Here is Mike Godwin's (WMF counsel) take on the moral rights language in CC 3.0.
---------- Forwarded message ---------- From: Mike Godwin mnemonic@gmail.com Date: Jul 20, 2007 11:08 AM Subject: Re: CC 3.0 licenses To: Erik Moeller erik@wikimedia.org Cc: Mike Godwin mnemonic@gmail.com
Dear Erik,
Please feel free to forward this note to the list regarding CC 3.0
In the United States, where "applicable law" is now generally understood by American courts to include the right to parody and the right to engage in fair use, the clause "Except ... as may be otherwise permitted by applicable law" (let's call it the "Except" clause) does much to undercut the seemingly broad scope of the moral-rights language that some take to be mandated by the Berne copyright convention. The same is true for other nations (notably the United Kingdom and Switzerland) that take nonstandard views about how to enforce claims that other nations would interpret as moral-rights claims.
My understanding is that there is not any universal international consensus, even under Berne, about how moral rights should be enforced. What seems to me to be the case is that the drafters of CC 3.0 are attempting to accommodate the differences in national-level enforcement of moral rights with the "Except" clause. In effect, CC 3.0 seems to me to be written NOT to *enforce* a restrictive vision of moral rights but INSTEAD to *dodge* or *avoid* the question of whether and how moral rights should be enforced under a particular nation's laws. The clear aim, it seems to me, is to allow the same CC 3.0 language to be used generally, whether in a nation like Japan that (apparently) has strong enforcement of moral-rights claims or in a nation like the United States, where moral rights claims are weakly enforced if at all, and where moral-rights claims are severely constrained by national legal norms.
The preceding can be interpreted as restating what CC's counsel has said on the subject.
There's a pretty good law-review article about this subject available at http://www.harvardilj.org/print/58?sn=0.
--Mike Godwin General Counsel Wikimedia Foundation
On Jul 19, 2007, at 11:28 PM, Erik Moeller wrote:
Mike -
there's a hot thread on the "Wikimedia Commons" list about the CC 3.0 licenses, specifically, the "moral rights" clauses therein, which some consider an unacceptable restriction of freedom. In practice, users uploading CC 3.0 files are currently getting a "license disputed" warning, which I think is a very unfortunate state of affairs. See the "thread view" of:
http://lists.wikimedia.org/pipermail/commons-l/2007-July/002117.html
The relevant section from CC-BY-SA 3.0 is:
Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.
http://creativecommons.org/licenses/by/3.0/legalcode
The official response from CCi's legal counsel is here:
http://lists.wikimedia.org/pipermail/commons-l/2007-July/002151.html
I'm not convinced there's any substantial issue with the wording, but it would be good at this point, I think, to get a response from you. You may wish to subscribe to the Wikimedia Commons mailing list at
http://lists.wikimedia.org/mailman/listinfo/commons-l
or I can forward any comments you would like to make.
Zitat von Erik Moeller erik@wikimedia.org:
Here is Mike Godwin's (WMF counsel) take on the moral rights language in CC 3.0.
We have seen many opinions now. The case is legally complex. What I miss is a binding vote probably by the Wikimedia Foundation on this issue.
As an immediate measure I support the idea of Samuli Lintula to include the Commons license short text in our license templates.
I also support the idea of Magnus Manske permitting the 3.0 licenses on commons but not to include them on the selection box.
Cheers, Robin
On 7/20/07, Robin Schwab contact@robinschwab.ch wrote:
We have seen many opinions now. The case is legally complex. What I miss is a binding vote probably by the Wikimedia Foundation on this issue.
All the lawyers consulted have unanimously said that CC 3.0 is legally safe for us to use. IMHO there's no reason for any scare warnings or removal from the selector, only for a clarification of the legal terminology used in accordance with the statements made on this list.
This shouldn't be a Board-level decision, but I'd be fine with Sue making an official WMF statement on this once she's back from vacation & Wikimania (August 5+).
On 20/07/07, Erik Moeller erik@wikimedia.org wrote:
On 7/20/07, Robin Schwab contact@robinschwab.ch wrote:
We have seen many opinions now. The case is legally complex. What I miss is a binding vote probably by the Wikimedia Foundation on this issue.
All the lawyers consulted have unanimously said that CC 3.0 is legally safe for us to use. IMHO there's no reason for any scare warnings or removal from the selector, only for a clarification of the legal terminology used in accordance with the statements made on this list.
If the licence is a free content licence, it's a free content licence. Though we should have a CC 3.0 page, linking to the clarification from CC and the internal legal opinion from Mike, noting that some (e.g. me!) have been confused by the wording, and that CC notes that clarification would be good, but that all relevant parties who are legal professionals agree it's legally clear.
- d.
The reasoning below appears to hinge on the notion that the 'except clause' is either vague about which law applies, or that it expects that the law where a dispute is happening is which applies.
However, the creative commons ported licenses claim to apply the laws of a specific jurisdiction. For example:
"6.4. This Licence shall be governed by the law of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales." http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode
I don't understand how you can write a license which says:
* This agreement is subject to the laws of X (a place where Y is not permitted by law) * This license is violated if you do Y, unless Y otherwise allowed by applicable law.
And not be creating an effective prohibition against Y, even in jurisdictions where Y would normally be allowed, because the performance of Y (an act not permitted by the law that the parties agreed to be bound by) terminates the licenses, without which the recipient of the work has no ability to "Reproduce, Distribute or Publicly Perform" at all.
The latter part of the 'except clause' is interesting:
"Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise."
With exception of the example "(e.g. Japan)" and the words "any exercise", I think this text is exactly what the entirety of the except clause should have been. The addition of the word "any" completely ruins it, and will certainly influence the interpretation of the preceding text. It's clear from this text that the licenses does not maximally wave rights which break the freeness of the licenses except where the applicable law would prevent any action under the license. It's quite possible that the applicable law could be a law not local to the recipient, as per the license, not aggressive enough to active the moral rights waver, but still prohibit some kinds of derivatives.
On 7/20/07, Erik Moeller erik@wikimedia.org wrote:
Here is Mike Godwin's (WMF counsel) take on the moral rights language in CC 3.0.
---------- Forwarded message ---------- From: Mike Godwin mnemonic@gmail.com Date: Jul 20, 2007 11:08 AM Subject: Re: CC 3.0 licenses To: Erik Moeller erik@wikimedia.org Cc: Mike Godwin mnemonic@gmail.com
Dear Erik,
Please feel free to forward this note to the list regarding CC 3.0
In the United States, where "applicable law" is now generally understood by American courts to include the right to parody and the right to engage in fair use, the clause "Except ... as may be otherwise permitted by applicable law" (let's call it the "Except" clause) does much to undercut the seemingly broad scope of the moral-rights language that some take to be mandated by the Berne copyright convention. The same is true for other nations (notably the United Kingdom and Switzerland) that take nonstandard views about how to enforce claims that other nations would interpret as moral-rights claims.
My understanding is that there is not any universal international consensus, even under Berne, about how moral rights should be enforced. What seems to me to be the case is that the drafters of CC 3.0 are attempting to accommodate the differences in national-level enforcement of moral rights with the "Except" clause. In effect, CC 3.0 seems to me to be written NOT to *enforce* a restrictive vision of moral rights but INSTEAD to *dodge* or *avoid* the question of whether and how moral rights should be enforced under a particular nation's laws. The clear aim, it seems to me, is to allow the same CC 3.0 language to be used generally, whether in a nation like Japan that (apparently) has strong enforcement of moral-rights claims or in a nation like the United States, where moral rights claims are weakly enforced if at all, and where moral-rights claims are severely constrained by national legal norms.
The preceding can be interpreted as restating what CC's counsel has said on the subject.
There's a pretty good law-review article about this subject available at http://www.harvardilj.org/print/58?sn=0.
--Mike Godwin General Counsel Wikimedia Foundation
On Jul 19, 2007, at 11:28 PM, Erik Moeller wrote:
Mike -
there's a hot thread on the "Wikimedia Commons" list about the CC 3.0 licenses, specifically, the "moral rights" clauses therein, which some consider an unacceptable restriction of freedom. In practice, users uploading CC 3.0 files are currently getting a "license disputed" warning, which I think is a very unfortunate state of affairs. See the "thread view" of:
http://lists.wikimedia.org/pipermail/commons-l/2007-July/002117.html
The relevant section from CC-BY-SA 3.0 is:
Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.
http://creativecommons.org/licenses/by/3.0/legalcode
The official response from CCi's legal counsel is here:
http://lists.wikimedia.org/pipermail/commons-l/2007-July/002151.html
I'm not convinced there's any substantial issue with the wording, but it would be good at this point, I think, to get a response from you. You may wish to subscribe to the Wikimedia Commons mailing list at
http://lists.wikimedia.org/mailman/listinfo/commons-l
or I can forward any comments you would like to make.
-- Toward Peace, Love & Progress: Erik
DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees.
-- Toward Peace, Love & Progress: Erik
DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees.
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