Development of Creative Commons licenses

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

Greg London wrote:

> Maybe I'm too much of an american, but "Fair Use" is not an attitude.
> Fair Use encompasses a set of rights that remain public rather than
> being granted exclusively to the author with all the other rights
> to the work.
>
> The right to record a TV program on a VCR being a major Fair Use right.

It is indeed quintessentially American that some people see privileges 
as rights.  But if we're talking about law and compelling people to 
follow rules, fair use must be seen for what it is.

And fair use is not a right.  Until 1976, it was judge-made doctrine, 
extending from Story's decision in Folsom v. Marsh in 1841, which laid 
out the elements of the fair use test: "look to the nature and objects 
of the selections made, the quantity and value of the materials used, 
and the degree in which the use may prejudice the sale, or diminish the 
profits, or supersede the objects, of the original work."  Story was not 
enumerating rights; he was crafting doctrine the way his contemporary 
John Quincy Adams crafted the Monroe Doctrine, as a set of assertions 
and propositions not codified in law.

Fair use is a privilege granted as an exemption to the blanket 
copyrights provided for in US 17.  The act didn't create a fair use 
right and never refers to it that way.  It exists in some form in other 
countries' copyright laws under "fair dealing" or "fair practices" 
provisions.  In fact, it is precisely because it is an exemption and not 
 a right that it can be undermined via what one expert calls "quasi 
copyright" provisions in clickwrap licenses and uniform commercial codes 
that greatly restrict fair uses of works.

It does express a set of attitudes about public uses of works.  Call it 
common sense, call it a flexible interpretation of the Constitution's 
clear injunction about the purpose of copyright and patents as useful 
contributions to public knowledge.

"Moral rights" are very much a part of world copyright law, however 
vacuous or dangerous some people here may regard it.  In fact, it is the 
converse of fair use: we have fair use but not moral rights; other 
countries have the reverse.  As someone here pointed out, the Berne 
Convention and its successors provide for moral rights in literary and 
artistic works, and then politically abandon the field by making 
enforcement subject to applicable local law.  And there's a big slice of 
IP law for audiovisual works and phonograms that is reserved to "moral 
rights."

But it's worth considering how Berne defines moral rights, given the 
discussion here on this list:

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

"Independently of the author's economic rights, and even after the 
transfer of the said rights, the author shall have the right to claim 
authorship of the work and to object to any distortion, mutilation or 
other modification of, or other derogatory action in relation to, the 
said work, which would be prejudicial to his honor or reputation."

Notice how sweeping this is.  It even applies after transfer of 
ownership, very much a feature of European copyright systems that focus 
on the *creator,* not the *work.*  A work has no rights.  Creators do.

It may be a step too far for Lipstadt to claim that putting her lecture 
up next to a Holocaust denier's lecture fits the above definition, but I 
 think it is arguable that some of the other instances I suggested -- 
such as the use of anti-apartheid testimonies at pro-apartheid web sites 
-- is a "derogatory action" that is "prejudicial to [the creator's] 
honor or reputation."

regards

Peter