Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Jordan S Hatcher wrote:
> 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.

Exactly. I have no objection to an attribution requirement (neglecting
for the moment the issues that drew brought up recently about the
methods required).

The 2nd point is extremely vague and overly broad: what exactly *is*
"derogatory treatment". In the broadest sense it could simply mean "to
be disagreed with", which would obviously be very objectionable.

> 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.

Yes, and these rights will exist in those jurisdictions no matter what
I or CC think of them. My point is moot for people who live in such
jurisdictions.

However, lots of people *don't* -- for example, the 300 million people
in the USA. Even if two jurisdictions *are* "moral rights"
distributions, they may differ in detail about which rights are
retained and which aren't (or in how "derogatory treatment" is defined).

> So the approach has been to keep them.

So here's the deal. The license says the author retains "moral rights".

Within moral rights jurisdictions, this would be true with or without
the license statement. So the statement has no legal effect. So why is
it there?

What about in non-moral-rights jurisdictions?

HERE'S THE POINT>>>

Doesn't the fact that the license says that the author retains "moral
rights" mean that whatever rights they would retain by *statute* in
moral rights jurisdictions are kept by *license* in non-moral-rights
jurisdictions (at least to the extent permitted by law)?

What happens when I, as a US licensee, create a derivative of a work
released by a Spanish licensor? Say I do something which is perfectly
legal under US law, but which the licensor objects to? If that something
is covered by Spanish moral rights law *only*, it won't affect me. If it
is something that I am permitted by statute in the US to do, it likewise
won't affect me (parody protection).

But what if it is something that in the US can be withheld in a license,
but would not be by statute? The author could argue that his CC license
binds me to obey Spanish moral rights statutes here in the US, because
it is *also* covered by the CC license. (GOTCHA!!!)

IOW, the CC license would be invoking *Spanish* moral rights law by
reference to define a license term applying under *US* jurisdiction.

IMHO, that should never be allowed to happen.

So I'm asking -- *is* that what happens with the 3.0 wording? Or is
there some trick that I'm missing?

> 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.   

IMHO, the *sensible* course is to *inform*, not to *enforce*.

In programming terms, it's the difference between "==" and "=": are you
*saying* it's so, or *making* it so?

ISTM that the goal of *informing* licensees of the effect of a license
is distinct from the task of *defining* that license. This appears to
be even more important when the effect depends extensively on the
statutory environment (as it does in this case).

As I understand it, that informational role is supposed to be played
by the *deed*, not the *legal code* of the CC licenses.

Or maybe there needs to be a third text -- an informational *commentary*
on the CC license which makes it clear that it intends to *describe*,
not *define* the effect of the license. This would also be a great place
to talk about photo releases, the effect of SA on "synchronization" or
"association" of works with other works, and other things that surprise
many licensors or licensees.

I hope this clarifies the point.

This isn't about attribution, nor is it about excessive wording, nor am
I arguing that informing licensees about statutory effects is wrong, nor
am I making nationalist claims about the superiority of US copyright
(actually I have yet to meet a modern copyright regime I genuinely
like!). It's about whether the license wording is EXTENDING the
jurisdiction of such laws, by virtue of using them to define its terms.

This is a problem precisely because these are international licenses.

It should also be noted that while the moral rights issue may be the
biggest problem of such a practice, there are others -- such as the
photo-release issue, or differing jurisdictional definitions of how
"commercial use" should be determined, or about the legal definitions
of "technological protection measures" or "digital rights management".

Cheers,
Terry

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com