Development of Creative Commons licenses

[Andy Kaplan-Myrth <techlaw AT uottawa.ca>]

Hi all,

I'm one of the joint Project Leads in Canada, where our Copyright Act 
includes moral rights. We are working on versioning to 3.x. I just made 
the recommended 3.01 changes to our draft, and that process raised some 
questions.

First of all, here is the resulting paragraph in my draft -- very 
similar to how the unported draft 3.01 clause reads:

> Except as otherwise agreed in writing by the Original Author, in
> those jurisdictions in which the moral right of integrity exists and
> by operation of local law constrains the freedom to adapt or collect
> licensed Work, if You Reproduce, Distribute or Publicly Perform the
> Work either by itself or as part of any Adaptations or Collective
> Works, You must not distort, mutilate, modify or take other
> derogatory action in relation to the Work which would be prejudicial
> to the Original Author's honour or reputation, or use the Work in
> association with a product, service, cause or institution to the
> prejudice of the Original Author's honour or reputation. Where
> Licensor is the Original Author of the Work, Licensor agrees that
> where the exercise of the right granted in Section 3(b) of this
> Licence (the right to make Adaptations) could violate the moral right
> of integrity of the Original Author, the Licensor will waive or not
> assert, as appropriate, this Section, to the fullest extent permitted
> by the applicable national law, as long as You do not distort,
> mutilate, modify or take other derogatory action in relation to the
> Work that would be prejudicial to the Original Author’s honour or
> reputation, so as to enable You to reasonably exercise Your right
> under Section 3(b) of this Licence but not otherwise.

There are two sentences. My reading of the first is that it restates 
moral rights that the original author already has (in those 
jurisdictions where they have them, that is) -- subject to any written 
agreement.

The second sentence says that where moral rights may be violated by the 
creation of adaptations, the original author/licensor agrees not to 
enforce "this Section", being the moral rights section of the CC licence 
just to allow non-moral-rights-infringing adaptations of the work.

So I guess I have two questions:

First, since the first sentence basically restates existing moral rights 
if any, could it be left out completely? What does it contribute? On my 
reading, it only contributes:
  a. the qualification that the clause only applies in jurisdictions
     with moral rights; and
  b. the possibility of a written agreement outside the CC licence.

Second, what does the promise not to assert "this Section" mean in the 
absence of a new right? Is this second sentence actually intended to 
provide a promise on the part of the Original Author not to assert their 
moral right of integrity (so as to enable the licensor to reasonably 
exercise their right to make adaptations but not otherwise)?

I'm tempted to reduce the entire provision to something like this:

<proposal>
f.	Except as otherwise agreed in writing by the Original Author, in 
those jurisdictions in which the moral right of integrity exists and by 
operation of local law constrains the freedom to adapt or collect 
licensed Work, where Licensor is the Original Author of the Work and 
where the exercise of the right granted in Section 3(b) of this Licence 
(the right to make Adaptations) could violate the Moral Right of 
integrity of the Original Author, Licensor agrees to waive or not 
assert, as appropriate, the Moral Right of integrity, to the fullest 
extent permitted by the applicable national law, as long as You do not 
distort, mutilate, modify or take other derogatory action in relation to 
the Work that would be prejudicial to the Original Author’s honour or 
reputation, so as to enable You to reasonably exercise Your right under 
Section 3(b) of this Licence but not otherwise.
</proposal>

Sorry to complicate the discussion with a new proposal!

Cheers,
Andy

--
Andy Kaplan-Myrth LL.B., M.A.
Manager, Law & Technology, University of Ottawa

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