Development of Creative Commons licenses

[Gisle Hannemyr <gisle AT ifi.uio.no>]

On 05.04.2012 19:50, Francesco Poli wrote:
> Hello everybody,
> Section 3(a)(1) of CC-by-nc-sa-v4.0draft1 includes the following part:
> 
> [...]
>>     You must, to the extent reasonably practicable, remove the
>>     information specified in (i) – (iii) above if requested by
>>     Licensor.
> [...]
> 
> where information specified in (i) - (iii) is basically, the author's
> name or pseudonym, the Attribution Parties, and the title of the Work.
> 
> I'm still not convinced that this clause meets the Debian Free Software
> Guidelines. See my previous comment [1].
> 
> [1] https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-January/006602.html
>
> Since I don't think that a license can (allow a licensor to)
> forbid an accurate credit and meet the DFSG at the same time,
> I recommend that this clause be dropped entirely from CC-v4.0
> licenses

I too think this is a very unfortunate clause.

However, if I've understand its rationale, this clause is put in
there as a sort of "quick fix" because there has never (before)
been a clause in the license that deals properly with what is
known as "moral rights" (Europe) or "author's rights" (USA).

To make it clear what these rights are, I refer to the Berne Convention
Article 6bis:
  http://www.law.cornell.edu/treaties/berne/6bis.html
Article 6bis gives me, as an author, the moral right to object to any
  "distortion, mutilation or other modification of, or other derogatory
   action in relation to, the said work, which would be prejudicial to
   his honour or reputation."

[The Berne convention, btw., is adopted by every country in the world
 that recognises copyright (including the USA), so I think that having
 the generic license cover the same rights as is covered by the Berne
 convention would greatly simplify the porting of the generic
 license to different jurisdictions, as they are all Berne signatories.]

As an author, I think this is a very important right to retain.
I have never understood why the Creative Commons in the past have
insisted on being "neutral" with respect to moral/author's rights,
and believe that v4 may be a good opportunity to move away from
the "neutral" stance and to a more pro-active one.

Obviously, if some  political or religious group that I really
despise started to distribute copies of one of my works to promote their
nefarious cause, I want to be able to tell them to stop
doing it!

And I can't really see *why* a CC licenses should not grant me the
right to revoke a license if I think a license-taker is hurting
my honour or  reputation, simply by sending them a message telling
them so - in the same manner that the present v4 draft grants me the
right to send them a message where I am only allowed to tell them:
"Please continue to use my copyrighted work - just remove the
 attribution".

I therefore propose that the clause Francesco Poli refers to
(where an author can forbid a specific license-taker to use accurate
credit) in removed from the draft, and *at the same time* the
following paragraph is added to section 5:

   If the Licensor finds Your use or adaption of the Licensed Work to
   be prejudicial to his honour or reputation, he can serve you a
   notice terminating this License.  In that case, You must get
   express approval from Licensor if you seek new rights to use the
   Licensed Work under this Public License.

I think this should be added to all variants to the license, but
at least to the ND version. (Authors who use the ND-clause seems to
be those that are most concerned about their honour and reputation.)

Adding provisions for enforcing moral/author's rights also means
that we can simplify the license even further, by removing most
the rather awkward language that now make up clause 2(b)(i).
We can just remove the weird portions where the author waives
or promises to not assert Licensor's moral rights - as this
language is no longer necessary if the license empowers authors
to enforce those rights.

I think this amendment shall strengthen the license and make it
more appealing to creators.  One of the most frequent objections
I hear when I lecture about CC is that the current version of
CC (v3) has no real provisions for letting Licensor enforce his
or her moral rights or author's rights.
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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