Cc-uk mailing list

[John Howkins <John AT creativeeconomy.com>]

I agree on the grounds that
Best to have all CC licences as similar as possible to eachother
Restricting so-called derogatory treatment would be absurd

On 30/7/04 3:41 pm, "Cory Doctorow" <doctorow AT craphound.com> wrote:

> 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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>> Cc-uk AT lists.ibiblio.org
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>> 
> 
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