Creative Commons Canada

[Andy Kaplan-Myrth <techlaw AT uottawa.ca>]

Hi,

Sheila Crossey wrote:
> But something that's worrying me regarding the current licence, is that the 
> screen before you get to legal language states "Nothing in this license 
> impairs or restricts the author's moral rights." Here is the pointer: 
> http://creativecommons.org/licenses/by/2.5/ca/
> Then when you click on "English" and read the full licence you see that 
> moral rights (except attribution) are indeed waived. So it seems to me there 
> is a contradiction here. Am I right? If so, can it be fixed?

Thanks for bringing this up. It is actually very timely since I just 
spoke yesterday with Catharina Maracke at CC about this very issue. I 
think you are correct that there is a mistake in the 2.5 (and 2.0) 
Deed's statement about moral rights and Catharina is following up on 
having that corrected.

As for the more general issue of how moral rights are handled in the 3.0 
licences: The previous debate on this list leading up to the 2.x licence 
took place in a context where we may have had more choice about what to 
do in the licences. With the 3.0 process, we do not have as much choice. 
It is not a question of whether we follow the pack and retain moral 
rights, but a question of how we implement the licence so that it is 
effective in Canadian law while retaining the moral right of integrity.

Russell wrote:
> > > Given the commons deeds are authored in a country that
> > > doesn't explicitly have "Moral Rights", and most specifically the Right
> > > of Integrity, I believe it does a dis-service for any country with moral
> > > rights to not do one of:
> > >
> > >   a) Use a different commons deed that clarifies the moral rights
> > > retained by the author (possibly separate from copyright holder).
> > >   b) Require a waiver of moral rights other than the right of attribution.

One proposal is to retain moral rights and have the Deed say (as it says 
now), "Nothing in this license impairs or restricts the author's moral 
rights." The 2.0 and 2.5 Deeds should be adjusted to say that those 
licences waive the author's right of integrity. That way, the deed would 
clarify the moral rights retained by the author and be consistent with 
the licence.

Another approach would be to follow the recommended approach for the 
Japanese licence: Apparently, in Japan, it is not possible to make any 
change to a work without infringing moral rights. In those jurisdictions 
where that is the case, CC recommends adding a clause to the licence 
saying that the licensor agrees not to assert their moral right of 
integrity to the extent required in order to allow the licensee to make 
adaptations under the licence. This strikes a balance between the 
author's need to retain their moral rights and the user's need for clear 
boundaries on the author's moral rights. However, it is not at all clear 
that moral rights in Canada are as much of an impediment to adaptation 
as they are in Japan, so this may not be necessary.

There may be other approaches as well. Could we continue to discuss this 
within the context of retaining moral rights, since that is a priority 
for CC.org?

Cheers,
Andy


> ----- Original Message ----- 
> From: "Russell McOrmond" <russell AT flora.ca>
> To: <cc-ca AT lists.ibiblio.org>
> Sent: Tuesday, April 10, 2007 4:05 PM
> Subject: Re: [CC-ca] Moral rights in version 3.0
>
>
> > Andy Kaplan-Myrth wrote:
> > > Part of the process of porting version 3.0 to Canada will have to
> > > involve discussions about this issue. While we have not yet worked out a
> > > timeline for porting the licence, work will begin this Summer and I
> > > invite  anybody who is interested in Canadian CC licences in general and
> > > moral rights in CC in particular to contribute their comments here.
> >   I think my contribution is in the archives, but I believe that the
> > Commons Deed needs to match the legal language, or the licenses have
> > little value.  Given the commons deeds are authored in a country that
> > doesn't explicitly have "Moral Rights", and most specifically the Right
> > of Integrity, I believe it does a dis-service for any country with moral
> > rights to not do one of:
> >
> >   a) Use a different commons deed that clarifies the moral rights
> > retained by the author (possibly separate from copyright holder).
> >   b) Require a waiver of moral rights other than the right of attribution.
> >
> >   Having a license that says you are allowed to use a work and make
> > derivatives, except in ways that require you know the author
> > (effectively needing to get permission) isn't a very valuable license at
> > all.  I find it very frustrating that there are counties that haven't
> > adequately dealt with this issue, but I hope that Canada won't just
> > follow the pack.
> >
> >   As to the Kamloops photographer, I don't know that this is a moral
> > rights issue.  He clarified that if permission was asked for that it
> > would not have been granted on moral reasons, but that is different than
> > the moral right of integrity.  It is an answer to those who think that
> > his objection is only a matter of money..
> >
> >   An Attribution-ShareAlike license was used, and clearly this
> > publication was not in the same license and thus was a violation unless
> > additional permission were granted (which the author clarified they
> > wouldn't have offered).
> >
> > > Cheers,
> > > Andy
> > --
> >  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
> >  Please help us tell the Canadian Parliament to protect our property
> >  rights as owners of Information Technology. Sign the petition!
> >  http://www.digital-copyright.ca/petition/ict/
> >
> >  "The government, lobbied by legacy copyright holders and hardware
> >   manufacturers, can pry my camcorder, computer, home theatre, or
> >   portable media player from my cold dead hands!"
> > _______________________________________________
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> > CC-ca AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-ca
>
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--
Andy Kaplan-Myrth LL.B., M.A.
Manager, Law & Technology, University of Ottawa

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