Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

While Jenga is a fun game  but I don't want to play it with multiple layers of works, removing say one remixed image in a montage art work filmed in a movie, because of an ex post facto decision by one contributor.

By contrast removing attribution to 'to the extent possible' is less burdensome. It is also very much more predictable and manageable.

On Apr 7, 2012 10:11 AM, "Gisle Hannemyr" <gisle AT ifi.uio.no> wrote:
>
> 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] http://lists.ibiblio.org/pipermail/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).

I read it as an ingenious solution that enables a Licensor to mitigate the impression of endorsement that attribution might give, while enabling those who rely on the CC licences to be able to build on a work without the prospect of having their work suddenly rendered dysfunctional at some future point. As a solution it protects two sets of interests, the interests of the first author and the interests of subsequent authors.

>
> 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.
It is worth noting that despite this there isn't a moral rights provision for all works except movies in the US.
Its also worth noting that in jurisdictions with justiciable fundamental rights that moral rights have to be interpreted in accordance with rights such as freedom of _expression_.

How these jurisdictions should resolve this tension is by no means clear, especially as although there is only a global agreement on a minimum moral right, not on fully fledge droit d'auteur
>
> 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.

There is a wide range of ways that different jurisdictions deal with moral right, some allow waiver, some don't allow waiver. There are different views on what constitutes appropriate remedies.

Given that variety it makes sense not to insist on a particular approach, especially since the law around moral rights is peculiarly unsuited to non traditional works such as computer games, collaborative works and works intended by their authors to be reworked.

>
> 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 you can! In juridictions in which moral rights cannot be waived you can use them to do so.
> 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".

Because the burden of removing attribution is a lot less of a burden than the burden laid on every second or third or fourth, or fifth author that we may at any time be prohibited from distributing and using the derivative works that we have built on the first work, relying on the licence given by the preceding authors.

What might offend a an unknown authors sensibilities is just too unpredictable.   

The problem is considered at length in Michael Heller's work on how rights schemes with multiple rights holders that allow any rights holder to hold out against schemes that will benefit all rights holders result in gridlock.

As copyright develops the problem of multiple holdouts in collaborative works will need to be addressed in legislation as well as licences. It may be that the solution adopted by the CC licences will be adopted in legislation as it develops to apply better to collaborative works.

> 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

It would certainly make the licences simpler because the licences would be revocable at the will of the Licensor, so they could be rewritten as "You may do the following.. until you receive a notice telling you to stop using the work"

I don't think many people are interested in building on or even relying on licences that are revocable at will.
> --
> - gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
> ========================================================================
>    "Don't follow leaders // Watch the parkin' meters" - Bob Dylan
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