Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

I share the concerns that Douglas Campbell has expressed about the difficulty 
of a non-binding norm project.  Indeed, I'm concerned about the idea of a 
"group" or a "community" being a relevant actor for purposes of setting norms 
about the use of public-domain material.  Any such norms should flow with the 
group or community, not with the work itself -- because that would imply that 
the group/community could and should project its norms beyond itself, to 
anyone who comes across the work.  Part of the point of being in the public 
domain is precisely that one may take a work from one normative community to 
another, changing its context, its relevance, and its meaning.  That is, 
there are times when it's actually very important to insist on one's 
individual, stand-alone, atomistic, answerable-to-no-one legal rights, and 
the public domain can be a powerful source of such rights.  

I understand the attempt to get around those concerns by emphasizing that the 
norms are non-binding.  But this approach also swims in ambiguity; are the 
norms meant to have an effect on potential users or not?  That's going to 
vary from situation to situation, and confusion is likely to result among 
many possible users.  I think it would be better to release these norms as 
possible best practices for groups and communities and groups to adopt for 
themselves, and not to pitch them as applying to anything so broad as all 
"providers and users of material in the public domain."

I would also add:

It would be better not to say that the copyright holder "failed to register 
or renew copyright."  Instead, "did not register or renew copyright" would be 
less normative; "failed" suggests that they should have.  This is the same 
kind of rhetorical slant that comes from the phrase "fall into the public 
domain."

What gives the "provider" of public-domain material. in general, the moral 
right to ask for "respect" in the form of, say, no modifications?  There will 
be some situations -- families disclosing an author's papers, for example -- 
in which respect seems like an appropriate principle.  But there will be many 
others -- say, libraries digitizing 19th-century public-domain books -- in 
which it doesn't make as much sense.  I doubt that this can be a universal 
norm.  ("Respect" in the form of clearly identifying any modifications seems 
more likely to universalize.)

"Contribute discoveries back" is too broad.  If I make a movie based on the 
plot and characters of an out-of-copyright play, which transposes the setting 
to outer space, puts all of the dialogue in modern technical jargon, and is 
filled with special effects, people can fairly disagree as to whether I 
should also place the movie into the public domain.  There is legitimate 
principle here, but it is much narrower than the proposed norm.

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As for the mark itself, Luis Villa's point is well-taken.  In general, the 
PDM **needs** to reflect the fact that it is an assertion about the work, 
made by a third party.  The "No Copyright" clause at the top should, I think, 
explicitly say, "The person who identified this public domain work believes 
that it is free of restrictions under copyright law ..."  It would be fine to 
tweak the language so that it doesn't create any legally enforceable 
warranties.  But the key point is that the PDM takes the form "A says that 
work X is in the public domain."  (Does the metadata allow for multiple 
identifying parties?)  CC0, as Luis points out, instead takes the form, "C, 
the copyright owner, has placed work X in the public domain."

James