Development of Creative Commons licenses

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

Le 18 oct. 07 à 23:11, paola.dimaio AT gmail.com a écrit :

Hi Melanie

The french FAQ simply recalls that any claim on moral rights would be solved

by the judge.

When I asked what advantages does cc have over any other copyright

license, I was answered that it avoids the author having to pay

expensive lawyers fees to draft licenses. I think in your sentence

above you imply that we have to go to court to assert a basic

statutory right. It does not sound right Judges and barristers are

much more expensive than lawyers :-).

you can solve a conflict through negotiation, or at court

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

I think the above is fine in principle. except that 'have moral

rights' 'nothing happens' need to be defined with more precisions

(using appropriate legal terminology )

of course, this was not intended to be legal phrasing!!

in those countries where the copyright law does not include explicit

and statutory provisions for ....moral rights... specifically blabla

etcetera

However,  the Berne Convention, is universal rule in international

copyright law, which means irrespective of whether moral rights or not

are contemplated by local legistlation,  when it comes to

international copyright (when the work is used in another country)

moral rights exist, and cannot be waved. But a license can simply

state that author grants specific permission so and so,(to manipulate,

change and otherwise modify and transform the work) moral rights

notwistanding.

Somehow I see lawyer getting more business  cc notwithstanding

cheers

PDM

(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

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

_______________________________________________

cc-licenses mailing list

cc-licenses AT lists.ibiblio.org

http://lists.ibiblio.org/mailman/listinfo/cc-licenses

_______________________________________________

cc-licenses mailing list

cc-licenses AT lists.ibiblio.org

http://lists.ibiblio.org/mailman/listinfo/cc-licenses

-- 

Paola Di Maio

School of IT

www.mfu.ac.th

*********************************************

_______________________________________________

cc-licenses mailing list

cc-licenses AT lists.ibiblio.org

http://lists.ibiblio.org/mailman/listinfo/cc-licenses