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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james AT grimmelmann.net>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: [cc-licenses] Differences between the anti-DRM clauses in the U.S. and unported licenses
  • Date: Mon, 04 Dec 2006 11:52:31 -0500

Francisco and I had noticed, in our discussion about the text of the proposed wording changes to the anti-DRM clauses, that there were some differences betewen the U.S. and unported versions. Based on some off-list discussions and some research, I can report two important things:

First, the lack of the word "effective" from the U.S. version (which says "technological measures" where the unported version says "effective technological measures") reflects the different terms used in the DMCA and in the WIPO treaties (the Copyright Treaty (WCT) and Performers and Phonograms Treaty (WPPT)). This makes sense. The generic/unported license tracks the terminology used by the major international treaties on the issue. The U.S. version tracks U.S. law. The difference is not otherwise significant, and I expect that the two versions will be applied identically.

Second, the proposed U.S. license and the proposed unported license use many different phrasings to talk about the rights protected by the anti-DRM clause. I don't think that there is any intended semantic difference among the various phrases, which makes the divergence surprising.

U.S. 4.a:
"to exercise of the rights granted to that recipient under the terms of the License"
"to exercise the right granted to them under the License"

U.S. 4.b:
"to exercise of the rights granted under the License"
"to exercise the rights granted to them under the terms of the License"

Unported 4.a:
"to exercise the rights granted to that recipient under the terms of the License"
"to exercise their rights granted under the License"

Unported 4.b:
"to exercise of the rights granted under the license"
"to exercise their rights granted under the License"


A -- Three of the phrases insert "of" after "exercise," which seems like a drafting error.
B -- The U.S. license once uses "right" instead of "rights," which also seems like a drafting error in context.
C -- Each license uses "to that recipient" once; two of the U.S. phrases use "to them" instead; the remaining four omit this phrase. There is no clear pattern to which use which.
D -- Three of the phrases say "under the terms of the License;" the remaining five say "under the License." There is again no clear pattern as to which use which.


These discrepancies have been brought to Mia's attention and CC will be giving the exact wording another very close look.

James




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