Development of Creative Commons licenses

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

The present language in sev 2(b)(1) in the draft is painful to
read.

However, I think the motivation behind this mess was something that
Diane Peters write about the ver. 4.0 draft on April 2nd, 2012
( http://creativecommons.org/weblog/entry/32157 ).  I quote:

   We remain concerned that these "ancillary rights" (the term coined
   for use in the draft) could undermine or interfere with expected
   uses of the licensed work, much as sui generis database rights
   (and their treatment in 3.0 and its ports) have vexed CC
   licensors and licensees in Europe for years.

I think this is backwards.  These so-called "ancillary rights" no more
interfere with or undermine the expected uses of the licensed work
than  copyright, neighbouring rights, or database rights does.  The
problem here is that CC attempts to interfere and undermine local law
in some jurisdictions.   There is no need to do this, and we should
stop doing it altogether.

The obvious solution for CC is to *license* any rights (where
they exist) under the same terms and conditions as copyright,
neighbouring rights and (now, finally!) database rights.

The only thing that has "vexed" CC licensors and licensees in Europe
about database rights was that you could *not* use CC for database
rights (in most ver. 3.0 jurisdiction), which is presumably why they
are explicitly included in ver. 4.0.

By means of example, take the Nordic catalogue rights, which are
among the so-called ancillary rights that Diane Peters wants to
be explicitly waived in the draft 2(b)(1).

Can anyone explain how it undermines or interferes with expected
uses of the licensed work if CC should make it *possible* to stick
a CC BY-SA on a catalogue published in a Nordic country?  It
basically means if that someone creates a derivative catalogue
in a Nordic country, they too have to make the derivative version
available under CC BY-SA, which I think is something the CC
community should want.

Admittedly, there is a lot of copyright-like rights, and they
*are* treated different in various jurisdictions.  There is nothing
the Creative Commons can do about it.  CC just need to understand
that its job is to create licensing tool - *not* to interfere with
local laws about copyright and copyright-like rights.

I can't see what good the current language in Section 2(b)(1) and
Section 2(b)(2) does.

I've already (see the thread "Thoughts on NC") suggested how to
fix Section 2(b)(2).

As for Section 2(b)(1), I think *all of it* can be replaced with the
following sentence.

   Moral Rights, to the extent they exist, are not affected by the
   license.

   Other Neighbouring Rights, to the extent they exist, are under
   this license offered on the same terms as Applicable Copyright.

I am also confused by the use of the term "ancillary rights".
I can assure you that catalogue rights in the Nordic countries
is *not* an "ancillary right", it is a "copyright-like" right
or a "neighbouring right", just like any other sui generis right.
When I see the word "ancillary rights", I think about rights that
are *not* copyright-like, such as merchandising rights.




===========================
On 20.04.2012 15:56, Diane Peters wrote:
> The language you point to is important to get right, so if we need to
> tighten or explain it further to avoid ambiguity we welcome suggestions.
>  One alternative is proposed below, but first we should be clear on the
> policy choice we're trying to implement in the legal code.
> 
> There are only two places in 4.0d1 where we used that language -- Section
> 2(b)(1) and Section 2(b)(2).  These sections deal with rights other than
> copyright and neighboring rights that could restrict the licensee's ability
> to use the work as otherwise expected.  Those sections address three
> categories of such rights:  moral rights and rights to collect royalties
> under a collecting society scheme, both of which are handled in 4.0d1 as
> they are in v3.0; and ancillary rights, which are new in this first draft
> of 4.0. [1]  Our intention as a matter of policy -- which we attempt to
> make clear through use of the phrase "to the extent necessary ....to allow
> You to exercise the rights granted You under this Public License" -- is for
> the license to only affect the rights in those three categories that would
> otherwise prevent a licensee from using a work, and for the licensor to
> retain all others.  Those rights can be multi-faceted depending on
> jurisdiction.  Moral rights may include one or more of the right of
> attribution, the right of integrity and so forth.  Same for ancillary
> rights, which might include catalogue rights in Nordic countries, rights in
> scientific and critical editions in Italy, and on and on, again depending
> on jurisdiction.  So depending on which of those rights might actually be
> implicated, our intention as a matter of policy is to ensure that the
> licensee gets the permission she needs to use the work as the license
> intends without forcing the licensor agree to more than she needs to in
> order to grant permission to use the work.
> 
> We think this is fair as a matter of policy both for licensees (whom we do
> not want to put at risk vis-a-vis licensors because licensors may hold
> still rights that could prevent use of the work as intended despite the
> license) and for licensors (whom we do not think should be asked to give up
> more rights than necessary for the work to be used as intended).  Feedback
> on this policy choice is sought. There has already been some discussion on
> the treatment of collection of royalties by performance rights organization
> and moral rights on this mailing list.  E.g.,
> 
> https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006786.html,
> thread on NC that evolved into discussion of performance rights
> organizations, including our rationale for the current approach that
> continues the policy established in 3.0 (
> https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006853.html)
> 
> https://lists.ibiblio.org/sympa/arc/cc-licenses/2012-April/006863.html, one
> of several threads discussing treatment of moral rights
> 
> 
> Getting the language right is another matter.  If we can provide more
> clarity in the legal code then by all means will do so.  We have no desire
> or intention of being deceptive about how the license works, to the
> contrary!
> 
> One possibility is to exclude the reference to rights retained in those two
> sections altogether as unnecessary.  Other language already makes it clear
> that the licensor is waiving (or agreeing not to assert) only those rights
> necessary to allow the license to operate as intended.  See the lead in
> language to both sections ("To the extent possible and necessary to allow
> You to exercise....."), and Section 2(c) (reserving all rights of licensor
> not otherwise specified).
> 
> Section 2(b)(1) might then read in relevant part (with strikethroughs
> indicating deletions):
> 
> (1) To the extent possible and necessary to allow You to reasonably
> exercise the rights granted to You under this Public License, Licensor
> waives or, where not permissible, agrees not to assert:
> 
> 
> 
> (i) Licensor’s moral rights in the Licensed Work; *however*, Licensor
> retains all other moral rights Licensor has in the Licensed Work; and
> 
> (ii) other ancillary rights Licensor has in the Licensed Work; *however*,
> Licensor retains all other ancillary rights Licensor has in the Licensed
> Work and, (for the avoidance of doubt, patent, trademark, privacy,
> personality and publicity rights shall not be considered ancillary rights).
> 
> A similar edit would be made in Section 2(b)(2) (royalties and collecting
> societies).
> 
> We chose on balance in 4.0d1 to include the extra language so there would
> be no doubt that if not necessary (or possible) to waive, the licensor
> retains those rights.  But from a strictly legal drafting perspective, that
> language is very probably not necessary.  If it helps resolve ambiguity
> while achieving the policy objective, then we ought consider making these
> changes.  Of course, other suggestions (and input on the policy choice) are
> very welcome.
> 
> Best,
> Diane
> 
> [1]  Ancillary rights are new in 4.0, and we want to hear feedback on this
> addition.  See http://creativecommons.org/weblog/entry/32157 for a brief
> introduction to the challenge of these other copyright-like rights.
> 
> 
> 2012/4/20 Evtyushkin Alexander <alex.evtyushkin AT iis.ru>
> 
>> Dear all,
>> in some places of the new version there is a text like that:
>>
>> ----------------
>> [Licensor waives or, where not permissible, agrees not to assert:]
>>
>> 2(b)(1)(ii) other ancillary rights Licensor has in the Licensed Work;
>> however, Licensor retains all other ancillary rights Licensor has in the
>> Licensed Work
>> and, for the avoidance of doubt, patent, trademark, privacy, personality
>> and publicity rights shall not be considered ancillary rights.
>> -------
>>
>> This is really deceptive and ambiguous IMHO, as the statement says that:
>> (1) Licensor waives "other ancilliary rights", and
>> (2) Licensor retains "all other ancilliary rights".
>>
>> How can one make difference, where there are simply "other ancilliary
>> rights", and where there are "all other ancilliary rights"?
>>
>> The same again goes in the following text:
>> --------------------
>> [From Section 2(b) Other Rights]:
>> (1) To the extent possible and necessary to allow You to reasonably
>> exercise the rights granted to You under this Public License, Licensor
>> waives or, where not permissible, agrees not to assert:
>> (i) Licensor’s moral rights in the Licensed Work; however, Licensor
>> retains all other moral rights Licensor has in the Licensed Work...
>> --------------------------
>> There, again, one should make difference: whether there are Licensor's
>> moral rights or Licensor's "other" moral rights...
>>
>> Maybe it should be corrected in some way or other, or further elaborated
>> to avoid ambiguity.
>>
>> Sincerely,
>> Alex Evtyushkin
>> Institute of Information Society,
>> the partner of Creative Commons in Russia
>>
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> 
> 
> 
> 
> 
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-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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