Development of Creative Commons licenses

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

On 1 Oct 2007, at 03:59, Terry Hancock wrote:

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

The US does cover many of the moral rights, just not as 'moral  
rights'. Congress made a number of changes to, at least on paper,  
make the US meet the obligations of Article 6bis of Berne (moral  
rights) when the United States joined Berne on March 1, 1989.

Also should mention the Visual Artist Rights Act (VARA) gives certain  
moral right to visual artists in the United States.

The incentive theory of copyright is not limited to the United States  
but in fact goes back to the Statute of Anne in the UK. As I  
mentioned earlier in this discussion, moral rights (generally) are  
not very strong in Commonwealth jurisdictions and former UK colonies  
(such as the US) because they all generally take  the same incentive- 
based approach.

The other approach is an 'author's rights' approach, which leads to  
strong moral rights because (to simplify) it is based on the idea of  
ownership of what you create because it is a part of you. That's why  
in author's rights systems (Germany, France, et al) you have the idea  
of 'author's rights' and 'neighbouring rights'. Neighbouring rights  
are copyright over areas where there is no creative expression, such  
as broadcast rights, or a producers right to a film (though I have  
argued otherwise as to film producers). These are the areas of so- 
called entrepreneurial copyright.

And to return to some other points made in this discussion, there are  
two primary moral rights that we are dealing with:

1 - the right to be identified as the author
2 - the right to object to derogatory treatment

The first is an integral part of the CC licence -- it is the BY  
element. The second is the right that we have been discussing.

You could try to waive the right to object to derogatory treatment  
whenever possible. This is the approach in the ODCDBL
http://www.opencontentlawyer.com/open-data/open-database-licence/

You do have to realise though that there are many jurisdictions that  
these rights cannot be waived, and that for more creative works (or  
at least not databases) that authors might very well want and expect  
these rights to be present. So the approach has been to keep them.  
I'm not a big fan or a defender of the moral right to object to  
derogatory treatment, but this is really the most sensible approach.   
You must also keep in mind that these rights don't often go to court  
even in the jurisdictions that hold them sacred, as for an artist to  
do so would be in some ways commercial suicide.

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

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

Open Data Commons
http://www.opencontentlawyer.com/open-data/

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007