Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Gisle Hannemyr wrote:
> The license is a legal document, and is supposed to be lawyer-readable
> (as opposed to human-readable).  In the present "unported" 3.0 text,
> the interesting bits in the "moral rights" clause reads:

[...]

> In his Oct. 11 letter ( http://creativecommons.org/weblog/entry/7718 ),
> Lessig writes:
>    "Despite this intent [to leave moral rights untouched], some -
>     especially within the Wikipedia community - have read this
>     clause to mean not that moral rights are untouched, but that
>     moral rights are being enforced by the license. That was not
>     our intent."
> 
> I understand that this misunderstanding may be a problem.
> However, the present clause is (IMHO) clear enough.
> Do we need to amend the license text because "some" people
> have problems comprehending?
> I think not.

ISTM that the issue is that the CC license mixes "descriptive" and
"prescriptive" clauses without drawing a clear distinction.

In some cases you want the text to say what the desired state that the
licensor wants to achieve should be. In others, you want to warn the
licensee of the actual effect that results in various jurisdictions.
As is, the CC licenses mix these kinds of clauses rather freely.

When there is only one jurisdiction, there isn't much distinction,
because the results are very predictable, and thus the plans are based
upon them. But with multiple jurisdictions, the situation becomes more
complex and it's very muddled to have these two distinct roles intermingled.

The question, in the end, isn't so much whether the licensee is confused
(because an external document can remedy that), but whether a judge
would accidentally interpret "descriptive" clauses as "prescriptive"
ones -- thus resulting in unintended effects.

The Moral Rights / Integrity clause has that problem, IMHO. In MR
jurisdictions, it's basically meaningless as a restriction (it restricts
only that which is already restricted), so it is clearly descriptive.

HOWEVER, in non-MR jurisdictions, the clause may be read as an
additional license term -- because such limitations may very well be
permissible under law as "conditions for use". Thus, in non-MR
jurisdictions, a clause which was intended only as description, may well
be interpreted as prescription -- because it does make sense if
interpreted prescriptively (Even though it is Evil(TM) to define license
terms in one jurisdiction based on statutes in another, I can't see any
reason it wouldn't be legal to do so).

I think this is where the concern about exporting Moral Rights laws to
non-MR jurisdiction comes from (at least, I know it is what makes *me*
fear it).

Cheers,
Terry

(Just a license user).

-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com