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cc-licenses - Re: [cc-licenses] Lawsuit over Virgin Mobile's and Ethical Use

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Subject: Development of Creative Commons licenses

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  • From: Jordan S Hatcher <jordan AT>
  • To: peter.brink AT, Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] Lawsuit over Virgin Mobile's and Ethical Use
  • Date: Sun, 30 Sep 2007 10:53:40 +0100

On 30 Sep 2007, at 10:40, Peter Brink wrote:

jonathon skrev:

CC covers Moral Rights as well as can be expected, given that it is
not a concept that is found in most countries.

On the contrary, it is a concept found in most countries, in fact moral
rights are stipulated by the Berne Convention:

Article 6bis

[Moral Rights: 1. To claim authorship; to object to certain
modifications and other derogatory actions; 2. After the author’s death;
3. Means of redress]

(1) Independently of the author’s economic rights, and even after the
transfer of the said rights, the author shall have the right to claim
authorship of the work and to object to any distortion, mutilation or
other modification of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding
paragraph shall, after his death, be maintained, at least until the
expiry of the economic rights, and shall be exercisable by the persons
or institutions authorized by the legislation of the country where
protection is claimed. However, those countries whose legislation, at
the moment of their ratification of or accession to this Act, does not
provide for the protection after the death of the author of all the
rights set out in the preceding paragraph may provide that some of these
rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this
Article shall be governed by the legislation of the country where
protection is claimed.

Note however that Berne 6bis is not a part of Berne as incorporated into TRIPs and thus is only enforceable through Berne, which effectively means no enforcement. The parts of Berne incorporated into TRIPs can be enforced through the WTO.

Almost all jurisdictions following the copyright tradition, i.e. those following the UK common law tradition (commonwealth and other former colonies) have a pretty weak idea of moral rights. Jurisdictions following the author's right tradition (France, Spain, Germany, and so on) have stronger concepts of moral rights.

CC licences, despite having an 'unported' version, really come down to the law in an individual jurisdiction. There is no overriding international copyright law, as it is all based on a system of minimum standards and national treatment.



Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
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