Cc-uk mailing list

["Andrew Katz" <andrew AT thekatzfamily.co.uk>]

Re Prodromos's licences : I like the way this is shaping up.  Apologies if 
the following points have already been picked up:

Intro: the word "licence" should be spelt "license" in the penultimate line 
(verb form rather than noun form). I always found this hard to remember, and 
then two mnemonics came along at one: "you can "c" a noun"; and think of 
"advice" and "advise" (the key is in the pronunciation).

1. "Licence": see my comments below about "agreement"


2.1.3 I'm delighted that the DRM clause is in here, but the DRM doesn't 
alter or restrict the terms of the licence or any rights granted under it, 
it just restricts the ability of any person to exercise the rights. If we 
add at the end of 2.1.3 "...or have the effect or intent of restricting the 
ability of any person to exercise those Rights". I can see an issue arising 
here, however: if the work is incorporated into a collective work which is 
then sold for money (assuming non-commecial use isn't specified here) then 
this could be construed to be a restriction on the licence and therefore 
impermissible. This problem exists irresspective of my suggested amendment 
to 2.1.3

2.1.4 It may be that the Licensor is not the Original Author. I would say 
that it was the Original Author who is entitled to attribution, not 
necessarily the Licensor.

2.5 Apologies if we've been down this route already, but I don't want this 
to amount to a waiver of the independent right of the author to claim for 
defamation . The scope of this clause should be limited to the specific 
moral right in question. We could say "any other act in relation to the 
Work". Could someone enlighten me as to what sort of things are envisaged to 
be covered by the wording "or to any other act that me otherwise prejudicial 
to his/her reputation"? (incidentally the numbering of 2.4 and 2.5 seems to 
have got transposed).

The other point here is that this clause is doing dual duty and is a little 
confused. If the Original Author is the Licensor, then this is a waiver by 
that person. All well and good. If the Original Author is not the Licensor 
(i.e. the copyright has been assigned to the Licensor by the Original 
Author) then I would interpret this as a representation by the Licensor that 
the moral right has been waived by the Original Author. If it turns out that 
this is untrue, then this would amount to a breach of contract.

3.1 I need to have a think about this (and  refer back to the relevant 
legislation) but I have an urge to add the hideously ugly wording: "except 
where you are a consumer as defined in the Consumer Transactions 
(Restriction on Statements) Order 1976 in which case nothing in this licence 
is intended to limit your statutory rights". I need to check the exent to 
which this is relevant, but I feel it might cause issues where the licence 
is applied to a physical object such as a book in which case this attempt to 
exclude liability (if the seller is the Licensor) would amount to a criminal 
offence. As I say, I need to think this through a bit.

5.1 Since there is no right to sublicense, I'm not sure that the second 
sentence is necessary.

6.2 I'm concerned you'll all groan at this one as I'm coming to this cold 
and I'm sure this has been discussed already....but are we  sure this an 
agreement (in which case we need some consideration wording) and not a bare 
licence?

6.4 We've already had comments about confusion of jurisdictions. We might 
also like to allow the licence to be used in the Isle of Man (which adopts 
the English law of copyright but is not part of the United Kingdom). I don't 
know about the status of the Channel Islands.

7.1 Can we lose the apostrophe in the fourth line?



Generally: there is a bit of confusion in terminology between "User" (not 
defined), "Rightsholder" (Not defined) and "You"


Again, this probably shows my naivety but I understood that the CC licences 
were not issued under a CC licence (since we don't want people creating 
derivative works). I assume we have the consent of Creative Commons to 
fiddle with their base licence to produce the BBC licence.


Hope these are constructive comments to what I think is a great piece of 
drafting!

Best wishes

Andrew.





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Today's Topics:

  1. Correction (Prodromos Tsiavos)
  2. Re: New licences and the Integrity right (Jonathan Mitchell)
  3. Re: New licences and the Integrity right (Rob Myers)


----------------------------------------------------------------------

Message: 1
Date: Mon, 11 Oct 2004 11:30:11 +0100 (BST)
From: Prodromos Tsiavos
<prodromos.tsiavos AT socio-legal-studies.oxford.ac.uk>
Subject: [Cc-uk] Correction
To: cc-uk AT lists.ibiblio.org
Message-ID: <20041011103011.18FCC2263D AT webmail218.herald.ox.ac.uk>
Content-Type: text/plain

I just saw my posting...

I wrote "The issues we are currently phasing are:"

meant

"The issues we are currently facing are:"

thanks
prodromos


------------------------------

Message: 2
Date: Mon, 11 Oct 2004 12:19:30 +0100
From: Jonathan Mitchell <website3 AT jonathanmitchell.info>
Subject: Re: [Cc-uk] New licences and the Integrity right
To: "'cc-uk AT lists.ibiblio.org'" <cc-uk AT lists.ibiblio.org>
Message-ID: <BD902AD2.375A%website3 AT jonathanmitchell.info>
Content-Type: text/plain; charset="ISO-8859-1"

I am sorry I have not had the time to comment on version 3 of the CCUK draft
which was circulated on 21 September (incidentally the website still has
version 1 as the current draft for comments, which is unfortunate as there
have been several exhortations to go there to view the current version). Two
unrelated points on today's proposals.

1.The versions of proposed licence distributed today give rights to "view,
edit, modify, translate and distribute Works within the United Kingdom ".
Surely the last four words (repeated at several points) should be deleted
and 'worldwide' substituted? Take a website uploaded by a UK licensor to a
French server and viewed in Germany by somebody who wishes to quote the
contents in Poland. How could this language apply?

2. Clause 6.4 states "This Licence shall be governed by the law of England
and Wales, Scotland and Northern Ireland, and the parties irrevocably submit
to the exclusive jurisdiction of the Courts of England and Wales, Scotland
and Northern Ireland."  Now, at present there are not many material
differences between the three systems (though clause 6.3 flags one and there
are others). But:
(a) how is it conceptually possible for a licence to be governed by three
systems of law simultaneously?
(b) isn't this indeed likely to lead to argument between a user and the
licensor as to what the applicable law is ?(see Beximco Pharmaceuticals Ltd
& Ors v Shamil Bank of Bahrain EC [2004] EWCA Civ 19 at
http://www.bailii.org/ew/cases/EWCA/Civ/2004/19.html for an example of the
unnecessary difficulties in attempts to use two systems of law
simultaneously)
(c ) there is no 'exclusive jurisdiction' if three jurisdictions are being
submitted to. This appears to be intended to give anyone suing on the
contract a choice of the three, so if an English licensor is in a dispute
with an American user the user could sue in Scotland or Ireland if he/she
chose: schedule 4 of the Civil Jurisdiction and Judgments Act 1982 as
amended provides " 12. - (1) If the parties have agreed that a court or the
courts of a part of the United Kingdom are to have jurisdiction to settle
any disputes which have arisen or which may arise in connection with a
particular legal relationship, and, apart from this Schedule, the agreement
would be effective to confer jurisdiction under the law of that part, that
court or those courts shall have jurisdiction." I doubt if any licensor
would wish to go out of their own jurisdiction; and why should they?

Now I know I have made this point  already more than once. The licence will
have to have a number of menu choices anyway as to rights of use. Wouldn't
it be simplest just to have each of these in three editions for the three
jurisdictions? There are other ways of doing this.


Jonathan
--
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------------------------------

Message: 3
Date: Mon, 11 Oct 2004 12:51:20 +0100
From: Rob Myers <robmyers AT mac.com>
Subject: Re: [Cc-uk] New licences and the Integrity right
To: Prodromos Tsiavos
<prodromos.tsiavos AT socio-legal-studies.oxford.ac.uk>
Cc: cc-uk AT lists.ibiblio.org
Message-ID: <7724478.1097495480591.JavaMail.robmyers AT mac.com>
Content-Type: text/plain; charset=ISO-8859-1

On Monday, October 11, 2004, at 11:23AM, Prodromos Tsiavos 
<prodromos.tsiavos AT socio-legal-studies.oxford.ac.uk> wrote:

> (b) Compatibility with the Canadian and Australian CC licences. The
> drafting team of Australia is ?rightly- concerned with UK, Canada and 
> Australia
> adopting a common policy concerning the issue of moral rights. Canada has
> chosen to waive the moral rights, but I am slightly concerned with the
> implementation of their solution (check the document concerning CC-UK moral
> rights position)

MORAL RIGHTS.
-------------

The Canadian solution does have the ambiguity of the attribution removal 
fudge from CC-2.0 . This was criticised (or at least caused confusion) on 
cc-license-discuss as well as debian-legal. And it does go against the CC 
principle of "more certainty less lawyers" mentioned in the document.

I think it's telling that the focus groups accepted that if you're 
committing to derivation then you have to be willing to take the risk of 
your work being mistreated. The CC licenses are designed to express and 
embody a commitment to a particular principle, that of Freedom (in the "Free 
Software" sense), and other very important principles may need to take a 
background role or even be excluded to enable that.

If someone is worried about their reputation (or worried about being on the 
receiving end of cruelty, which I can easily imagine would be a concern for 
very personal works) they really should make the work ND. This could even 
work to their advantage. One can CC-NC one's work to publicise it whilst 
reserving the right to commercial exploitation, so one could CC-ND one's 
work to publicise it whilst reserving the right to derivation.

I really, really, really don't think there should be an IN module. Enforcing 
and managing this adds too much drag and fragmentation to the process of 
derivation.

I also think that the black hole effect has to be avoided at all costs. See 
how BSD authors object to their code winding up in GPL projects. I don't 
want to be forced to let an IN project use my work then have them object to 
my use of something they've built on my work. I'm meant to be in control of 
*my* rights with CC.

Rather than looking to the rest of Europe, I think the baseline has to be 
the original US licenses that the iCommons projects are porting. How would 
those react to the black hole scenarios described in the document? If the 
Continental EU licenses have got it wrong (with the benefit of hindsight and 
from a *derivation* point of view, I appreciate that they have it right from 
a *Moral Rights* position and in the case of Germany a *Legal* position), 
that is something that can be solved in the future.

As Lessig said in his UCL talk, this is something the UK can get right.

THE CA LICENSE
--------

It would be wonderful to have a CC-compatible BBC-CA-compliant license, but 
the black hole effect would surely apply here as well. I don't really want 
to pay in CC'd content for access to a noncommercial license that I've 
already paid for with my license fees if I don't have to. ;-) If the CA and 
CC licenses can be modularised so that understanding one helps understand 
the other and they can share mindshare, that would be a good achievement.

Is there any way the CA license can be like the Open Gaming License? That 
allows the licensor to mark sections of the product as "product identity" 
(essentially branding), not Open and not derivable even though the rest of 
the product is Open. So under an OGL-style license I could download an 
episode of "Only Fools And Horses" and mix any views of Peckham with my CC 
work, but not shots of Del Boy or Rodney. Using any logos would be right 
out.

Are there any hooks that can be put into either license that would make it 
easier for them to work together in the future if the CA gets more liberal 
licensing?

THE CC LICENSE
--------------

This is a wonderfully clear license.

Comments:

2.1 Can this be made multi-sentence at all?
2.1.1 The license does not define the term URI.
2.5 Is it worth mentioning the right of integrity (or at least the word 
"integrity" so as not scare anyone) by name for removal of doubt?
7.1 This is a bad clause. See the discussion on cc-license-discuss (and 
probably debian-legal as well). It goes against the spirit of CC, appears to 
limit fair dealing, and should be removed. IIRC CC didn't object to the idea 
of it being removed from future licenses, and some people called for a 2.01 
license just to remove this clause.

The validating URI idea (as expressed in Lessig's DMCA takedown hack 
discussion in the Q&A from his UCL talk) is a very, very, very bad one (see 
the FSF's recommendation that you include the text of the CC license with 
licensed works). It's bad enough that I can revoke a license on a whim by 
erasing a page on my web site. It's dangerously bad that my ISP can revoke 
the license by being bought up by AOL and moving the URLs of my licenses, or 
by having a server crash on the day a work is performed... If this can be 
removed, or de-emphasised to be more obviously just one option alongside 
reading or displaying the lciense, that would be much better.

- Rob.





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