Creative Commons Canada

[Darren Wershler-Henry <darren AT alienated.net>]

Hi everyone --

On 7/20/04 7:35 PM, "Marcus Bornfreund" <marcus AT uottawa.ca> wrote:

> As soon as the infrastructure and our resources allow it, iCommons
> Canada in collaboration with Creative Commons, will implement
> functionality to allow creators to waive in whole, or in part, their
> moral rights. This is a promise. It was never our intention to forever
> insist upon nor ban the waiver of moral rights, we are simply working
> within the existing constraints. We are doing our best.

Thanks for clarifying, Marcus. I know that the ability to waive moral rights
in whole will be important to many of the artists that will wish to use the
CCCa licenses. The people that are using CC licenses in the States tend to
be artists, musicians and writers heavily involved in sampling culture;
these are people that will not only want the right to sample, modify and
(yes) deface the works of others in the name of creating new works, they
will want to be able to indicate that it's okay to do the same with the
works they place under CCCa licenses.

The right of integrity is the moral right that will create the most
problems. IANAL but it feels like a kind of back-door clause to me ... if
you release a work under a CCCa license but someone does something that you
think violates your right of integrity, so much for usefulness of the CCCa
license. And frankly, the grounds for potential complaint seem very broad.

In her book on Canadian copyright law, Lesley Ellen Harris notes in her
discussion of the moral right to integrity/right to prevent changes to a
work that "painting a moustache on the Mona Lisa (provided the Mona Lisa
were still protected by copyright) may be a violation of Da Vinci's moral
rights". So much for the legality of one of Marcel Duchamp's most famous
works, "L.H.O.O.Q.". She goes on to state that "manipulating a scanned
photograph may also possibly be a violation, provided it is prejudicial to
the honour or reputation of the author of the photograph." [p.119] So much
for everything on fark.com, not to mention political satire. Being able to
determine whether or not those rights have been waived before choosing a
photo/song/book to cut up/detourne/whatever will be an important gesture to
make, should the artist doing the cutting up/detourning/whatever choose to
do so (and they may well not, but that's beside the point).

If the right of integrity goes so far in its protection of creators' rights
that it actually hinders the rights of other creators who are working with
various types of sampling (and many people will argue that it does), the
CCCa license presents an opportunity to redress the situation. I think we
should support Marcus et al.'s efforts to get these things working before
people start threatening not to use the license. Those of you with
experience in the Free and open source communities should well know the
dangers of forking products, especially in their early stages. I'd like to
see the CCCa license emerge as both a standard and a best practice, and I'm
willing to help it evolve into one.
 

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Darren Wershler-Henry
darren AT alienated.net

"George Jones is a funky motherfucker."
--Ray Charles

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Darren Wershler-Henry
darren AT alienated.net

"George Jones is a funky motherfucker."
--Ray Charles