Development of Creative Commons licenses

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

On 02.05.2012 14:08, Christopher Covington wrote:

>>> On Mon, 30 Apr 2012 14:03:53 +0200 Gisle Hannemyr wrote:

>>>> However, I think it is important that users of CC BY-SA has
>>>> protection against their opinions being distorted.  The correct
>>>> solution, in my opinion, is not to include a mandatory disclaimer,
>>>> but to have the following clause in the license:
>>>>
>>>>    You must not distort, mutilate, modify or take other derogatory
>>>>    action in relation to the Work which would be prejudicial to
>>>>    the Original Author's honour or reputation.

> I am not in favor of any such clause. How does one comply with this?

In the same way as one comply with libel laws, and other laws that
exist to protect honour and reputation.

As Rob Myers has noticed, the language used as a reminder about moral
rights in CCPL ver. 3.0 is from Berne, which is *already* part of the
legal framework of jurisdictions that are Berne signatories.  Here is
a list of jurisdictions were this apply:

http://www.copyrightaid.co.uk/copyright_information/berne_convention_signatories

> Full diligence would require research into the nature of the original
> author(s) honor and reputation. This would require at the very least
> finding a biography of the original author(s) and studying up on the
> local customs to understand what actions there are considered honorable
> and dishonorable, and what might enhance or detract from their
> reputation. Even after meticulous research you're not necessarily going
> to know what secret societies with peculiar codes of conduct they might
> belong to.

This is silly.  Moral rights are part of IPR regulation around the
globe, it is not exactly a new invention (the Berne convention is
from 1886), and compliance does not require *any* of the over-the-top
actions you list.

> With this clause you probably even open the door to lawsuits where the
> original author tries to hold you liable for a slump in their fame. And
> they could be right. It might often be the case that derivatives that
> achieve good repute push the original work out of the spotlight to some
> extent. I think this is good, and the CC licenses shouldn't punish this
> sort of success.
>
> You may object to my blurring of reputation and fame. The reason I've
> done so is because I find "honor" and "reputation" to be very blurry
> terms in the first place, although if they have exact legal definitions
> in many jurisdictions, I'd be interested in reading up on that.

The concept of moral rights is obviously foreign to you.  I do not
see any point in debating moral rights on the basis of a the parody
of it you present.

> Furthermore I worry this chips away at freedom 0:
> 
> "The freedom to use and perform the work: The licensee must be allowed
> to make any use, private or public, of the work. For kinds of works
> where it is relevant, this freedom should include all derived uses
> ("related rights") such as performing or interpreting the work. There
> must be no exception regarding, for example, political or religious
> considerations."
> 
> http://freedomdefined.org/Definition
> 
> I, for one, will only ever use or support Creative Commons licenses that
> are approved for free cultural works.

Well, the compromise moral rights clause I suggest reinserted in CCPL
ver. 4.0 already *was* in CC BY and BY-SA ver. 3.0, which was approved
for free cultural works.  Obviously, reinserting it in ver. 4.0 does
affect that status.

>> First: Moral rights does not have a chilling effect.  People are free
>> to make adaptations in order to criticize the original work or author
>> - as long as they avoid being prejudicial to the Original Author's
>> honour or reputation.

> The effect of importing moral rights into countries that have not made
> them part of their law might not be exactly chilling, but I'd be
> surprised if it was both predictable and always positive.

See list of Berne signatories linked to above.  These countries you
speak of are very, very few and far between.

>> Second: To regard copyright law as only concerned with economic
>> rights is (at least to me) a strange way of looking at copyright.
>> Copyright is about both *economic* and *moral* rights, and both
>> has to be covered by an international public license, for the
>> simple reason that this is how the majority of jurisdictions
>> look at copyright.  (Some tells me that the USA is different,
>> but to me, it looks as if moral rights is alive and well,
>> even in the USA, re:
>> http://www.rollingstone.com/music/news/jackson-browne-settles-with-gop-over-running-on-empty-ad-use-20090721
>> )

> My understanding of that case is that after the judge rejected the fair
> use defense, the two parties settled with each other. The court did not
> make any ruling upholding moral rights as such.

This is not correct.  Some other disputes about the GOP-campaign
using songs by "Disgruntled Rockers" were resolved by the GOP
licensing the songs (this was how a similar conflict with Foo
Fighters was resolved).  However, in the case of Jackson Browne,
Browne's moral rights means that the GOP cannot legally use his
songs, even if they buy a license).

> The requirement to obtain permission to use a work in the United States
> is in my mind neither a strictly moral nor strictly economic right of
> the author. Specifically, I don't think it qualifies as a moral right
> all of the time because depending on the contract between the artist and
> the publishing company, the artist may *not* have any say in who gets
> permission and who doesn't. It could be that anybody who pays the rate
> the publishing company sets gets a license.

The US is a signatory to the Berne conventions, that says:

   "Independently of the author's economic rights, and *even after the
    transfer of the said rights*, the author shall have the right to
    claim authorship of the work and 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
    honor or reputation."  (my emphasis)
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

Assuming the USA honour its international obligations, moral rights
are not touched by transfer of economic rights.

If the CC puts a too broad waiver of moral rights into its license,
it will just make this part of the license (and possibly the whole
license) illegal in any jurisdiction that is a Berne signatory,
*including* the USA.

> It seems to me like the law is much more generic than economic or moral.
> To color certain clauses as one or the other after the fact seems to me
> to be more confusing that helpful.

I don't think the CC should use its public license to cancel the
Berne convention (not that the CC *can* do this - but it will
be confusing if the CCPL contains a waiver that tricks licensees
into believing that they need not consider moral rights).
-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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