So here's the explanation from Chatharina Maracke, the head of CCi.
Generally speaking, moral rights have to be addressed
in the
unported license to assure that this license would be enforceable
by law in every jurisdiction, whether moral rights are exist or
not. The criticism, that the wording of the moral rights section in
the unported license could be read as if the licensee has the
obligation "....to not distort, mutilate, modify or take any other
derogatory action in relation to the work which would be
prejudicial to the original authors honor or reputation" in every
jurisdiction, even if moral rights are do not exist, is not legally
correct.
The important phrase "except otherwise permitted by applicable law"
refers to every jurisdiction, whether moral rights exist or not.
This means, that in a jurisdiction, where moral rights do exist,
this whole sentence is dispensable, because the applicable law does
not permit anything else, meaning we have to respect moral rights
(and in particular the moral right of integrity), meaning the
licensee is not allowed to "distort, mutilate, modify or take any
other derogatory action in relation to the work which would be
prejudicial to the original authors honor or reputation" - whether
we like it or not.
In a jurisdiction, where moral rights do not exist, the first part
of the sentence "or as otherwise permitted by applicable law"
explicitly makes an exception to the rest of the sentence "....to
not distort, mutilate, modify or take any other derogatory action
in relation to the work which would be prejudicial to the original
authors honor or reputation". This exception ensures that in a
jurisdiction, where moral rights do not exist, the latter part of
the sentence will not be applicable: "except otherwise permitted by
applicable law" means "except the respective copyright legislation
permits every adaptation of the work", which is (only) the case, if
moral rights are do not exist and not included in the respective
law. The only problem here is the understanding of the wording "as
otherwise permitted by applicable law". The right "to distort,
mutilate, modify or take any other derogatory action in relation to
the work which would be prejudicial to the original authors honor
or reputation" will not be explicitly allowed by applicable
copyright law, but you need to know, that it is not prohibited, if
moral rights are do not exist.
However, I also see the point, that besides being legally correct,
CC licenses should be easily to understand. If people don't use CC
licenses, because they don't understand them, we would have failed,
even if the licenses are "accurate" in view of the law. We need to
find the balance between legally well drafted licenses and a simple
language. I agree, that the wording of the moral rights section in
the "unported" license could probably have been drafted in a
simpler way and less confusing so that everyone understands and it
does not have to be discussed and explained in lots of E- mails.
As she says in the last paragraph, if we are not able to be
understood in the end, we have failed. We'll try to make each of the
national licenses more clear. We'll also try to make the relevant
wording in the unported license easier to understand when we version
up. I just don't think we could fit a version up in the current
schedule while we're trying to get the local version 3's out of the
door right now.
On Jul 15, 2007, at 4:01 JST, David Gerard wrote:
But if this is not in fact the case I'm sure
Joichi will eventually
come back to this thread and clarify how the licenses don't mean what
they appear to mean.
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