Development of Creative Commons licenses

[Javier Candeira <javier AT candeira.com>]

Terry Hancock wrote:
> David Maeztu wrote:
>> You´re right, but that´s needed because in many laws there are
>> protection for moral rights, such as in Spain:
<snip>
>> I agree it´s prone to misuse but it`s imperative in many jurisdictions.
> 
> Why is that imperative to include in the CC license?
> 
> According to what you write above, it will apply within Spain, whether
> the license mentions it or not (it isn't legal to remove this right).
> 
> But if the clause is included in the CC license, then you enforce this
> oddity of European law onto Americans as well. Normally we (in the US)
> do not recognize the idea of "moral rights" in a work (which is part of
> our general theory that copyright is not a 'natural' right, but rather a
> state-granted monopoly on an otherwise free activity -- copying
> information).

I like the USian view, and generally I have been against including any
reference to moral rights in the licenses. But I have changed my mind, and
now I think moral rights should be mentioned... in order to circumvent them.

See the difference between:

a) "you can do anything with my work"
b) "you can do anything with my work, and I further promise not to exercise
my moral rights to keep you from doing anything from my work".

Note: I am not a lawyer, so take these as statements of intentions, as
politically motivated I-wish-it-could-work-this-way licenses, not as they
indeed do work. Moral rights cannot be transferred or waived, but I think
they can be pseudo-waived and, from what I hear from my musician friends,
they rutinely are in traditional contracts.

So my point is that CC licenses should, in my opinion, engage in this same
kind of pseudo-waiving of moral rights.

Version a) might work in the USA and common-law copyright countries, but the
spirit of version b) is more powerful, because it makes it even more
explicit that you can do in Spain whatever you can already do in the USA
without my mention of moral rights. It means that you can do in Spain what
the US licensor wanted, and that you won't be sued in Spain by using in the
US some CC-ed material licensed by a Spanish author under the Spanish CC.

Something I have already expressed in this list is that the CC licenses have
the effect of leveling different countries' regulations, and creating an
international norm of sorts. CC licenses harmonise copyright norm
"downwards" (towards more permissiveness), even as the WIPO harmonises
international copyright law "upwards", towards more strictness.

Mentioning moral rights and pseudo-waiving them where applicable serves
Creative Commons better.

> It doesn't seem to me that reflecting such jurisdiction-specific
> non-copyright laws is that helpful.

It does if it lowers the compliance burden on the licensee, as in my example
b) above. Of course, I agree with you if by "reflecting" Moral Rights you
would mean "repeating what the law already says and reserving them for the
author".

Cheers,

Javier