Creative Commons Canada

[Russell McOrmond <russell AT flora.ca>]

On Thu, 15 Jul 2004, Marcus Bornfreund wrote:

> i.  You must not falsely attribute the Work to someone other than the 
> Original Author;
> iv.  If applicable, You must respect the Original Author's wish to 
> remain anonymous.


> ii.  You must not do anything that results in a material distortion, or 
> mutilation of the Work that is prejudicial to the Original Author's 
> honour or reputation;
> iii.  You must not associate the Work with a product, service, cause or 
> institution that is prejudicial to the Original Author's honour or 
> reputation; and


  I just want to go on record as stating that I believe that while (i) and
(iv) are compatible with the peer-distribution/peer-production environment
that CC creates, that (ii) and (iii) are not.  To keep (ii) and (iii)  
intact is to create something other than a commons which may be consistent
with Canadian law, but is not consistent with the expectations or
requirement of those of us that participate (almost exclusively) within
peer-production and peer-distribution environments.


  A similar conversation has happened in the context of FLOSS licenses a
number of times over the years.  Nowhere in specific license agreements
does it state that the works are royalty-free.  This is not something
stated in the license agreement, but follows directly from the
definitions. In order to be "Free Software" or "Open Source software" you
should not need any additional licenses (royalty based or otherwise) or
communicate with any author (about moral or material rights).

http://www.fsf.org/philosophy/free-sw.html

    A program is free software if users have all of these freedoms. Thus,
    you should be free to redistribute copies, either with or without
    modifications, either gratis or charging a fee for distribution, to
    anyone anywhere. Being free to do these things means (among other
    things) that you do not have to ask or pay for permission.

    You should also have the freedom to make modifications and use them
    privately in your own work or play, without even mentioning that they
    exist. If you do publish your changes, you should not be required to
    notify anyone in particular, or in any particular way.

    The freedom to use a program means the freedom for any kind of person
    or organization to use it on any kind of computer system, for any kind
    of overall job, and without being required to communicate subsequently
    with the developer or any other specific entity.


  Notice *any kind of person or organization* which is in direct conflict
with (iii). Having to consider what any specific contributor to the
commons considers to be "prejudicial to the Original Author's honour or
reputation" is a requirement "to communicate subsequently with the
developer or any other specific entity".

  I know that iCommons Canada will be trying to translate FLOSS licenses
in the future, so this is worth thinking about now.  Any license where
(ii) and (iii) are retained would not qualify as FLOSS.


  Now I realize that the Creative Commons doesn't have a definition like
the Free Software foundation does, but I believe it is worth noting that
they did take their inspiration from the FLOSS movement.  They attempt to
offer similar features for peer-distribution and peer-production of
non-software works.

http://creativecommons.org/learn/aboutus/

    Taking inspiration in part from the Free Software Foundation's GNU 
    General Public License (GNU GPL), Creative Commons has developed a Web
    application that helps people dedicate their creative works to the
    public domain -- or retain their copyright while licensing them as
    free for certain uses, on certain conditions. Unlike the GNU GPL, 
    Creative Commons licenses are not designed for software, but rather
    for other kinds of creative works: websites, scholarship, music, film,
    photography, literature, courseware, etc. We hope to build upon and
    complement the work of others who have created public licenses for a
    variety of creative works.


> Because the existence of these important rights is often unknown to 
> Canadian creators, we have decided to err on the side of caution by 
> building their protection into the iCommons Canada licence as a 
> default.

  Since people are unaware of the existence of these rights, and most
people working in a commons work in an international context where the
consequences are never discussed, erring on the side of caution would be
to waive them for works within the Creative Commons.

  The last thing the international Creative Commons movement needs would
be a lawsuit of someone trying to take something out of the commons by
exerting specific moral rights against the commons.  This would create a
chill against participation in the commons, or at least a chill against
contributions from citizens of specific countries.

> This is not true; reasonable use, ie. use not so unreasonable that it 
> would offend a creator's moral rights is protected by law.

  Under (ii) and (iii) above there is no clear indication of what is
"reasonable use" other than to talk with the creator.  Once you have to
talk with the creator to find out their personal/political views on what
they consider "prejudicial to the Original Author's honour or reputation",
the pre-authorization nature of the Creative Commons is gone and thus the
licenses end up serving no practical purpose.

> What Russell is missing in his critical analysis is that:

  What Marcus has forgotten is that once a case is before the courts, the
Commons has already lost.  All that is required to create a chill against
the participation in the Creative Commons is to have an accusation of
infringement that has any chance of being considered legitimate.  If a CC
participant can say "you are a military installation, and I am a Quaker"
then you have created a conversation that is itself incompatible with the
CC concept.

> Because of this, some uncertainty is an unavoidable by-product of
> 'porting' the licence into the Canadian copyright regime, regardless of
> which approach we take to moral rights.

  I do not see how waiving (ii) and (iii) within the context of a CC
license creates any uncertainty.  It is these moral rights which create
the uncertainty, and the uncertainty is gone once they are appropriately
waived.

  I also need to ask if this really is an all-or-nothing situation.  With
material rights you can license them and set out clear conditions where
permission is granted.  Can the same thing not be done with moral rights
where a commons adhering to the CC license will never have (ii) and (iii)
exerted against that commons, while an author can still exert moral rights
outside of the commons?

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Petition for Users' Rights, Protect Internet creativity and innovation
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