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  • From: "Andres Guadamuz" <a.guadamuz AT ed.ac.uk>
  • To: "'Prodromos Tsiavos'" <prodromos.tsiavos AT socio-legal-studies.oxford.ac.uk>, <cc-uk AT lists.ibiblio.org>
  • Cc:
  • Subject: RE: [Cc-uk] Legal Bugs Report+ToDo list
  • Date: Fri, 30 Jul 2004 15:39:08 +0100

Dear all,

I will only comment on moral rights, being a Civil Lawyer at heart ;-) Feel
free to skip down to the recommendation if you want to bypass the reasons
behind it.

The question of moral rights is more important to the CC licence than it
would appear at first glance. Others have already remarked that moral rights
are not particularly applied in the UK and the US (as testified by the
miniscule number of moral rights cases in the UK). It is generally
understood that they do not sit well in the Common Law tradition, and they
are generally applied more forcefully in civil law countries such as France,
Germany, Italy and Spain.

Why do I say that moral rights are important to the CC? To begin with, the
moral right of attribution must be asserted (s78 CDPA), so the CC-UK must
contain the assertion, as it already does. Also, the attribution right only
applies to literary, dramatic, musical and artistic works and films, which
means that sound recordings and broadcasts are not subject to this right.
This may be mentioned at some point in the licence because one has to assume
that CC-UK will be used to license these works, but I honestly do not see a
compelling reason to state it.

Then there is the touchy subject of the right to object to derogatory
treatment of the work. Derogatory treatment is "distortion or mutilation of
the work or is otherwise prejudicial to the honour or reputation of the
author or director" (s 80(2) CDPA). I believe that this right is
incompatible with licences that allow adaptation of the original work
because it would generate too many problems. What amounts to mutilation? Can
you really object to derogatory treatment if you implicitly allow
adaptations of the work to be made by others? Does the licence constitute a
waiver of this right?

In my opinion, the argument about the inclusion of moral right comes back to
the discussion about how much should CC-UK deviate from CC 2.0. If we want
to keep it as close to the original, then the only moral right asserted
should be the attribution right. On the other hand, if the CC-UK wants to be
different, then the derogatory treatment right may be included as well.

I believe that the licence should only contain the attribution right for the
reasons stated above, but this may also prove to be problematic. If you read
the moral rights section of the CDPA, the only right that needs to be
asserted is the attribution right, while the right to derogatory treatment
exists even without assertion. This would mean that if we want to exclude
this right, then the licence should include a specific waiver. There is of
course, a theoretical debate about whether moral rights can be waived at
all, but fortunately, the CDPA allows it (s 87 CDPA).

My recommendation in short, attribution right must be explicitly asserted,
derogatory treatment must be explicitly waived.

-------------------------
Andres Guadamuz
AHRB Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://www.law.ed.ac.uk/ahrb/


-----Original Message-----
From: cc-uk-bounces AT lists.ibiblio.org
[mailto:cc-uk-bounces AT lists.ibiblio.org] On Behalf Of Prodromos Tsiavos
Sent: 30 July 2004 12:34
To: cc-uk AT lists.ibiblio.org
Subject: [Cc-uk] Legal Bugs Report+ToDo list


Dear All,

You may find attached a document (Legal Bugs Report) containing an abstract
of
the comments made in relation to various sections of CC-UK 2.03 as well as
some
responses to issues that you have raised in relation to our latest draft.
Please have a look and let me know in case you find a major omission/
misinterpretation of your comments or you have any further suggestions.

We are at the stage where we are trying to fix the problems with the license

(which we call Legal Bugs ;-)) and release the next CC-UK draft. What we
need
from the CC-UK mailing list participants at this stage is to provide
specific
recommendations about how certain provisions should look like. In particular
we
need you to provide suggestions for specific clauses in relation to the
following issues:

1. Jurisdiction: How would you form section 9 and how would that affect

the overall architecture of the license
2. Liability limitation: please provide an equivalent for CC 2.0 s.6
that
would be enforceable under the UK law
3. Moral Rights: here we need your opinion concerning whether we should

keep just the attribution right or also include other moral rights. Would a
waiver of moral rights other than the attribution right be advisable?

I understand that there are many other issues to be tackled, but for the
time
being we would be interested in having your concrete suggestions on the
above
three.

Best,
Prodromos Tsiavos
CC-UK legal project lead





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