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  • From: David Illsley <david AT illsley.org>
  • To: Jonathan Mitchell <website3 AT jonathanmitchell.info>
  • Cc: Creative Commons UK <cc-uk AT lists.ibiblio.org>
  • Subject: Re: [Cc-uk] Revised draft Scottish licence
  • Date: Wed, 20 Apr 2005 08:11:46 +0100

Thanks for the reply...
On 19 Apr 2005, at 23:47, Jonathan Mitchell wrote:

<SNIP>

1. Taking 2.1.i first, which says "you must… keep intact all notices that
refer to this Licence…", 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.
I read the English variation to mean that if, in creating a derivative work of a CC-EW work, and releasing CC-Generic, I can remove the CC-EW link as it 'does not refer to the copyright notice or licensing of the Work'. Having re-read Generic, it appears that for total conformity, even this sensible loophope probably isn't compatible. (My concern is that there are links to multiple licences in a derivative work and it isn't clear which one applies to the derivative work as a whole)

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.
My concern was not over to definition of derivative works, but that it provides a hole through which to exploit the next bit.
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.
Ah, it is as I hoped. Good.

<SNIP>

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.
What effect does it have on previous agreements though?

Thanks for the detailed responses,
David

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