Development of Creative Commons licenses

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

On 2 Oct 2007, at 17:34, Terry Hancock wrote:

> Jordan S Hatcher wrote:
>
> > 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).

As I mentioned, the US *does have some moral rights for visual  
artists that is present in VARA. Other rights covered by derogatory  
treatment are covered to some degree in the US under unfair  
competition or trademark law.

> > 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?

This is incorrect. For example, the right to object to derogatory  
treatment or to be identified as the author of the work must be  
asserted in the United Kingdom.


> 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?

See 8f.
http://creativecommons.org/licenses/by/3.0/legalcode


~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