Development of Creative Commons licenses

["Jessica Coates" <j2.coates AT qut.edu.au>]

I've only skimmed the conversation, so I don't know if these comments have
been made already, but:

- re the suggestion that 'fair use' could be used to allow ordinary use
without changing the DRM clause - this only works in the US, with its open
ended fair use clause (or other countries with an open private use or
equivalent exception - which a lot of countries don't have). For example,
current Australian law, with its limited fair dealing provisions, doesn't
allow people to copy music they own onto their ipods unless it's for
research and study etc (don't worry we're fixing it). Besides, I thought
that the DMCA TPM provisions trumped fair use?

- re the 'adaptation' debate - this term definitely has a clear legal
definition in Australia, which probably wouldn't include all the uses
intended to be covered by the CC licences. I'd say there's a real risk that
using this word would import a whole lot of legal baggage into the
interpretation in many countries - I don't think we could use it in our
jurisdiction licence. That being said, it might be difficult to come up with
a clear, simple term that doesn't have the same effect somewhere.

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Today's Topics:

   1. Re:  BY-NC-SA (International) 3.0 Draft 1 Comments (Peter Brink)
   2. Re:  BY-NC-SA (International) 3.0 Draft 1 Comments (Luis Villa)
   3. Re:  BY-NC-SA (International) 3.0 Draft 1 Comments
      (rob AT robmyers.org)


----------------------------------------------------------------------

Message: 1
Date: Mon, 14 Aug 2006 11:08:48 +0200
From: Peter Brink <peter.brink AT brinkdata.se>
Subject: Re: [cc-licenses] BY-NC-SA (International) 3.0 Draft 1
        Comments
To: Discussion on the Creative Commons license drafts
        <cc-licenses AT lists.ibiblio.org>
Message-ID: <44E03DA0.3040103 AT brinkdata.se>
Content-Type: text/plain; charset=ISO-8859-1; format=flowed

Rob Myers skrev:
> 
> For me personally the problem with "adaptation" is that it I'm used  
> to a use of the word that is more limited than "derivative". So  
> "adaptation" would just mean a television or film version of a book.  
> And in fact the dictionary that I am looking at uses this definition.  
> It does not mean a sample of a piece of music used to make another  
> piece of music, for example.
> 

If we take Sweden as an example, we will find that the Swedish 
translation of "derivative" ("h?rlett") is a term that does not exist in 
the Swedish copyright law. The term "adaptation" ("bearbetning") is the 
term used in the legislation, in the legal literature, in case law etc. 
So the term "adaptation", in an international perspective, tend to point 
people in the right direction - at least as far as their national
legislation goes.

It is correct that a sample is not, generally speaking, an adaptation. 
It's either a copy, or (if the sample cannot be considered an original 
work in itself) it falls outside the scope of copyright law (here I 
refer to European law). So it might be worth considering to add a 
specific note that the license treats sampling of music as if such a 
sample is an adaptation.

/Peter Brink


------------------------------

Message: 2
Date: Mon, 14 Aug 2006 08:02:41 -0400
From: "Luis Villa" <luis AT tieguy.org>
Subject: Re: [cc-licenses] BY-NC-SA (International) 3.0 Draft 1
        Comments
To: "Discussion on the Creative Commons license drafts"
        <cc-licenses AT lists.ibiblio.org>
Message-ID:
        <2cb10c440608140502o607491dfw9ece5676ed4c2fdb AT mail.gmail.com>
Content-Type: text/plain; charset=ISO-8859-1; format=flowed

On 8/14/06, Peter Brink <peter.brink AT brinkdata.se> wrote:
> Rob Myers skrev:
> >
> > For me personally the problem with "adaptation" is that it I'm used
> > to a use of the word that is more limited than "derivative". So
> > "adaptation" would just mean a television or film version of a book.
> > And in fact the dictionary that I am looking at uses this definition.
> > It does not mean a sample of a piece of music used to make another
> > piece of music, for example.
> >
>
> If we take Sweden as an example, we will find that the Swedish
> translation of "derivative" ("h?rlett") is a term that does not exist in
> the Swedish copyright law. The term "adaptation" ("bearbetning") is the
> term used in the legislation, in the legal literature, in case law etc.
> So the term "adaptation", in an international perspective, tend to point
> people in the right direction - at least as far as their national
> legislation goes.

Part of the GPL's reasoning in getting rid of derivative was actually
to get rid of all the legal baggage around derivative, and use
something that they could define themselves. If 'adaptation' is a term
of art in European countries, perhaps it is best to avoid that as
well.

Luis

> It is correct that a sample is not, generally speaking, an adaptation.
> It's either a copy, or (if the sample cannot be considered an original
> work in itself) it falls outside the scope of copyright law (here I
> refer to European law). So it might be worth considering to add a
> specific note that the license treats sampling of music as if such a
> sample is an adaptation.
>
> /Peter Brink
> _______________________________________________
> cc-licenses mailing list
> cc-licenses AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>


------------------------------

Message: 3
Date: Mon, 14 Aug 2006 13:32:25 +0100
From: rob AT robmyers.org
Subject: Re: [cc-licenses] BY-NC-SA (International) 3.0 Draft 1
        Comments
To: Discussion on the Creative Commons license drafts
        <cc-licenses AT lists.ibiblio.org>, Luis Villa <luis AT tieguy.org>
Message-ID: <20060814133225.luh3almxz1w8kwo8 AT webmail.robmyers.org>
Content-Type: text/plain;       charset=ISO-8859-1;     format="flowed"

Quoting Luis Villa <luis AT tieguy.org>:

> On 8/14/06, Peter Brink <peter.brink AT brinkdata.se> wrote:
>> Rob Myers skrev:
>> >
>> > For me personally the problem with "adaptation" is that it I'm used
>> > to a use of the word that is more limited than "derivative". So
>> > "adaptation" would just mean a television or film version of a book.
>> > And in fact the dictionary that I am looking at uses this definition.
>> > It does not mean a sample of a piece of music used to make another
>> > piece of music, for example.
>> >
>>
>> If we take Sweden as an example, we will find that the Swedish
>> translation of "derivative" ("h?rlett") is a term that does not exist in
>> the Swedish copyright law. The term "adaptation" ("bearbetning") is the
>> term used in the legislation, in the legal literature, in case law etc.
>> So the term "adaptation", in an international perspective, tend to point
>> people in the right direction - at least as far as their national
>> legislation goes.
>
> Part of the GPL's reasoning in getting rid of derivative was actually
> to get rid of all the legal baggage around derivative, and use
> something that they could define themselves. If 'adaptation' is a term
> of art in European countries, perhaps it is best to avoid that as
> well.

My understanding is that the reasoning behind GPL3 and CC 3 is slightly
different:

* GPL 3 is being made as independent as possible of any jurisdiction.

* CC 3 International is being written to use the language of the Berne 
copyright
convention. The license states this explicitly

Berne uses both "derivative" and "adaptation". The latter is a sub-type of
the
former. Given that Swedish law doesn't use the term "derivative" (and I
don't
think UK law does either) I agree that it might be problematic to use this
word. And as I have previously mentioned I am also not sure that
"adaptation"
is without problems, although it could be clarified by the license.

So yes, this may be a case where rather than using a word from Berne 
that may be
problematic a GPL-3-style generic phrase should be used. Something like "a
new
work incorporating or transforming some or all of the licensed work" or "any
use of the work that would cause a new copyrighted work to be produced 
(such as
sampling, translation or adaptation)". But this may look strange if the 
rest of
the license is written in Berne-ese.

- Rob.



------------------------------

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