Creative Commons Canada

[Russell McOrmond <russell AT flora.ca>]

On Thu, 29 Jul 2004, Darren Wershler-Henry wrote:

> These sorts of questions won't go away until the CCCa licenses cover
> full options for the use and/or waiving of moral rights, so someone
> should probably formulate an answer for the FAQ page.

  These types of questions still won't go away once iCommons.ca moves
beyond the Creative Commons licenses.

  There was discussion at one point of a Canadian translation of the GNU
GPL.  Unfortunately this isn't really possible to do, as a Canadian GPL
would necessarily be GPL incompatible, and thus would not be useful.

  What is needed is a Canadian legal interpretation of the GNU GPL (and
other licenses) that could be used by the courts.  The idea would be to
make clear the intent of licenses used internationally even though no
single license can ever be authored to take into consideration all the
multiple (incompatible) aspects of copyright laws in every country.


  There is a need for this conversation to be moved forward for a number
of reasons outside of simply the Creative Commons context.  Take for
instance the discussion under "Educational use of the Internet" in the
recent Heritage report.  I believe this discussion is really about
"creator intentions not declared in copyright licenses".  To read more of
my thinking on this issues see:

CIPPIC replies: Russell McOrmond (Webmaster for Digital-copyright.ca)
http://www.digital-copyright.ca/node/view/428
(Under the section "Educational Use of Internet Materials:").

  The problem we have with copyright law is that it keeps expanding in
scope such that it now includes pretty much all human creativity.  The
vast majority of human creativity is not commercial in nature, and for
which the creator did not hire (nor should be expected to hire) a lawyer.  
Most works have an implicit license based on how the copyright holder
decided to release the work to the public.

  This implied license needs to both be binding on the public, as well as
the copyright holder: the copyright holder should not be able to claim
infringement when it is their own activities which implied that they
intended to authorize certain activities.  The assumption that copyright
disallows what is not explicitly authorized in a license is incompatible
with the way most humans create and communicate.  It should be clear that
it is the law, and not human activity, that needs to change or be
clarified.


  A copyright holder should not be allowed to carry out activities
incompatible with later-claimed licensing terms and essentially induce
others to "infringe" their copyright.


Example: This email has an implied license by the fact that I am posting
it to mailing list such that it will be publicly web-archived at
https://lists.ibiblio.org/sympa/arc/cc-ca/2004-July/date.html .  Not only 
is it archived there, but further "copies" will exist on search engines, 
the WayBack engine, and so-on.

  As the copyright holder of this message I should *NOT* be legally
entitled to go to ibiblio.org (formerly sunsite.unc.edu , formerly
metalab.unc.edu) or any of the hosts of copies and claim they are
infringing my copyright.  The fact that I did not offer ibiblio.org an
explicit license agreement should not matter since I deliberately posted
this message to their (and other) archives.

  This discussion should include the fact that "Access Copyright" and
other collectives have *NO* right to collect royalties from anyone
(including and especially educational institutions) for this email.  This
should be regardless of the physical location of the "server", or whether
there is a "substantial connection to Canada" as discussed in the SOCAN
case.

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Petition for Users' Rights, Protect Internet creativity and innovation
      Canadian Election 2004: http://digital-copyright.ca/
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