Creative Commons Canada

[Marcus Bornfreund <marcus AT uottawa.ca>]

Hi everyone. In https://lists.ibiblio.org/sympa/arc/cc-ca/2004-July/000027.html I explained that, due to the absence of the ability to specifically retain or waive moral rights, iCommons Canada has chosen to build the retention of the right of integrity into the licence itself. In doing so we felt that we were following cc's lead with respect to its dealing with the right of attribution (built-in), as well as the approach of the other iCommons countries who have addressed this issue before us (retained).

Outspoken members of the cc-ca email discussion list resisted the non-waiver of the right of integrity to the point where they have withdrawn support for the cc-ca licence, instead swearing they would rather use the generic US-based cc licence since they believe that doing so would have the effect of waiving their moral rights - while still allowing them to participate in the cc initiative. Though this tactic is debatable in terms of its legal effect, it is a point well taken.

As previously brought to my attention by Russell et al. and quoting from http://creativecommons.org/projects/international/overview: 

"To preserve the global spirit of Creative Commons, we strive for utmost similarity between the licenses worldwide. It is very important to us that the porting be very close to the original and go into the specifics of national law only when absolutely necessary."

Upon a re-reading of the specific guidance given to iCommons project leaders above and after consultation with several stakeholders, including cc staff members, I understand that for the sake of interoperability it is an iCommons participant country's mandate to produce a translated domestic licence which has the same effect as the generic US-based cc master licence. This, of course, is regardless of other complementary or dissimilar copyright laws and concepts which may exist in the participating country and wish to be applied. Because this is a licence between the creator and user, the domestic default copyright regime need not be applied to the cc master licence (though it is certainly an enriching learning experience to see how it may be). 

Since the generic licence does not make mention of the right of integrity it follows that to introduce and retain this right in the cc-ca licence only serves to reduce interoperability. It is on this point that iCommons Canada is reversing its previous decision to inherently retain the right of integrity in the cc-ca licence. Instead, the right of integrity will be waived in the cc-ca licence until such time as its retention can be selected from the Creative Commons licence generator.

The debate over the right of integrity was also valuable in illuminating Professor Lessig's oft-quoted expression: Code is law. By including the waiver of the right of integrity in the code itself, I am legislating a particular code of conduct for all those who use it (both original and downstream creators). Believe me when I say that I would rather not be making this choice on anyone's behalf. Participation in the creative commons should be voluntary and on a creator's own terms. It is my express hope that Creative Commons will commit the resources necessary to enabling this functionality by adding the right of integrity to their rooster of licence elements.

A FAQ on moral rights will be added to CIPPIC's website shortly: http://www.cippic.ca/en/faqs-resources/moral-rights/. If you are concerned about these issues I urge you to take a few minutes to read it.

/Marcus
<x-tad-smaller>___________________________
Marcus Bornfreund
 
+ Manager / Part-time Professor: 
University of Ottawa Law & Technology Program  <http://www.commonlaw.uottawa.ca/tech/>
+ Managing Editor:
University of Ottawa Law & Technology Journal <http://www.uoltj.ca/>
+ Project Leader:
iCommons Canada <http://www.icommons.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 x3089
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e.  marcus AT uottawa.ca
 
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