Development of Creative Commons licenses

[Henri Sivonen <hsivonen AT iki.fi>]

On Oct 7, 2006, at 16:09, Andres Guadamuz wrote:

> Comparing FLOSS with CC is a problematic exercise for various reasons.
> While a growing number of the general public is using open source and
> free software, the licences are really applicable to a small minority
> (comparatively) of developers, SMEs and larger enterprises. These  
> people
> tend to be knowledgeable, well-educated and have access to someone who
> can speak English and/or understand the licences.

Moreover, if you don't accept the license, you don't get the rights,  
so a prospective licensee has an incentive to figure it out.

> Now contrast this to
> the target audience of Creative Commons. The movement exists to  
> provide
> an easy to understand manner to provide open content to a vast  
> number of
> people. Not everybody understands English, so translation makes a  
> lot of
> sense to a movement that has such a potentially large number of users.

The official party line has been that they are not mere translations  
but ports. Yet, even people close to CC tend to think of them as mere  
translations. Of course, in practice people will treat them as  
translations. If there's a language-independent photo licensed under,  
say, a Dutch CC license, most people around the world are going to  
read the Dutch license but a license in some other language.

> She does not
> speak English, so if we don't translate the licences, she would never
> know about open content and free culture.

But they aren't mere translations but ports. How is the rest of the  
world going to know what weird stuff crept into the license when  
porting?

> - Contract formation: In most countries licences are contracts, so the
> draft has to accommodate local contract formation principles.

So does CC believe that people in country X can't use works licensed  
under a license from country Y, because the license from country Y  
doesn't follow the conventions of X?

Also, there's a much more tangible problem if it is true that people  
in country X *must* use licenses for country X: If I write in  
English, which I do a lot, using a Finnish-language license makes no  
sense. (Due to the way the world works, this is not symmetric and an  
English-language license for Finnish-language content is still  
practical.)

> - Moral rights: software does not have moral rights in many
> jurisdictions. On the other hand, all creative works have moral  
> rights,
> and the range of protection in this area alone is staggering.

Why can't the licenses contain a blanket waiver for what is waivable  
and that CC doesn't want specifically to retain? What is not waivable  
cannot be waived anyway.

> - Drafting rules: In the UK we have a requirement by law to draft
> consumer contracts in user-friendly language.

Can't the Generic version be in user-friendly language? Does the U.S.  
*require* unfriendly language to be used?

Moreover, why does CC consider the licenses consumer contracts? A  
mere consumer doesn't need the license to view the work. The license  
is needed for distribution and creating derivative works at which  
point the "consumer" is no longer in the role of a consumer. Again,  
if a consumer appealed to law to make the license invalid, the joke  
would be on him, because he wouldn't then get the right granted by  
the license.

> - Quirky copyright implementation rules: different countries have
> considerably different rules on the application of things like
> technological protection measures (just to name one), or that have
> considerably different definitions for some licence elements. Drafting
> licences that recognise these local idiosyncrasies tend to be more
> likely to stand up in court.

How does this work for use cases like Flickr? The content creation,  
consumption and remixing crosses borders. It isn't realistic that  
people only interact within their own country in the official  
language of their own country.

--
Henri Sivonen
hsivonen AT iki.fi
http://hsivonen.iki.fi/