Development of Creative Commons licenses

[melanie dulong de rosnay <melanie.dulong-de-rosnay AT cersa.org>]

Hi all,

My concern as CCi community member is to avoid exporting a moral rights standard in jurisdictions where there are no moral rights.

My concern as CC France legal lead is to ensure some legal security, ie propose licenses which don't imply that authorizing/creating derivative works can be a waiving/violation of moral rights (illegal for licensor/licensee in my jurisdiction).

As I pointed to CCi fellows when the discussion started on introducing moral rights clause in 2006, a possible solution to avoid this risk would have been to not address moral rights and leave national jurisdictions and courts decide. But other countries needed to have them addressed.

2.0 France version did not mention moral rights because a CC license, as any license or contract, applies after applicable law.

The french FAQ simply recalls that any claim on moral rights would be solved by the judge.

I agree that current wording is not very clear and Andy, I'm sorry your proposal has the same problem than the original: the sentence is too long and too long sentences can lead to comprehension (if not interpretation) issues.

To bring some clarity, what about adopting the same phrasing methodology we introduced for collective management?

For the avoidance of doubt:

i. In those countries which do not have moral rights, nothing happens.

ii. In those countries where moral rights cannot be waived, nothing happens.

iii. In those countries which have waivable moral rights or where it is possible to not assert them, the licensor waives or does not assert them

(and maybe as Ignasi suggested, lucky i and ii countries could thus stick with 3.0 number as the clause has anyway to be rewritten for each national jurisdiction ;-)

thanks,

melanie

Le 18 oct. 07 à 13:57, Andy Kaplan-Myrth a écrit :

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

------------------------------------------------

Faculty of Law : Faculté de droit

University of Ottawa : Université d'Ottawa

57 Louis Pasteur Street

Ottawa, ON  K1N 6N5

Canada

t. 613/562-5800 x3206

f. 613/562-5124

e. techlaw AT uottawa.ca

w: http://www.commonlaw.uottawa.ca/tech

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