Development of Creative Commons licenses

[Fruggo <fruggo AT gmail.com>]

Hello everyone,

I'm new to this list, so chances are that I'm saying things now that have already been said by others. I apologies for that. Please say so if my post is in anyway inappropriate.

I'm responding to the request that was posted on the Wikimedia Commons mailinglist, about the CC 
3.01 license. I would like to place some comments on the draft. For the record: I am a Dutch lawyer, but my specialty is not copyright law. 

In previous discussions about the orginal (3.0) version I was led to believe that it the license was meant to facilitate authors who couldn't wave moral rights. With the license, it was possible for those authors to put the work under a free license. The option of maintaining moral rights is important because in some jurisdictions it is not possible to put your work under a free license if that means that you give up your moral rights (because, legally, you can't give them up, what would mean that the license is invalid in that case). When I read the modified license text (
3.01), it sais that when the jurisdiction aknowledges moral rights, the user of the work has to submit to those moral rights. That is more restricting than necessary: only when the jurisdiction makes it impossible for the author to waive moral rights, the user should have to aknowledge these moral rights. Else, the 3. licence is unnecessarily more restricting than (for example) the 
2.5 version. On the other hand, the 3.01 version makes it possible for the author and the user to agree in writing that the author waives his moral rights. But that was the problem in the first place: the author can't (in some jurisdictions) legally waive his moral rights so he can't 'agree in writing' that he does. That would mean that the 
3.01 version is as legally impossible as the 2.5 version (that is, in the jurisdictions where moral rights can't be waived).

Another aspect I'm wondering at is what is allowed when there are more jurisdictions applicable. The article suggests that an author gains moral rights in some jurisdictions, where he hasn't got them in his own country (jurisdiction). This is caused by the part "jurisdiction in which the moral right of integrity exist". If that juridisdiction is the jurisdiction where the work is used, than suddenly moral rights have to be respected although in his own jurisdiction, the author might not have moral rights at all. I'm not sure that's the intention of the license.

I hope these comments will be of use to you.

Greetings,
Fruggo