Development of Creative Commons licenses

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

wiki_tomos AT inter7.jp skrev:
> This is a comment on the version 3.0 in a way, but 
> not about an issue unique to the version 3.0 licenses.
>
> In short, I think it is important to clarify who are the 
> "Original Authors." The clarification could be in the 
> license text, in FAQ, or both. 

Any clarifications of terms used in the license needs to be included in 
the license text, otherwise you cannot rely upon them becoming a part of 
the contract.

> 1) Importance of understanding "Original Author" 
>
> CC Licenses of many versions, including the 3.0, require 
> that the Original Author's name (pseudonym) be supplied in 
> connection to copyright notices (see, 4.b.(i) of the CC-BY-SA 3.0 
> Generic, 4.c.(i) of CC-BY-SA 2.5, 4.b. of CC-BY 1.0 Generic, 
> for examples.) 
>
> When one uses a CC'd Work which has been refined and transformed by 
> multiple creators involving different CC licenses, figuring out 
> proper attribution could become difficult. Yet it is a 
> responsibility of a licensee to do so, and failing to 
> perform the duty could quite possibly result in license 
> termination. 
>
> The 3.0 draft adds one more reason to consider the 
> understanding of "Original Author" important. Section 4.f. 
> of the CC-BY-NC-SA 3.0 Generic says that original author is 
> protected from being dishonored. Dishonoring, again, leads to 
> license termination. Whose reputation does a licensee have 
> to protect when he uses a CC-licensed work? 
>
> In some cases, a licensee might better study the nature of 
> reputation some of the Original Authors have, in order not to 
> cause damage. 

The proposed Section 4.f deals with the moral rights of the 
creator/originator. This is an unalienable part of the copyright and 
thus the CC license cannot override it. It's also something that the 
U.S. - in spite of its obligations under the Berne Convention - has not 
yet implemented properly. Including an explicit referral to the authors 
moral rights in the license is btw, as far as I can see, one of the 
reasons for making the Generic license a non-US license. To understand 
the implications of 4.f. we must leave US copyright law behind, 
otherwise there is little hope of understanding 4.f.

To begin with, it's worth remembering that a copyright contract cannot 
expand or decrease the scope of a copyright. Only the lawmaker has the 
power to change the scope of copyrights. A copyright holder may yield, 
lend or sell some of his rights. The other party might agree to treat an 
object as if it was copyrightable. Such provisions are strictly 
contractual, the underlying copyright is unaffected by any provisions in 
the contract. The copyright holders moral rights are thus independent of 
any contract. Section 4.f is only a reminder to the licensee of that he 
must respect the artistic integrity of the originator.

Whether a party is in breach of a contract is of course governed by 
contract law and not copyright law. As long as the licensee and the 
licensor live in the same country this is not a problem, but when the 
parties live in different countries things get more trickier. Since 
there are no uniform international rules on how to make choices of law 
less can be said with certainty about this issue. As far as Europe goes, 
the presumption seems to be that (when it comes to copyright contracts) 
courts will choose the law of the jurisdiction where the licensor lives.

> 2) Examples
>
> As I understood, Original Author whose reputation a licensee has to 
> pay attention to are probably as follows: 
[ snip ]

This will depend on where (in which jurisdiction) the licensee publishes 
the work. If it's in a civil code jurisdiction then the copyright holder 
may assert his moral rights _regardless_ of what is stated in the 
license. A US author, who have used the US license, may assert his moral 
rights in France, should he wish to.

> To illustrate the formulation, here are some hypothetical 
> cases. 
>
> ==Case 1: ==
>
> Alice writes a poem, releases it under CC-BY-SA 2.5 Generic. 
> Bob makes it a song lyric, and releases it under CC-BY-SA 3.0 Generic. 
> Cathy use the lyric a in her musical which is under CC-BY-SA 3.0 Generic. 
>
> And suppose that Cathy's musical is very controversial, and Alice's 
> reputation is damaged. 
>
> Is is possible for Alice to terminate Cathy's licensee status 
> for the reason 4.f of the CC-BY-SA 3.0 Generic? 
>
> Alice's poem is under CC-BY-SA 2.5 Generic, not 3.0. But Bob's 
> lyric heavily relies upon Alices' poem. Is Alice one of the 
> Original Authors of Bob's lyric? 
>
> My preliminary answer is that Alice can terminate Cathy's license. 
> The license "Work," the lyric was authored by Alice and Bob. 
> And when Bob released a part of Alice's poem under 3.0 Generic, 
> Alice gained the new right to terminate her licensee based on 4.f. 

This issue is more complex than it seems. First we must know where Cathy 
has made her musical public, we must know if it's in a civil code 
jurisdiction or a common law jurisdiction. Then we must know where 
Alice, Bob and Cathy lives. Let us assume that Cathy's musical was 
performed in Germany and the script has been published in a German 
website. For the sake of the example we also assume that Alice lives in 
Sweden, Bob in Belgium and Cathy in Germany. Now we can proceed with 
more inquiries about the nature of Bob's and Cathy's works.

We must know if Bob merely edited Alice's poem, i.e. moved a word or two 
to a new line etc., or if he adapted the poem in such a way that a new 
original work was created. If Bob is only an editor his rights are only 
contractual, but if he is the creator of an original work, then he has 
his own (semi-independent) copyright to the work. If Bob's adaptation 
was only inspired by Alice's poem, then he has a fully independent right 
and does not need to use the CC-license at all.

If Bob is an editor, then Alice _owns_ his edition (copyright wise). NB! 
an edited version of a work is _not_ a new work, it's a copy of another 
work. Bob has no rights to his edition other than those the license 
gives him. If this is the case we must, before we proceed, determine if 
Bob has, as far as the _contract_ goes, distributed Alice's work or a 
adaption of his own making. To do that we need to make a guess on how a 
court would interpret section 1.b and 1.j (Adaptation and Work) of the 
new generic license.

It's a fair statement, I think, that since 1.b now uses the term 
adaptation (instead of derivative work) an European court will use the 
standard methods for determining if a work is an adaptation of another, 
for this task. The result will be that _if_ someone merely edits a work 
he will only be seen as a re-distributor. In our example Bob would thus 
not have the right to sublicense Alice's work (see 4.a). If Bob has only 
edited Alice's work, he and Cathy has in fact not entered a contractual 
agreement at all. Cathy licenses an edition of Alice's work, which she 
obtained from Bob. However, if Bob has indeed made an (original) 
adaption, then he has offered it to Cathy under a new instance of the 
generic CC-license. In this later case Cathy has entered into an 
contractual relation with Bob, but not with Alice.

Under current EC-law we are probably right if we assume that the 
contract btw Alice and Bob is governed by Swedish law, and that any 
contract btw Bob and Cathy is governed by Belgian law. In case of Bob 
being only an editor Cathy has entered a contract with Alice, and this 
contract is governed by Swedish law.

So - can Alice terminate Cathy's license? That depends - is section 7.a 
in accordance with Swedish law? IMO, an automatic termination will be 
considered unfair by a Swedish court. Alice would be wise to notify 
Cathy before accusing her of a breach of contract. Note that Alice has 
two options in this situation. She might sue Cathy in a German court for 
violating her moral rights, or she might notify Cathy of her violation 
of the terms of the contract and then terminate the license, and if 
Cathy does not comply (stops performing the musical) then Alice may sue 
Cathy in a German court for copyright violation...

Can Bob terminate Cathy's license? Only if Cathy has (in his opinion) 
violated _his_ moral rights.

> ==Case 2: ==
>
> Drothy writes a script, releases it under CC-BY 2.5 Generic. 
> Edward makes it a short story, and releases it under CC-BY-SA 3.0 Generic. 
> Fred makes it a controversial political treatise which he releases under 
> CC-BY-SA 3.0 Generic. 
>
> And suppose that Drothy's reputation is damaged by the controversial 
> political treatise. 
>
> Is it possible for Drothy, whose script is under CC-BY 2.5 
> Generic, to terminate Fred's licensee status based on 4.f. of 
> CC-BY-SA 3.0 Generic? 
>
> I think the answer is no. Drothy, whose work is under CC-BY 2.5, 
> never became one of the Original Authors in Edward's short story. 
> Drothy's script is still available under CC-BY 2.5 and nothing else. 
> Fred is free to use script under CC-BY 2.5 and release it CC-BY-SA 3.0, 
> but again, it does not mean any part of Drothy's work is under CC-BY-SA 3.0. 

In this case Dorothy and Fred has not entered a contractual relation. 
Dorothy may try and sue Fred for violating her moral rights but that is 
probably not an easy case to win. The nature of Fred's work is so 
different from Dorothy's that it's quite probable that a court would 
find that Fred's work is a new and independent work.

> ==Case 3: ==

Here we mix US legal issues with non-US. I'll refrain from making any 
comment -it's simply to much of an uncertain situation.

> 3) How to identify the names of the Original Author
[ snip ]
> But another big factor is a mistake in upstream attribution. 
> If some of the previous creators have incorrectly understood 
> the license terms, they might supply less names than they 
> should. It is perhaps quite important to check if that is the 
> case, and make necessary corrections. Mistake in proper attribution 
> it seems, is still a license violation and a ground for terminating 
> the liense. 

It's in fact a violation of copyright law as well. A licensee must 
always make sue that he attributes properly. It's mandatory under the 
vast majority of all copyright laws.


/Peter Brink