Creative Commons in the South Caucasus

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

Dear Diane,
Thanks for comments, I had some thoughts on commons deed too and it shall be
adjusted. But what do you think about changing License title to "no
derivatives *except collections*"? Does it look appropriate for you?
In this case, neither legal collision nor confusion could occur. However, I
guess that it would be inconsistent with general policy of CC, as far as I
know, to have maximally harmonized and consistent licenses all over the
jurisdictions.Thank you.

With best regards
Movses

On Sat, Jun 27, 2009 at 04:16, Diane Peters <diane AT creativecommons.org>wrote:

> Dear Movses,
> Please forgive the second email.  But it did occur to me to call attention
> to one additional consideration that you may already be aware of but I
> wanted to be sure wasn't overlooked.
>
> You expressed concern that people might be confused by the human readable
> commons deed, since they may not look at the legal code where the division
> between collective works and adaptations is defined for purposes of what
> they can and cannot do with an ND licensed work.  Please keep in mind that
> in finalizing the licenses and launch, your team will have some latitude to
> select the most appropriate terminology for the Armenian language commons
> deed.  You may want to consider how to phrase "no derivative works"
> appropriately.  That may help convey via the human readable commons deed the
> concept that is spelled out in the legal code.
>
> Looking forward to working with you to complete this.  You're very close!
>
> Kind regards,
> Diane
>
>
> On Fri, Jun 26, 2009 at 10:45 AM, Diane Peters 
> <diane AT creativecommons.org>wrote:
>
>> Dear Movses,
>> Thanks again.  I believe we understand your issue thoroughly.
>>  Unfortunately, I do not believe there is anything more we can do with
>> respect to the text of the ND licenses themselves as we cannot have the ND
>> term extend to use of a work in Collections, as already mentioned.  From
>> what we can tell, you've drafted those provisions as best as possible under
>> the circumstances.
>>
>> I kindly offer the following additional suggestions, though.  First, your
>> team make clear in the explanation of substantive changes document the
>> differences between how adaptations are treated under Armenian law and how
>> they are treated under the ND licenses - which you may have already done
>> ;-).  Second, that you create an FAQ in Armenian for inclusion on the local
>> jurisdiction web site making this clear also - you might model it on the
>> description included in the substantive changes document.  And third, work
>> closely with the other leads and agree to emphasize this difference in
>> presentations and whenever the licenses are being promoted.
>>
>> For CC's part, I am going to look into preparing an FAQ for the main
>> website on the importance of licensors and licensees understanding
>> jurisdiction specific issues before they choose a license, as well as
>> including that on our "Things to Thing About" before using a CC license
>> page.  We will also think about publishing an explanation about the
>> intricacies of "adaptation" vs "derivative work" issue so that other
>> countries with similar issues share a common understanding.
>>
>> Hopefully, between all these efforts we can help minimize any potential
>> confusion and educate would-be licensors and licensees.
>>
>> I believe we should now proceed ahead with having the proposal you've made
>> (separating adaptation and collective work into their own stand-alone
>> definitions noting where appropriate these are the definitions "for 
>> purposes
>> of the" licenses) integrated into the licenses.  Does that sound correct to
>> you?
>>
>> Kind regards,
>> Diane
>>
>>
>> On Thu, Jun 25, 2009 at 1:28 PM, Movses Hakobyan <
>> movses.hakobyan AT gmail.com> wrote:
>>
>>> 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>
>>>> ______________________________________
>>>>
>>>>
>>>
>>
>>
>> --
>> 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>
>> ______________________________________
>>
>>
>>
>
>
> --
> 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