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cc-licenses - Re: [cc-licenses] Moral rights, Attribution & Choice of Law

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Subject: Development of Creative Commons licenses

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  • From: Andres Guadamuz <anduril13 AT gmail.com>
  • To: pcreso AT pcreso.com
  • Cc: Development of Creative Commons licenses <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
  • Date: Sat, 14 Apr 2012 06:25:26 -0600

Hi,

pcreso AT pcreso.com wrote:

> However, CC is pushing the same licences for data, without indicating
> the difference between legislated moral rights for data & for creative
> works. I do not regard this as a responsible approach, especially with
> CC4 being openly touted as being more appropriate for data, and the CC4
> licence wording not addressing this issue to date.

I agree that moral rights are treated differently in various jurisdictions, including different treatment with how the law deals with data and software. However, I do not think that it's CC's responsibility to inform of this fact to its users, or to confuse authors with lengthy explanations of how the law deals with data specifically in NZ, Australia, the UK, or civil law systems.

The licence has to do only one thing with regards to moral rights. To the extent that it is allowed by law (and in many jurisdiction it is clearly NOT possible), the owner promises to waive and/or not assert their moral rights. That is done by the current draft in the best way possible. The wording could be slightly clearer to that extent, but it does what it says on the tin.

I am still unsure as to why you think that this should be treated differently even after reading your email twice. The objective is to make the licence as clear as possible, and any explanation about different ways in which jurisdiction deals with moral rights does not help to reach that objective.

Best Regards,

Andres


On 13/04/2012 22:17, pcreso AT pcreso.com wrote:
Hi Andres,

Some detail (hopefully not too much)...

Moral rights under CC apply well (generally) for creative works. I don't
have any issues in that regard.

However, CC is pushing the same licences for data, without indicating
the difference between legislated moral rights for data & for creative
works. I do not regard this as a responsible approach, especially with
CC4 being openly touted as being more appropriate for data, and the CC4
licence wording not addressing this issue to date.

As an aside: a data mashup can be based on some underlying data without
presenting any of that data in the final product. This is also a
situation very different from creative works. Data was used but is no
longer there as explicit content. How does CC apply? Attribution is
relatively straightforward, but what about inappropriate or misleading use?

In New Zealand the law is explained in this guide from the Copyright
Council:
http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105
<http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105>

The relevant section:
"Who has moral rights? Moral rights belong to authors of:
- literary works, including novels, screen plays, poems and song lyrics;
- dramatic works, including dance, mime and film scenarios or scripts;
- musical works;
- artistic works, including paintings, drawings, diagrams, maps, engravings,
etchings, photographs, sculptures and architectural works.

Moral rights are also enjoyed by directors of films made on or after 1
January 1995
(even though copyright is usually owned by film producers).

Creators of sound recordings and computer-related works have no moral
rights under
the Copyright Act."

Data is regarded as computer-related works, and those who release
datasets under CC enjoy no moral rights to protect against misuse or
misrepresentation of them or their data. Very different for those
releasing creative works. Where does CC warn of this possibility when
suggesting their licence be used for data?

In Australia, moral rights afford the usual protection, from
http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:

"Creators have the right:
- to be attributed (or credited) for their work;
- not to have their work falsely attributed; and
- not to have their work treated in a derogatory way.
...
This could include:
- distorting, mutilating or materially altering the work in a way that
prejudices the creatorʼs honour or reputation; and
- in the case of artistic works, destroying the work or exhibiting it in
public in a way that
prejudices the creatorʼs honour or reputation.
...
Moral rights apply to:
- literary material such as novels, screenplays, poems, song lyrics and
journal articles;
- artistic works such as paintings, drawings, architecture, sculpture,
craft work, photographs, maps and plans;
- musical works;
- dramatic works such as ballets, plays, screenplays and mime;
- computer programs; and
- cinematograph films such as feature films, documentaries, music
videos, television programs and television commercials."

But NOT data. Also, in Australia, moral rights are considered "personal"
and "individual" rights, and cannot be vested in institutions. Most data
is released by institutions, not individuals. Again, where does CC
responsibly explain this to potential users?

The UK Open Government Licence is often described as a CC compliant
licence. Largely it is, but it includes some additions that cover these
issues pertaining to data. They were deemed necessary, otherwise an
actual CC licence could probably have been used. They affirm the moral
rights of the data licensor, and place responsibilities upon the user.
From: http://www.nationalarchives.gov.uk/doc/open-government-licence/

Data users must:

# "...ensure that you do not use the Information in a way that suggests
any official status or that the Information Provider endorses you or
your use of the Information;
# ensure that you do not mislead others or misrepresent the Information or
its source;
# ensure that your use of the Information does not breach the Data
Protection Act 1998 or the Privacy and Electronic Communications (EC
Directive) Regulations 2003."

The second requirement in particular effectively applies a moral rights
clause to data released under this licence, which is missing in
legislation. By suggesting users of CC licences that whatever they
release under CC is afforded local moral rights protection I believe CC
is misleading them. Until this is addressed, CC licences are not as
applicable or suitable for data as they are for creative works.

There is a difference in law between creative works & data, and licences
for data should be clear about this.

Cheers,

Brent Wood


--- On *Sat, 4/14/12, Andres Guadamuz /<anduril13 AT gmail.com>/* wrote:


From: Andres Guadamuz <anduril13 AT gmail.com>
Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
To: cc-licenses AT lists.ibiblio.org
Date: Saturday, April 14, 2012, 12:17 PM

You have mentioned this before. Can you elaborate? Moral rights are
handled quite well in my opinion, the current wording covers all of
the national practices, this has been the subject of constant
discussion since the early licences, and the existing practice seems
to fit well in various jurisdictions.

On 13/04/2012 02:24 p.m., pcreso AT pcreso.com
</mc/compose?to=pcreso AT pcreso.com> wrote:
Moral rights are described in a very misleading fashion, and the
issues regarding these as providing protection for data released
under CC licences need to be far clearer. Frequently there are none.

In the US, Moral Rights only pertain to visual media. In Australia
moral rights can only be assigned to individuals, not
organisations, in New Zealand computer related works are exempt.
CC makes little or no attempt to explain the distinction, &
limitations of CC licences for data.

Those who wish to release data under CC licences, something CC is
trying to encourage, need to be aware that many countries have
different laws covering data & creative works, and that CC
licences relying on local Moral Rights legislation provide very
different protections.

--- On *Thu, 4/12/12, Kent Mewhort /<kmewhort AT cippic.ca>
</mc/compose?to=kmewhort AT cippic.ca>/* wrote:


From: Kent Mewhort <kmewhort AT cippic.ca>
</mc/compose?to=kmewhort AT cippic.ca>
Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
To: "Development of Creative Commons licenses"
<cc-licenses AT lists.ibiblio.org>
</mc/compose?to=cc-licenses AT lists.ibiblio.org>
Date: Thursday, April 12, 2012, 9:08 AM

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

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). 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".

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...".

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".

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.


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. "

Alright, that's all for now :)!

Kent
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