Development of Creative Commons licenses

[Jordan S Hatcher <jordan AT opencontentlawyer.com>]

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.

Thanks~

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
IP/IT Blog: http://twitchgamer.net

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