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cc-licenses - Re: [cc-licenses] cc-licenses Digest, Vol 41, Issue 19

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Subject: Development of Creative Commons licenses

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Chronological Thread  
  • From: Peter Brink <peter.brink AT brinkdata.se>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] cc-licenses Digest, Vol 41, Issue 19
  • Date: Tue, 15 Aug 2006 16:28:35 +0200

rob AT robmyers.org skrev:
Quoting Jessica Coates <j2.coates AT qut.edu.au>:

- 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.

Rather than refer to "derivatives" or "adaptations", the GPL 3 draft uses the
following generic definitions:

``A "modified" work includes, without limitation, versions in which material has
been translated or added. A work "based on" another work means any modified
version, formation of which requires permission under applicable copyright
law.''

http://gplv3.fsf.org/gpl-draft-2006-07-27.html


Unfortunately (in Europe at least) this definition extends the rights of the copyright holder at the expense of the licensee. One side effect being that unknowledgeable licensees could be fooled to think that they need to use the license when they really don't.

Here's why:
a) adding the new content B to A creating the work C is under European copyright law the same as creating a collective work. All additions to a work are (as long as the addition is an independent work - which in most cases is true) are the property of the author to the addition and thus not dependent on any other copyright. A preface (common in e.g. scientific literature) is thus under European copyright law an independent work, for which the author of the preface is the copyright holder.

b) You _do not_ need any permission to create a derivative work in Europe. You do need permission to publish such works.

So while you'll need at permission to _publish_ a collective work or an adaptation, the copyright holder to the original work does not gain any rights to the collective work or the adaptation.

To my mind, it is important not deceive the users of the license about the scope of their rights. It is better, IMHO, to explicitly list uses that would have been fully under the control of the copyright holder, but who is treaded by the license as if they were adaptations (and thus enabling the user to sublicense). For example, state in the license that all sampling is - as far as the license goes - treated as if they were adaptations etc.

There is one problem that cannot be solved though, the license will never be able to give licensees who are not creators of "real" adaptations any moral rights. That power is held by the law maker alone.

/Peter Brink




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