Cc-uk mailing list

[Cory Doctorow <doctorow AT craphound.com>]

I agree with this.

On Jul 30, 2004, at 3:39 PM, Andres Guadamuz wrote:

> 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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