised in that the
interests of the author and licensor are also merged in the same person,
so that a wholistic assessment of whether option (a)/(b) versus option
(c) can be taken by that one person. In this case, the "all or
nothing" option seems to me does not seem unprincipled or
impractical.  I do however see issues when the licensor seeks to
licence material that includes copyright material that is wholly or
partly sourced from another author. In this situation, the merger of
analysis would not necessarily coincide with the interests of
licensor/author: the licensor is not necessarily interested in protecting
the author from derogatory treatment, and Creative Commons would arguably
be doing the public commons a disservice if it encouraged licensors to
treat authors cavalierly (since this potentially discourages them from
permitting their work to be contributed to it). 

This leads me to wonder whether Creative Commons could develop a further
level of "modification licensing" that gives a further level of
choice. One way to formulate such a further level of "modification
licensing" could be this. Initially, the Creative Commons
"Choose licence" page could ask whether the licensor is also
the author of all the work (that is, is the work wholly original and
created by the author?), and if so, it could keep things simple by
leaving only the existing options (a), (b) and (c) open for the licensor
to choose from. If the licensor is not also the author of all the work, a
more sophisticated set of options could open up, that include the rights
to allow modifications with or without the assertion of the integrity
right. That is, the licensor would have the following options:

(a) to permit distributions of modifications of the licensed work without
any restriction at all; or 

(a1) to permit distributions of modifications of the
licensed work without any restriction other than subject to preservation
of the integrity right; or

(b) to permit distributions of modifications of the licensed work without
any restriction other than a Share-and-Sharealike restriction (ie, if you
distribute a modification, you may do so "only under a licence
identical to this one"); or

(b1) to permit distributions of modifications of the licensed work
without any restriction other than subject to preservation of the
integrity right and a Share-and-Sharealike restriction; or

(c) to prohibit any distributions of modifications of the licensed work
(though the unaltered original can still be freely 
distributed).

What do others think: 

* Is the above discussion persuasive? Are there coherent
alternatives? 

* Are the options/analyses/solutions described above
attractive? Are there viable alternatives? 

* In the suggested further level of "modification
licensing" above, is posing an initial question of whether the
licensor is the author (and then restricting a licensor-author's choice)
too restrictive? Are there other ways of practically structuring a wider
range of "modification licensing"?"

Regards 
Ian Oi

Professor Brian Fitzgerald
Head of School of Law
Queensland University of Technology

2 George Street
Brisbane Qld  4000
email: bf.fitzgerald AT qut.edu.au
ph:     61 7 38642710
CRICOS No: 00213J