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[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

------ Forwarded Message
From: David Illsley <david AT illsley.org>
Date: Wed, 6 Apr 2005 16:15:17 +0100
To: Jonathan Mitchell <website3 AT jonathanmitchell.info>
Subject: Re: SV: [Cc-uk] A number of updating drafting points

> A particular problem is moral rights. Jurisdictions which don't have
> them:
> no problem. Jurisdictions which have them and they can't be waived: no
> problem either. But the UK jurisdictions have no option but to face up
> to
> the problem. I am concerned at international differences. Israel and
> Canada
> are in the same boat as us. Israel is explicitly reserving . Canada is
> explicitly waiving . My personal view, and I don't speak for the
> project on
> this, is that I am persuaded by the arguments for reservation, see
> attachment to Prodromos' message of 6/12/04. If that is followed, I
> think it
> has the knock-on effect that it does require a few fresh definitions.

I'd like to respond to this, again i am a layman... Playing devil's
advocate, a worry I have is that an American might take a work licensed
under CC-Scotland, change the colour of the text and release this
derivative work under CC-Generic. At this point the moral rights
language has been stripped from the licence to the work and presumably
someone in the UK can then take that CC-Generic work and create a
derogatory work and release it under whatever CC licence they like with
the same elements. (This assumes that for moral rights to be not waived
there needs to be such a declaration in the licence) The remainder is
based on the above being plausible. If it isn't, there's no need to
read the rest.

If this is indeed the case it highlights the need for international
compatibility. The simplest solution would be that the CC licences
(worldwide) do not affect your 'default' moral rights (as they are
unable to in some countries). This means that any CC licence used in
the UK for a work you originally authored would have whatever the
default UK/Scotland protections are. Rights (including moral rights) to
be asserted worldwide should therefore be done using licence elements
(as I understand it, the BY element essentially represents one of the
moral rights under discussion). This clearly requires changes in
licences globally and that also clearly not easy.

Given that, my priority would be clarity for the licensor. If my
scenario above is plausible then in my mind it needs to be clear to
licensors that the 'protection' by those clauses in the licence may be
circumvented, and perhaps to simply remove them if they are misleading.

Apologies if I'm misunderstanding the licence,
David

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