Creative Commons Canada

[Marcus Bornfreund <marcus AT uottawa.ca>]

Sheila Crossey makes some excellent points. It is true that in the draft Canadian licence provision waiving the moral right of integrity in 4(f) would have the effect of also waiving 4(g) though in no specific detail. Under the Canadian copyright regime there are essentially two moral rights (1) the right to be associated with a work, and (2) the right to ensure the integrity of the work (Copyright Act s.14.1(1)). These rights may be waived in whole or in part (Copyright Act s.14.1(2)). The creator may agree to permit certain uses which would otherwise constitute infringement of her moral rights while retaining all other moral rights.

As a response to Sheila's message, and for the sake of clarity, we have chosen to combine sections 4(f) and 4(g) into one provision dealing with the waiver of the creator's moral rights. The rationale of doing so is that all moral rights are now clearly governed under the 'except as otherwise agreed by the Original Author' preamble of 4(f) and are implicitly reserved by the Original Author unless she agrees otherwise. The UK licence has a similar modification. Their section 4(d) has been converted into a moral rights provision whereas in the American master licence this had simply been an attribution provision. In the UK provision the Original Authors assert their moral rights in relation to the licensed work.

Again, in certain situations the creator may agree to waive their moral rights. Sheila suggests that because these choices will not be built into the iCommons Canada licence generator itself we may want to develop an accompanying waiver template to serve as a vehicle for creators to communicate and document such an agreement. 

This may prove to be practical suggestion for two reasons. First, as Shelia noted, the mere publication of a moral rights waiver agreement publicizes that the creator is open to the possibility of waiving some or all of their moral rights. Secondly, because the specifics of a waiver of moral rights will vary, a more simple moral rights waiver template would provide creators with a user-friendly legal instrument for them to explicitly waive a particular moral right under a particular condition. Such a waiver template could be used to, for example, allow the commercial use of an Original Work, previously only made available under a Non-Commercial licence, in consideration of monetary remuneration.

My opinion is that to be valuable such an accompanying waiver agreement would have to provided as an automated online resource much like the CC licence itself. The nature of the medium seems to require that documentation also be in electronic form. What does the list think? Is offering a waiver agreement helpful to creators or is it open to misuse and unintended results? Does the format matter?

If anyone on this list has suggestions, or a template, for creating an electronic waiver form I would be grateful if they could please contact me on or off-list:  marcus AT uottawa.ca.

/Marcus

<x-tad-smaller>________________________________
Marcus Bornfreund, B.A., LL.B., LL.M.
 
Part-time Professor / Manager - Law & Technology Program  <http://www.commonlaw.uottawa.ca/tech/>
Project Leader - iCommons Canada  <http://www.icommons.ca/>
Managing Editor - University of Ottawa Law & Technology Journal  <http://www.uoltj.ca/>
 
Faculty of Law : Faculté de droit
Common Law Section : Section Common Law
University of Ottawa : Université d'Ottawa
57 Louis Pasteur Street
Ottawa, ON CANADA K1N 6N5
 
t.  613/562-5800 x3299
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e.  marcus AT uottawa.ca
 
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