Development of Creative Commons licenses

["Greg London" <email AT greglondon.com>]

Peter Knupfer, H-Net said:
> 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,

Look, I don't really care how you explain it. Fair Use means I can DO
certain things that I couldn't DO otherwise. And along the lines of
how rights let me DO things like copy, distribute, and create derivative
works, then I view it as taking rights that would otherwise belong
to the author and returning them back to the Public.

And I don't believe I ever used the word "priveledges".
I was talking about rights like the right to copy, distribute,
and create derived works. Fair Use takes some of those rights
and gives them back to the public.

Attitude has nothing to do with it. And whether it started as
judge-made doctrine or came from magic beans, I don't care.


> 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.

Who said a work has rights?

And "notice how sweeping this is" only reinforces my belief that
moral rights are a rabbit trap with a rope leading back to the author.

Fair Use is a minefield. It basically means the public gets to
do something with a work until the author decides to sue.

But at least Fair Use has boundaries and edges.
copying an entire work is not fair use.
most downstream folks will know if they're getting
close to the edge or not. Warning bells start going
off, and the downstream person will start asking
around "Can I do this?"

Moral Rights, on the other hand, has no edge
It really is a trap door in that all rights to
the work can be pulled out from under a downstream
author. Out of the blue. And the only way the
downstream author will know they are about
to fall through the trap door is after they've
completed the work, the original author sees it,
and the downstream author hears the "click"
of the catch beneath his feet.

No thank you. I'll pass.