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Subject: Creative Commons Jurisdiction Teams in Sub-Saharan Africa

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Chronological Thread  
  • From: Tobias Schonwetter <tobias AT creativecommons.org>
  • To: CC Africa mailing list <ccafrica AT lists.ibiblio.org>, Moses Mulumba <Mulumbam AT gmail.com>, Primah Kwagala <kwagalap AT gmail.com>, Kelsey Wiens <kelseywiens AT gmail.com>, Paul Kihwelo <paulkih AT yahoo.com>, Tony Kakooza <tony AT sipilawuganda.com>, Paul Asiimwe <paul AT sipilawuganda.com>, Dick Kawooya <dkawooya AT gmail.com>, Jacques Murinda <jacques.murinda AT olerwanda.org>, Toby Schonwetter <tobiasschonwetter AT gmail.com>, Ayo Kusamotu <kusamotu AT yahoo.com>, Kayode Yussuf <kayusyussuf AT yahoo.com>, Charles Batambuze <batambuze_charles AT hotmail.com>, David Kabanda <kabanda_d AT yahoo.co.uk>, Saphy Bulu <saphylal AT yahoo.com>, Edefe Ojomo <efeojomo AT gmail.com>, Helen Chuma-Okoro <helenchuma AT gmail.com>, Maximillian Kaizen <max.kaizen AT gmail.com>
  • Subject: [ccAfrica] Fwd: [cc-affiliates] 4.0d3: Detailed Affiliate Review Requested
  • Date: Tue, 26 Feb 2013 15:40:26 +0200

Dear colleagues and friends:

a few days ago I wrote you an email regarding the review of the latest draft of the CC 4.0 licences and I made the point that this is important for at least the lawyers among us to participate in these discussions because these licences will be around for a while and we may not have a chance to change them anytime soon again. In the past, the process of porting (i.e. having national versions of the CC licences) ensured that licences were locally tested against the applicable laws - but there may be no porting in the future any longer. But this requires that the generic licences work in as many countries as possible. 

I received an email earlier today from Diane from CC HQ that made me think that I should stress yet another point. I take it that all on this list believe in the concept of Creative Commons - and the licences are the very basis for better access opportunities we try to achieve in our respective countries. Now, if it turns out at a later stage that for some legal reason the licences are invalid or not enforceable in a certain country because we have not checked that properly beforehand we not only have no workable access tool to promote in our countries any longer (I mean who uses an unenforceable licence) but we may also hurt the larger Creative Commons community because news would travel fast that CC licences have been held  to be unenforceable in country xyz. So what I am trying to get across here is that: please please please put some time aside and look at the latest version of the licences from the perspective of your local laws and let us know if something could be problematic. I have copied below the part of Diane's email that summarises the key changes made in the licences so far. And if you can, please participate in the call with Diane and others discussing the latest draft (you can indicate your availability here: https://www.doodle.com/ktfvvs3xqhbqxk6d - and thanks to those who have already responded.

Let me know if you have any questions.

Best,

Tobias  
---
Dr. Tobias Schonwetter
Regional Coordinator: Africa
Creative Commons

twitter: @tobyschonwetter
linkedin: 

Please support CC in shaping the future of sharing: https://creativecommons.net/donate/






Begin forwarded message:

From: Diane Peters <diane AT creativecommons.org>
Subject: [cc-affiliates] 4.0d3: Detailed Affiliate Review Requested
Date: 26 February 2013 06:01:21 AM SAST

Dear all,

[…]
 
When you undertake your review, please keep a few things in mind.  These are all considerations you're well aware of already, but they're worth repeating.
  • By design, the licenses will operate differently jurisdiction to jurisdiction.  Relatively few jurisdictions have established database rights, for example, so under the laws of jurisdictions where those do not exist the license is not (and should not be) granting those rights.  If there are improvements you want to suggest to make this clearer, please let us know.
  • The licenses now allow for customized disclaimers of warranties and limits on liabilities.  The default, however, is a complete disclaimer and limitation to the extent possible.  We know that some jurisdictions do not allow for a full disclaimer or limit, and we account for that in two ways in the license:  through the inclusion of that phrase ("To the extent possible.."), and an alert that may be the case at the end of both 4(a) and 4(b).  Assuming a licensor does not create a custom disclaimer or limit, we want to be sure that the disclaimer is effective and enforceable to the extent it can be at all.
  • This same drafting style (using “to the extent possible”) is used elsewhere in the licenses, to account for other differences such as for the waiver//non assert of moral rights and the collection of royalties under collecting society regimes.  We have been told by several affiliates that this is an appropriate and effective way of tempering those provisions to account for variances between jurisdictions.  Please watch for those and let us know if you are concerned about those working effectively.
  • We have retained the reformation and severance provision (Section 7(b)) in the event a provision cannot be enforced as written.  Our goal is that to the extent any provision as written, the worst case is that particular provision is reformed or removed but the remainder of the license stays in effect.
  • We intentionally avoided using at least some terms that have special meaning in the copyright context.  This is to avoid misinterpretations, and to avoid claims that we've written the license for some jurisdictions and not others where different terms are used.  "Share" and Licensed Material" are two of those. 
  • Adapted Material is one of the most important definitions in the license and we encourage you to review it closely.  Except in three specific instances [FN2], the definition is tied to whether or not an adaptation or derivative is made under applicable copyright law.  Please check that definition carefully.
  • The license grant (Section 2) is designed to effectively and fully grant all rights necessary under Copyright and Similar Rights in your jurisdiction (note this definition includes Sui Generis Database Rights).  Again, please review that as it's the centerpiece of the licenses.
  • Please consider whether any terms would be problematic to translate into languages in your jurisdiction.  As we’ve mentioned, we are planning official translations of the international license suite.  We have come across problematic terms to translate in the past, and want to anticipate those now rather than after publication so we can adjust if possible.
[…]

Diane 


[FN1]  Co-ment is one we've considered.  We're looking at a few others as well.

[FN2]  Those three are synching, where Sui Generis Database Rights are in play, and Section 2(a)(3), where we make clear that making permitted technical modifications never results in Adapted Material (without more).

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  • [ccAfrica] Fwd: [cc-affiliates] 4.0d3: Detailed Affiliate Review Requested, Tobias Schonwetter, 02/26/2013

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