Development of Creative Commons licenses

[Henri Sivonen <hsivonen AT iki.fi>]

On Oct 12, 2006, at 18:57, Discussion on the Creative Commons license  
drafts wrote:

> Henri wrote:
>
> > I don't really know the details, but my understanding has been that
> > the KJV is in the Public Domain outside the U.K. (at least outside
>
> Pre-WIPO, that would have been the case.  Post-WIPO, there is an
> obligation on the part of each signatory to honour the copyright on
> publications in the other signatories.   Whether or not the Crown will
> seek to enforce its copyright outside of the British Commonwealth is a
> currently unanswerable question.

I had thought that WIPO requires members to grant the same level of  
copyright monopoly to foreign copyright holders as they grant to  
domestic ones (Berne Convention article 5 paragraph 1). That is, if a  
country has a life plus 70 rule, it has to apply at least life plus  
70 to the KJV (but life plus 70 puts the KJV in the Public Domain).

> > To me, it seems that NC is such a lost opportunity for Free  
> > Culture (as in Free Software)
> > that it is a shame if CC-by-sa isn't even tried first.
>
> CC-BY-NC-SA is perceptually less scarier that CC-BY-SA.

In knee-jerk perception, yes. However, people who understand the  
domain through experience with Free Software tend to view CC-by-nc-sa  
as scarier than CC-by-sa.

> > > The Red Cross can use it in a course, but the Salvation Army can  
> > > not use it, even if teaching the
> > > same course, using the same instructor.]
> > This should ring major alarm bells that NC is a bug in CC!
>
> People are learning what a commons is.

By creating NC, CC itself is making the learning phase hard. Besides,  
we might not get out of the learning phase unless CC has the guts to  
say to its NC "institutional partners" that NC was a mistake and  
needs to be deprecated and rebranded so that it doesn't enjoy the  
same brand image as the licenses without NC.

> > > > I find it strange that MIT is pushing NC and all the ambiguity it
> > > For MIT, NC makes perfect sense.
> > It doesn't. They don't get the network benefits from combining their
> > works and Free as in Free Software copylefted works produced by  
> > others.
>
> I didn't think of it yesterday, but "Moral Rights" is probably more of
> an issue with them, that Collaborative Rights.  ND covers Moral Rights
> better than NC, though. OTOH, brand name/image isn't covered by ND,  
> but
> is by NC.

MIT is itself in Massachusetts, U.S.--not in France or somesuch Moral  
Rights place. They may want to implement Moral Rights to please their  
author without a statutory obligation to do so, though.

Moral Rights is never a proper argument in favor of NC. (It is an  
argument in favor of ND, though.) In jurisdictions that recognize  
Moral Rights, the whole point having something called "Moral Rights"  
is that it is something other than the "economic rights". Therefore,  
by definition, NC doesn't deal with the moral axis of copyright but  
with the economic axis.

(Of course, the whole concept of Moral Rights turns out to be largely  
bunk if you can demonstrate that authors are willing to bend their  
artistic integrity in exchange for money. For example, in Finland the  
leadership of a collective music licensing organization has said that  
they "sell music like sausage": money talks and artistic integrity  
walks. Also, all the Finnish Supreme Court cases that my Moral Rights- 
related search terms turned up were really about the money and had  
Moral Rights violation thrown in an extra accusation.)

How does ND not cover brand/image but NC does? With ND, you can't  
change the work, so whatever brand image the work conveys stays that  
way. The only thing you can do is to put the work in an unfavorable  
context. With NC, there's a greater risk to the reputation of the  
original author, because others can distort the work itself even if  
they don't do it commercially.

I am aware of three Moral Rights:
1) The right to be known as the author of the work.
2) The right of not having one's work distorted or put in a context  
so that the artistic integrity of the work is violated.
3) The right of the author to visit unique works of art (paintings or  
sculptures) (s)he has created to study them later.

#3 is obviously inapplicable to literary works or any kind of digital  
works.

Personally, I think in #2 the artistic integrity of the *works* is  
mostly bunk (see above). However, I do think that harming the  
reputation of the *author* (as opposed to defiling the work) is a  
real issue. Paradoxically, #1 is about making it possible for the  
author to gain positive reputation, but the easiest way to avoid bad  
reputation for the author would be to publish anonymously and to  
forbid the revelation of the identity of the author.

So the question that remains is can modification of the work be  
allowed at all (commercially or not) without everyone whose input the  
result contains reviewing the result to see if they think it is  
harmful to their reputation. If the answer is "No", NC does not help.  
However, I believe the answer can be "Yes" if the derivative works  
are marked as derivative versions that weren't published by the  
original author. The problem there is that CC wants to keep CC-by-sa  
relatively simple and if you look at the GSFDL draft for the measures  
of protecting the reputation of the original author while still  
allowing derivative works without case-by-case permissions, the  
choreography is rather detailed. But that's still not an argument for  
NC, because NC doesn't protect reputation any more than the CC  
licenses without NC.

> > > Something that addresses the specific needs and concerns of those
> > > organizations.
> > That would make the situation only worse by putting CC deeper into
> > the non-free boutique license quagmire instead of repositioning CC as
>
> CC is trying to offer licences that are:
> * gratis ( NC-SA / NC-ND )

They aren't gratis for everyone.

> * libre ( SA )
> * gratis and libre ( BY-SA / BY-NC-SA / Developing Nations )

BY-NC-SA and Developing Nations are not libre and BY-SA does not need  
to be gratis.

> I'm not sure how the Sampling licence fits into that mix. [This is a
> licence selected by default, and not because it is the best for the
> proposed use.]

By "selected by default" do you mean "selected because of its name  
without reading it"?

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