Skip to Content.
Sympa Menu

cc-licenses - Re: [cc-licenses] New Generic and ports

cc-licenses AT lists.ibiblio.org

Subject: Development of Creative Commons licenses

List archive

Chronological Thread  
  • From: Andres Guadamuz <a.guadamuz AT ed.ac.uk>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] New Generic and ports
  • Date: Sun, 08 Oct 2006 00:34:00 +0100

Henri Sivonen wrote:
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.
Why assume this? If there is an enthusiastic group of people who have bothered to translate the licence for you, and to make sure that it is compatible with your local legislation, why not use it? Why make things more difficult when it can be easier?

The official party line has been that they are not mere translations but ports.
Can you please cite evidence that this is official party line? AFAIK, ports are also translations (where required). IMHO, this is extremely important to the stated goals of the movement.

Yet, even people close to CC tend to think of them as mere translations.
Again, can you provide evidence for this?

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.

The general principles are similar in all ports, so it is fine to look at a Chinese, English, Spanish, French or Portuguese version of the same licence in order to understand what the terms and conditions are. I will keep repeating this, but not everybody in the world speaks English fluently. As I mentioned in my previous post, local courts can use their local licence for interpretation even if the creator has used the Generic English licence.

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?

Ports meet two goals, porting legal documents and translation for the public. I also think that the term translation is much broader than "porting". Porting is not a legal term, but translation is.
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?
These are not "conventions". This is law. A Scottish licence may not be a contract in the United States, and an American licence may not be a valid in Europe. This has nothing to do with CC's ideas, it is a fact of International Private Law.

Also, there's a much more tangible problem if it is true that people in country X *must* use licenses for country X:
Ahhhh! They don't HAVE to use the local licence, but they can if they want to feel more confident that their licence will be upheld in court.

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.)
Why does it not make sense to use the Finnish licence? Even if you write in English, where would you expect to litigate if you were in a dispute over the licence? Because of the symbols, people will know that you are using a specific licence (say CC-BY-NC). I think that you are also applying your own personal experience and trying to argue that the rest of CC users across the world are the same. While it could be better for you as an individual user to use the Generic licence, this may not be the case for a large number of creators. Nobody is forcing you to use the Finnish licence if you don't want to.


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.
If only it were that easy... During the last iCommons summit I believe that we counted five different ways in which present jurisdictions handled moral rights and waivers, most of them incompatible with each other. I don't know why complicate an already complex licence with five possible eventualities regarding moral rights, when there are people willing to prot the licence to fulfil the local treatment of moral rights.
Can't the Generic version be in user-friendly language? Does the U.S. *require* unfriendly language to be used?
Why should it when only the UK requires user-friendly language? American drafting style does not require user-unfriendliness, but it favours functional complexity (have you ever read the GPL?).
Moreover, why does CC consider the licenses consumer contracts? A mere consumer doesn't need the license to view the work.
I don't speak for CC (what gave you that idea?). At least in the UK, the definition of consumer is extremely broad, it is someone who is acting outside of his/her normal business. Case law has given us plenty of examples of companies and even local government being considered consumers. So it makes a lot of sense to draft these licences following consumer rules, as almost certainly it will end up applying to consumers. Besides drafting, consumer contracts are subject to stringent unfair terms rules in Europe, so our warranty waivers have to be worded differently than what you will find in American licences.
I cannot speak for other jurisdictions though, but this serves to further the case for local porting and translation, at least in the UK.

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.
And nobody said that they do! However, in the case of disputes, you need to be able to bring an action somewhere, and better to bring it in your local court than having to sue somewhere else. In my opinion, it is easier to establish right away choice of law and jurisdiction clauses with a local licence. Legal security and all that.


--
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law Old College, South Bridge Edinburgh EH8 9YL
Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://www.law.ed.ac.uk/ahrb/
http://technollama.blogspot.com/





Archive powered by MHonArc 2.6.24.

Top of Page