Development of Creative Commons licenses

[Diane Peters <diane AT creativecommons.org>]

See inline, below.  Thanks for your comments, Kent.

On Wed, Apr 11, 2012 at 2:08 PM, Kent Mewhort <kmewhort AT cippic.ca> wrote:

IMO, the overall direction of this license looks to be shaping up
nicely.  

Good to hear!  Keep the constructive feedback coming.

 

A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

Interesting point.  I’d like to know if this is the case where moral rights are thought to be the strongest, such as France.  Again, “reasonably exercise” is where we left at least that part of the discussion in 3.01 (http://creativecommons.org/weblog/entry/7718).  But we did think about it and kept the modifier because it seems/ed reasonable (no pun intended) to include it to reduce risk of unenforceability of the provision in places where unqualified, blanket grants may be frowned upon.  That said, if the element is indeed baked into the notion of moral rights already, removal may be appropriate at least on that ground.  We’d be interested in hearing others thoughts on this. 

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  

Leaving them intact/reserved (and hence exercisable by the licensor in her discretion to prevent certain reuses that licensees expect given other license permissions) leaves us exposed to the criticism that we are overreaching, and licensees exposed unnecessarily and possibly unfairly for exercising the very rights they think they’re able to exercise.  If fully reserved, the very reuse expected by licensors could be impeded given the resulting uncertainty.  It is interesting to note that in several of the jurisdictions with ported 3.0 licenses, the approach of a general waiver has already been adopted (see blog post announcing draft:  http://creativecommons.org/weblog/entry/32157).  So while moral rights in 3.0 unported are reserved, it's already that case in a fair number of ports that the rights are waived where possible.

 

Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

To be clear, the waiver of moral rights (when/if even permitted by law) in 4.0d1 coincides and aligns with the economic rights granted.  No more, no less, except where the rights cannot be waived (or not asserted) at all, in which case less.

 

Some other licenses require blanket waivers, even (possibly) some of our 3.0 ports (see the blog post link, above).  It may be true that a blank waiver is simplest for purposes of the license, but whether a blanket waiver is widely enforceable and whether it is necessary to give the licensee what s/he needs to use the work as permitted is another matter.   In short, we have been hard pressed to find a reason to require waiver of moral rights beyond those necessary to exercise the permissions granted by the license.   But we’re eager to hear if we’re missing something on either of these points, or should be thinking about these in another way.

2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
exercise...".

Thanks for the suggestion, we’ll take a look at that for d2. 

Attribution
------------

3. The scope of "any reasonable manner" seems a bit too broad,
especially given the importance and multi-faceted purpose of
attribution. I liked the old "at least as prominent as" provision,
though I can see how this can cause problems in some contexts.  How
about "any reasonably prominent manner", or even "a reasonable manner
consistent with, to the extent feasible, any customary attribution for
the medium or means You are using".

On this, recognize that the original purpose of the “at least as prominent” in 3.0 is to ensure that all contributors received “equal” billing, though as some have pointed out that's not always fair if some contributions are more significant than others.  As you’re suggesting it be revised, it seems less about equality and more about prominence of attribution generally, which feels different. Is that difference intended?

 

We’ll go ahead and add this specific proposal on the 4.0 attribution page on the wiki, and hope others will weigh in on the advisability of the modification.

 

New definition of to "Share"
-----------------------------

4. If we end up with no ports, this definition may not be sufficient to
equally cover the intended activities in all jurisdictions. For example,
in Canada, we have no "making available" right as of yet and the right
to "communicate to the public" by telecommunication arguably doesn't
cover one-to-one downloads through services such as iTunes (an issue
which is presently before our Supreme Court).  It might be advisable to
insert an "or distribute" in there.

You comment provides a great opportunity to clarify an important dimension of the license.  Section 2, not the definition of Share, contains the grant of rights to licensees, covering actions otherwise reserved to the Licensor, including distribution rights. “Share” on the other hand is the event that triggers the the license conditions.  Said differently, only if the licensee both exercises the rights granted in Section 2 and shares the Licensed Work (or an Adaptation in licenses allowing their creation) does the licensee have to comply with the license conditions in Section 3.   For those familiar with GPLv3, you can think of “Share” as the rough equivalent of “convey” in this regard.

 

With that in mind, since Section 2 expressly grants the right to “distribute” the Licensed Work, is your concern addressed?

 

Choice of Law
--------------

5. There hasn't been much discussion on this, but I think deserves
careful consideration in light of the move towards
internationalization.  Given the different laws on fair dealing,
copyright terms, and other aspects of copyright law, it creates a lot of
uncertainty to simply leave choice of law to local conflict of law
rules.  I think something analogous to the U.K. government license could
work well to tighten up certainty: "This licence is governed by the laws
of the jurisdiction in which the Information Provider has its principal
place of business, unless otherwise specified by the Information Provider. "

We are framing this issue for public discussion shortly.  Look for that prompt shortly.  

 

Alright, that's all for now :)!

Kent
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Diane M. Peters, General Counsel
Creative Commons
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