Development of Creative Commons licenses

[Peter Brink <peter.brink AT brinkdata.se>]

Peter Knupfer, H-Net skrev:
> Rob Myers wrote:
> > On 18 Mar 2005, at 19:25, Peter Knupfer, H-Net wrote:
> >
> > > How does the CC by-attribution/noncommercial/noderivatives license 
> > > affect a licensor's exercise of moral rights in a text?  [...]  Under 
> > > the CC license mentioned above, the author has granted such a use.  
> > > Outside the license, the author can refuse permission.  Is this a 
> > > correct interpretation of the license?
> >
> > I am not a lawyer, I am not CC.
> >
> > Yes, you are correct. Some international versions of the licenses 
> > explicitly reserve moral rights, but the original licenses are silent 
> > on them so they default to the baseline, which is that you have kept 
> > and can assert your moral rights.
>
> I guess I don't understand.  If you are referring to a "baseline" of US 
> law, there are no recognized moral rights that can be asserted as a 
> legal complaint of infringement.  The only way to exercise them in a 
> collective work under the CC license is to demand removal of your name. 
>  Otherwise, the CC license specifically permits verbatim reuse without 
> notification or permission.  The author therefore doesn't get the chance 
> to refuse permission for whatever reason, if the use is consistent with 
> the license terms.  And the author has to know about the use in the 
> first place.

Please remember that a copyright holder only waives such rights which 
are explicitly stated in the CC license (or any other copyright license 
for that matter), all other rights are retained by the copyright holder. 
If a copyright holder is entitled to moral rights in the jurisdiction in 
which his work is used, those rights are thus not waived.

A possible source of the confusion which seems to be the reason for this 
thread is that Open Source and Open Content licenses (as such) are 
governed by contractual law and international private law while the 
copyright (as such) is covered by copyright law and international 
copyright treaties (i.e. the Berne convention). Under the Berne 
convention the exact rights a copyright holder has varies depending on 
which jurisdiction he chooses to assert his (copy)right. The contractual 
obligations stated in the license may however either be interpreted 
according to the laws of the jurisdiction in which the licensor lives, 
or according to the laws of the jurisdiction in which the licensee lives.

It is thus quite possible that a US copyright holder who has issued a CC 
license for a work of his, may assert moral rights in Europe for that 
work, even though such rights are not stated in the license. And even if 
the license does state that moral rights are waived, a jurisdiction may 
have rules which denies a party the right to waive moral rights, 
invalidating that specific part of the license.

/Peter Brink