Creative Commons Polska

[minus <minus AT free.art.pl>]

Piotrze rzuc na to okiem, moim zdaniem powinienes zabrac glos w tej sprawie.
Osobiscie boje sie, ze kolejna iteracja licencji CC dolozy tylko 
problemow z brakiem kompatybilnosci, innymi slowy - ze wlasnie 
przygotowywane jest ich zepsucie.
Lipszyc


-------- Original Message --------
Subject: Re: [Cc-icommons] Right of Integrity
Date: Tue, 8 Nov 2005 19:01:12 -0800
From: Mia Garlick <mia AT creativecommons.org>
To: Marcus Bornfreund <marcus AT creativecommons.ca>
CC: Lawrence Lessig <lessig AT pobox.com>, cc-icommons AT lists.ibiblio.org
References: <3d0e260f8e6df01f254a477d3729bd3d AT creativecommons.ca>

hey all,

so i am going to try to give my two cents on melanie, prodromos and
marcus' comments in one email to try to reduce the amount of stuff in
people's inbox. i hope i haven't overlooked any issue - please let me
know if i have.

the good thing is that i think everyone is in agreement about at
least one thing - that we should include the right of integrity
symbol & a statement in the Commons Deed in those licenses where it
is retained to make it clear to people that this present in the Legal
Code.

the other thing about which there seems to be some general agreement
(not overwhelmingly unison but no opposition certainly) that CC will
propose to include no endorsement language in the version 3.0 license.

if this is the case, then i think two questions are raised: (1) if we
include the right of integrity in the Commons Deed, how does the
ShareAlike provision operate? (2) does the no endorsement language
satisfy the right of integrity and/or does the permission to make
derivative works necessarily and automatically violate the right of
integrity?

in relation to (1) - if we include the right of integrity in the
Commons Deed, then melanie raises a very valid point that i hadn't
quite thought of before namely that the sharealike provision becomes
complex when people create derivatives based on one original work
with the right of integrity in the Commons Deed/Legal Code and, say,
the US license that does not have the right of integrity in the
Commons Deed or Legal Code. if we include the right of integrity as
one of the "high-level license attributes" or "License Elements" then
a person cannot remix works under these different licenses because
each will require that they relicense under a license which has the
same license elements as the source work and these license elements
will be different.

one solution to this problem is to change all CC licenses to include
a right of integrity (i can already hear the staunch US lawyers' &
legal academics' opposition to this but am prepared to try to win
them over; i am not sufficiently familiar with the canadian legal
community to know whether similar opposition will be encountered in
canada also). this would give effect to marcus' argument, with which
i agree, that the CC licenses need to address the needs of the common
denominator, being those countries whose citizens hold a moral right
of integrity that cannot be waived.

in relation to (2) - i second the views of others expressed on the
list (views that are more experienced than mine on the issue of moral
rights because i was trained in a country that only introduced moral
rights in 1999/2000 and then include a consent provision and now
practice in a country that, for the most part, doesn't have them)
that the no endorsement language does not really address the right of
integrity requirement.

i also wonder if the permission to make derivative works necessarily
and absolutely conflicts with the right of integrity; ie. that a
derivative work requires making a material modification and the
making of a material modification will trigger the right of
integrity. firstly, i am not certain that the derivatives works right
is triggered only upon making a _material_ modifications, at least in
the jurisdictions with which i am familiar although i am happy to be
corrected on that one. secondly, i'm not certain that the right of
integrity will be violated if a material modification is made to a work.

the Australian right of integrity, for example, proscribes conduct
that involves "material distortion of, the mutilation of, or a
material alteration to, the work that is prejudicial to the author's
honour or reputation". while a material alteration may come within
the ambit of the right of integrity, the right is couched in highly
negative language such as "distortion" and "mutilation" and also
contingent upon the alteration being "prejudicial to the author's
honour or reputation." thus, there seems to me to be a space between
a derivative work that is a material modification and a derivative
work that is a material alteration that is in keeping with being a
distortion or mutilation _and also_ prejudicial to the author's honor
and reputation.

in addition, in terms of assessing the damage the right of integrity
has on "free and remix culture" i think we now have the benefit of
empirical data of sorts now that we have had so many jurisdictions
launch licenses with the right of integrity retained. as far as i can
tell, retention of the right of integrity has not chilled downstream
use nor resulted in users seeking extra and express permissions from
the authors (which permission in most european countries could not
assent to derogatory treatment of their work in any event).

i welcome the views of those trained in jurisdictions that have other
moral rights provisions to learn whether a similar such space between
making a derivative work and the right of integrity exists in other
jurisdictions. i also welcome feedback and discussion about the
empirical evidence of sorts we have about the impact of the retention
of the right of integriy.

rgds, mia

On Nov 6, 2005, at 5:26 PM, Marcus Bornfreund wrote:

> Hi Mia -
>
> In answer to your questions:
>
> 1. Whether or not Canada and the US are the only jurisdictions that  
> either waive or do not possess the moral right of integrity is not  
> the correct perspective: we must not assume this will be an issue  
> for forthcoming iCommons participants. The approach to this issue  
> must then be synchronized internationally and, therefore, address  
> the needs of the common denominator, ie. those countries whose  
> citizens hold a moral right of integrity that cannot be waived.
>
> 2. Reflection of a right of integrity in the Commons Deed is indeed  
> essential if retained, at risk of misleading downstream users and  
> creators.
>
> To address other points raised by Prodromos and Melanie, respectively:
>
> 1. The passive term "(in) association' with a work is perhaps  
> overly broad in the company of active qualifiers such as 'support  
> and/or approval'. However, this is standard language and given the  
> manner of CC licensing ie. where direct permission is not required,  
> we should not assume that the presence of attribution itself is an  
> endorsement on the part of the Original Author. I caution against  
> delving into qualifiers of when/how an endorsement is given in the  
> absence of a written statement to this effect from the Original  
> Author.
>
> 2. True, when it comes to the integrity of the work and/or the  
> Original Author's reputation, we are talking about more than  
> endorsement - specifically, the right to prevent others from  
> engaging in material distortion and/or modification of the work.  
> For NonDerivative licences, this is irrelevant but for the other  
> licence permutations this restriction can be quite problematic.  
> Isn't material modification required for the creation of a  
> derivative work?
>
> If the answer is yes, the common denominator approach is then in  
> conflict with a philosophy aimed at the elimination of obstacles  
> for downstream creators. By including a right of integrity  
> restriction, we should reasonably expect to see increased  
> uncertainty on the part of downstream creators and a corresponding  
> need for direct permission from the Original Author. I argue that  
> this restriction is unwelcome and, moreover, effectively frustrates  
> the ability to create derivative works.
>
> /Marcus

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