Creative Commons in the South Caucasus

[Movses Hakobyan <movses.hakobyan AT gmail.com>]

Dear Diane,
Thanks for reply. As you know according to RA Law on Copyright both
adaptations and Collections are Derivative Works. Moreover, the Title of
License is "NoDerivatives" that again implies both adaptations and
collections and in fact could mislead users especially those who did not
read Legal Code but commons deeds. Of course we can make a reservation in
the text of the license like "for the purpose of this license collections
are not derivative work" or smt like that but I have doubts whether it can
work because in case of discrepancy between the License and the Law (brought
as an argument by complainant) the court rulling usually is in favor of law.

May be there are other considerations that I overlooked? Please advise me
Thanks in advance
Movses


On Fri, Jun 26, 2009 at 00:45, Diane Peters <diane AT creativecommons.org>wrote:

> Dear Movses,
> Thanks for your reply.
>
> Just so I'm clear, when you say "not in line with Armenian legislation", do
> you mean that by separating the definitions of Adaptation and Collection in
> the way proposed above, the license wouldn't be legally interpreted
> correctly or enforceable as intended under Armenian law? Or do you mean, it
> doesn't have the same visual structure but legally the ND license will be
> interpreted and enforced under Armenian law properly?
>
> I, too, prefer the approach of keeping the definitions separate for clarity
> if at all possible and provided it doesn't render the license unenforceable
> and it is interpreted correctly.
>
> Regarding your question about restricting collections as a derivative work,
> as you note, our ND licenses expressly permit a licensee to distribute the
> work as part of a collection, so that right should not be limited in the
> ported ND licenses.
>
> I hope this makes sense, looking forward to your reply.
>
> Kind regards,
> Diane
>
>
> On Thu, Jun 25, 2009 at 11:03 AM, Movses Hakobyan <
> movses.hakobyan AT gmail.com> wrote:
>
>> Dear Diane,
>> Frankly, there is no way to be in line with Armenian legislation in this
>> regard because collections and adaptations are treated under the same
>> definition namely "Derivative Works" under Armenian Law. The problem is 
>> that
>> legally we could not separate them, otherwise to keep license as 
>> restricting
>> derivative works (as for Armenian law) shall mean restrict collections too,
>> which is contrary to the philosophy of creative commons licenses with ND
>> element. If you have any suggestion they are really welcome. By the way,
>> what do you think it is possible to restrict collections (collective works)
>> as a part of derivative works?
>> Thanks
>> Movses
>>
>>
>> On Thu, Jun 25, 2009 at 22:01, Diane Peters 
>> <diane AT creativecommons.org>wrote:
>>
>>> Dear Movses,
>>> To follow up on this proposal per the email thread below, I have no
>>> objections to the structure and am supportive.  My only concerns were that
>>> (1) this structure needed to legally work under Armenian law, and it 
>>> appears
>>> that it does from your emails, and (2) users of the licenses (and courts 
>>> in
>>> your jurisdiction, for that matter) are able to understand the structure
>>> without difficulty.  Your emails suggest this works for the licenses, and 
>>> so
>>> I'm supportive of how this has worked out.  I believe we're set!
>>>
>>> Looking forward to seeing the concluded licenses.  Good luck with that
>>> process, and thanks for your hard work and focus on the intricacies of the
>>> license porting.
>>>
>>> Diane
>>>
>>>
>>> On Wed, Jun 24, 2009 at 5:28 AM, Movses Hakobyan <
>>> movses.hakobyan AT gmail.com> wrote:
>>>
>>>> Dear Catharina,
>>>> It is very nice to come to the conclusion with drafting Licenses. I hope
>>>> in a couple of days I will forward all materials for proofreading.
>>>> Thank you for expertize
>>>> Movses
>>>>
>>>> On Wed, Jun 24, 2009 at 15:47, Catharina Maracke <
>>>> catharina AT creativecommons.org> wrote:
>>>>
>>>>> Dear Movses,
>>>>> Many thanks for getting back to me on this. Your suggestion sounds fine
>>>>> to me if this also fits into Armenian law? If you go for this solution,
>>>>> please make sure that in both licenses including the ND element (BY-ND 
>>>>> and
>>>>> BY-NC-ND) you don't mention the term "derivative work" or "adaptation" 
>>>>> in
>>>>> the license grant or in Section 7) or 8).
>>>>>
>>>>> Diane, do you have any objections or concerns?
>>>>>
>>>>> Thank you very much again to all of you.
>>>>>
>>>>> Catharina
>>>>>
>>>>>  Dr. Catharina Maracke
>>>>> catharina AT creativecommons.org
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> On Jun 22, 2009, at 2:12 PM, Movses Hakobyan wrote:
>>>>>
>>>>> Dear Catharina,
>>>>> I see we are in the final stage, and just the last question: what do
>>>>> you think if I take over the structure /solution from BY-ND Unported 
>>>>> version
>>>>> as below? Is this OK? So, first goes definition of Adaptation that 
>>>>> includes
>>>>> "derivative work" (only for the purpose of this License) then 
>>>>> "collection"
>>>>> that  will not be considered asan Adaptation and so on.
>>>>>
>>>>> Movses
>>>>>
>>>>> *1. Definitions*
>>>>>
>>>>>    1. *"Adaptation"* means a work based upon the Work, or upon the
>>>>>    Work and other pre-existing works, such as a translation, adaptation,
>>>>>     derivative work, arrangement of music or other alterations of a
>>>>>    literary or artistic work, or phonogram or performance and includes
>>>>>    cinematographic adaptations or any other form in which the Work may 
>>>>> be
>>>>>    recast, transformed, or adapted including in any form recognizably 
>>>>> derived
>>>>>    from the original, except that a work that constitutes a Collection 
>>>>> will not
>>>>>    be considered an Adaptation for the purpose of this License. For the
>>>>>    avoidance of doubt, where the Work is a musical work, performance or
>>>>>    phonogram, the synchronization of the Work in timed-relation with a 
>>>>> moving
>>>>>    image ("synching") will be considered an Adaptation for the purpose 
>>>>> of this
>>>>>    License.
>>>>>    2. *"Collection"* means a collection of literary or artistic works,
>>>>>    such as encyclopedias and anthologies, or performances, phonograms or
>>>>>    broadcasts, or other works or subject matter other than works listed 
>>>>> in
>>>>>    Section 1(f) below, which, by reason of the selection and
>>>>>    arrangement of their contents, constitute intellectual creations, in 
>>>>> which
>>>>>    the Work is included in its entirety in unmodified form along with 
>>>>> one or
>>>>>    more other contributions, each constituting separate and independent 
>>>>> works
>>>>>    in themselves, which together are assembled into a collective whole. 
>>>>> A work
>>>>>    that constitutes a Collection will not be considered an Adaptation 
>>>>> (as
>>>>>    defined above) for the purposes of this License.
>>>>>
>>>>>
>>>>>
>>>>> On Fri, Jun 19, 2009 at 17:46, Catharina Maracke <
>>>>> catharina AT creativecommons.org> wrote:
>>>>>
>>>>>> Dear Movses,
>>>>>> Many thanks for your reply! I think your suggestion sounds fine and we
>>>>>> should go ahead. As mentioned, it would be important to clearly 
>>>>>> separate
>>>>>> collections and adaptations (or any other appropriate term for 
>>>>>> "adaptation"
>>>>>> depending on local Copyright law) so that we can clarify that both ND
>>>>>> licenses (BY-ND and BY-NC-ND) don't allow for derivative works but 
>>>>>> still
>>>>>> allow to distribute and publicly perform the work including as 
>>>>>> incorporated
>>>>>> in collections.
>>>>>>
>>>>>> My apologies for not being aware of this earlier - sometimes some
>>>>>> final questions only come up at the very last minute.
>>>>>>
>>>>>> Could you revise the licenses and send back to us for final
>>>>>> proofreading?
>>>>>>
>>>>>> Thank you very much.
>>>>>>
>>>>>> Catharina
>>>>>>
>>>>>>
>>>>>>  Dr. Catharina Maracke
>>>>>> catharina AT creativecommons.org
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>  On Jun 16, 2009, at 2:17 PM, Movses Hakobyan wrote:
>>>>>>
>>>>>> Dear Catharina,
>>>>>> Back to our discussions on the first license BY-NC-SA, I made
>>>>>> "derivative work" to include both adaptations and collections based on 
>>>>>> the
>>>>>> provisions of Armenian Copyright Law. At that time we agreed to follow 
>>>>>> that
>>>>>> formulation to be in line with Law at least for this point. However, in
>>>>>> order to find optimal solution I separated adaptations and collections
>>>>>> within "derivative work" definition to address them separately in the
>>>>>> wording of License.
>>>>>> So, on this point, what I can suggest (BY-ND License) is:
>>>>>>
>>>>>>    1. Keep two definitions (Adaptation and Collection) intact but
>>>>>>    remove the note on derivative work (Section 1.a) as it is appeared 
>>>>>> in
>>>>>>    Unported version (BY-ND License).
>>>>>>    2. Distinguish Collections from Adaptations (instead of derivative
>>>>>>    work- As you suggested-Am I right?) with mentioning -"for the 
>>>>>> purpose of
>>>>>>    this license".
>>>>>>    3. And finally implement all abovementioned only in BY-ND license.
>>>>>>
>>>>>> I am looking for your reply
>>>>>> Thank you
>>>>>> Movses
>>>>>>
>>>>>>
>>>
>>>
>>> --
>>> Diane M. Peters, General Counsel
>>> Creative Commons
>>> 171 Second St, Suite 300
>>> San Francisco, CA  94105
>>> office: +1 415-369-8480
>>> fax: +1 415-278-9419
>>> cell: +1 503-803-8338
>>> skype:  peterspdx
>>> email:diane AT creativecommons.org <email%3Adiane AT creativecommons.org>
>>> ______________________________________
>>>
>>>
>>>
>>
>>
>> --
>> Movses Hakobyan
>> Lawyer/Project Director
>> Internews' Centre for Information Law and Policy
>> 3 Arshakunyats Ave, Yerevan 0023, Armenia
>> tel: + 374 10 583620
>> fax: + 374 10 569041
>> www.internews.am
>> www.media.am
>> www.gipi.am
>>
>
>
>
> --
> Diane M. Peters, General Counsel
> Creative Commons
> 171 Second St, Suite 300
> San Francisco, CA  94105
> office: +1 415-369-8480
> fax: +1 415-278-9419
> cell: +1 503-803-8338
> skype:  peterspdx
> email:diane AT creativecommons.org <email%3Adiane AT creativecommons.org>
> ______________________________________
>
>