Development of Creative Commons licenses

[pcreso AT pcreso.com]

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

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 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> wrote:

From: Kent Mewhort <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>
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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