Development of Creative Commons licenses

["Peter Knupfer, H-Net" <peter AT mail.h-net.msu.edu>]

Greg London wrote:
> Peter Knupfer, H-Net said:
>
> > These are fairly serious issues for scholars who are sharing documents
> > or putting up preprints that can be snatched and inserted into
> > anthologies in ways that distort the original work's meaning.
>
>
> > the CC license can have a significant chilling effect on the sharing of some
> > works -- especially culturally-sensitive or highly emotional materials.
>
>
> Two strong assertions. Do you have any example?
> Not a hypothetical example, but a real-world example
> where Moral Rights somehow saved the day?
>
> My current feeling towards moral rights is that they are
> even worse than Fair Use from a gotta-go-to-court-to-sort-it-out
> point of view.
>
> I assume we're talking about more than an author being
> able to demand their name be taken off of a derivative,
> and more about an author stopping someone from distributing
> a derivative that the author doesn't like.

I'm talking about a collective, not a derivative, work.

Context matters, and context is the essence of moral rights.  It gives 
meaning to otherwise isolated information and affects the reputation 
and, sometimes, credentials, of a work's creator.  Nor is this about the 
extent to which moral rights "saves the day."  Moral rights, like fair 
use, is a euphemism for a set of attitudes about how one's ideas are 
germinated and used, and if people believe that such rights are not 
available to them, they will be disinclined to share.  If, however, 
moral rights are available to them, they could be more inclined to share 
because at least they have recourse in extreme circumstances.

E.g:

-- the author of the best short defense of the Japanese forced 
relocation in World War II refused to permit its use in a second edition 
of a reader, because she felt the entirety tipped too much against her 
point of view.  Under the CC license, she could not prevent its reuse in 
the collection.

-- Peggy Lipstadt has just withdrawn permission from C-SPAN to broadcast 
a lecture on Holocaust Denial because C-SPAN intended to "balance" it 
with a lecture by a Holocaust denier.  Those seeking "credibility" for 
propositions considered absurd by the professionals and reasonable 
people desperately want these kinds of "problems in" recognitions.

-- Anti-apartheid activists who record oral histories of their 
participation in the struggle, find out that the tapes are being 
streamed from a website run by their former jailers from the old regime. 
 Like the classic bait and switch to attract users to web sites, the 
creators of the web site are using the tapes to draw traffic to a web 
site that is positively repulsive to the interviewees.  Under the CC 
license, what recourse do they have?

-- the author of a work in progress posts it to a paper server for a 
comment period, covered by CC BY-NC-ND.  Another user incorporates the 
paper, with attribution, into an anthology to be given away online, and 
gets the credit for moving the original into full publication first. 
The original author's hopes of developing the paper into a chapter or 
section of an upcoming book are therefore influenced by this immediate 
reuse of her material.  Moral of the tale: don't share works in progress.

In some cases, if the no-derivatives is in effect, the copyright holder 
might attempt to claim that such uses are indeed derivatives and 
therefore prohibited, but that's a stretch.

My problem in these examples, is not that the refusal of permission is 
justified -- Holocaust deniers will never listen to anybody, but the 
audience needs to see their views rebutted.  But Jeffersonian 
rationalism is but a theory when stacked up against human nature.  My 
problem is that the CC license could have a chilling effect on the 
willingness to publish and share in the first place, and that important 
works will not be available to the audiences that might benefit most 
from them.

regards

Peter