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[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

David Illsley has raised several questions as to derivative works and their
licensing and related issues in the last two weeks and I am sorry not to
have replied before. I think there are important questions here and they
should be answered.

National CC licences have to replicate the contents of the generic licence,
(see http://creativecommons.org/licenses/by-nc-sa/2.0/legalcode  )so far as
possible, for obvious reasons. So much of the underlying policy is
foreclosed.

1. Taking 2.1.i first, which says "you mustŠ keep intact all notices that
refer to this LicenceŠ", this is simply driven by the generic licence which
has in 4b "You must keep intact all notices that refer to this License and
to the disclaimer of warranties". The EW licence says " to the extent
reasonably practicable, keep intact all notices that refer to this Licence,
in particular the URI, if any, that the Licensor specifies to be associated
with the Work, unless such URI does not refer to the copyright notice or
licensing information for the Work". With all respect I don't follow the
point of the English variations.

2. So far as 2.3 is concerned, David is quite right that there are potential
loopholes in the ability to create a derivative work and publish this under
a different licence: he says, "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". A change in the colour of the text
wouldn't make it a derivative work, but any serious change would do so,
clause 1b of generic. I don't think I see a difference in end result between
the Scottish, English, and generic definitions of 'derivative work', which
are in substance:
Scottish: "a work that Uses the Work (or any substantial part of the Work)
in any material form whatsoever, other than as a whole and in unmodified
form";
English: "any work created by the editing, modification, adaptation or
translation of the Work in any media";
Generic: "a work based upon the Work or upon the Work and other pre-existing
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which the Work may be recast,
transformed, or adapted"
The difference is one of presentation and understanding, not effect. The
solution, if concerned, is to use a non-derivative edition; like other
projects, we use non-commercial/ derivative/share-alike as a template
because it raises all the issues.

3. David also says "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."  I don't think so. Section 80 rights to object to
derogatory treatment are not (I am open to correction) enforceable in the US
anyway, but they would remain enforceable in the UK under the statute,
because they would never have been waived. Incidentally, if they weren't
mentioned in the licence at all, they still wouldn't be waived; the reason
for 2.1.f explicitly reserving the right to object is simply to avoid
misunderstanding, given how differently the right is treated in different
jurisdictions, although I do know that many jurisdictions where the right
cannot be waived haven't bothered to say so.

4. He also says "Rights (including moral rights) to
be asserted worldwide should therefore be done using licence elements". I
agree, and I think this has to be on the agenda for v3 licences, but we
cannot do anything about this on our own.

5. The generic licence works on the basis that a derivative work may be
under a different licence with the same licence elements; again, we have
followed this and I think the end-result is the same (although English and
Scots look to the position of the user, rather than the producer,  of the
derivative work). But I take David's point as to "same licence elements" and
think this could well be made explicit as below- I'll note this for the next
round. 

These are the rival editions:
Generic: 4b " You may distribute, publicly display, publicly perform, or
publicly digitally perform a Derivative Work only under the terms of this
License, a later version of this License with the same License Elements as
this License, or a Creative Commons iCommons license that contains the same
License Elements as this License"
Scottish as to be revised IN CAPS; 2.3 "2.3. Each time You Publish a
Derivative Work, You must offer to the recipient a licence to the Derivative
Work which must be either one with the same terms and conditions as this
Licence, or a later version of this Licence with the SAME Licence Elements
AS this Licence, or another Creative Commons licence with the SAME Licence
Elements AS this Licence."
English: 2.3 "Each time You publish, distribute, perform or otherwise
disseminate
    €     a Derivative Work; or
    €     a Derivative Work as incorporated in a Collective Work

You agree to offer to the relevant third party making use of the Work (in
either of the alternatives set out above) a licence to use the Derivative
Work on any of the following premises:
    €     a licence on the same terms and conditions as the licence granted
to You hereunder; or
    €     a later version of the licence granted to You hereunder; or
    €     any other Creative Commons licence with the same Licence
Elements."

6. On 6.2, which as revised says "This Licence is the entire agreement
between the parties with respect to the Work licensed here. It replaces any
earlier understandings, agreements or representations with respect to the
Work not specified here", the difference from the generic " This License
constitutes the entire agreement between the parties with respect to the
Work licensed here. There are no understandings, agreements or
representations with respect to the Work not specified here. Licensor shall
not be bound by any additional provisions that may appear in any
communication from You. This License may not be modified without the mutual
written agreement of the Licensor and You" is to make clear, I hope, that
the parties can always reach a different agreement later if they want to.

I think that's all for now- further comments welcomed!

--
Jonathan Mitchell QC

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