First, I think there has been some misreading of the license terms. Please trust me that CC does not support "moral rights," and that these are complex matters.
The clause in question merely says that the license does not seek to invalidate or interfere with moral rights. The primary reason for that, as I understand it, is that there is some concern that a license which attempts to do the impossible may thereby be ruled completely invalid. Most older versions of CC licenses simply ignored moral rights in a way which might appear to be attempting to waive them. One exception was the Canadian localization, which attempted to waive them (perhaps successfully, under Canadian law).
As a practical matter, the different ways to waive moral rights are complicated and inconsistent across jurisdictions. Additionally, in jurisdictions where moral rights are strong (important), attempts to weaken them are politically dangerous.
So the best approach seemed to be to keep CC licensing out of the moral rights business altogether. These are copyright licenses. They explicitly do not (and cannot, in many important jurisdictions) touch on moral rights issues.
In fact, nothing has changed between previous versions of CC licenses and this one, in terms of the actual effect of the licenses. Before, the licenses said nothing at all about moral rights. Now, the licenses simply explicitly acknowledge that they say nothing at all about moral rights.
I see no reason to get excited.
--Jimbo
On 6/6/07, Jimmy Wales jwales@wikia.com wrote:
Now, the licenses simply explicitly acknowledge that they say nothing at all about moral rights.
HOWEVER,
You must not:
"subject the Work to any derogatory treatment as defined in the Copyright, Designs and Patents Act 1988."
http://creativecommons.org/licenses/by-sa/2.0/uk/legalcode
That looks like a positive statement to me (for the record English and Welsh law does allow you to waive your moral rights although I'm not quite sure how you would do that in an online context). It's using copyright to enforce things that are not quite copyright.
"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."
http://creativecommons.org/licenses/by-sa/3.0/legalcode
Again a positive statement backing up moral rights in the form of copyright.
The term "moral rights" does not appear once in either document.
Jimmy Wales wrote:
First, I think there has been some misreading of the license terms. Please trust me that CC does not support "moral rights," and that these are complex matters.
I agree that these are complex matters, but I am not convinced that a person who reads this provision differently from you is necessarily the one misreading the terms. Those who actually wrote in those provisions may convinced you of what they intended, but that does not make them right. Relying on trust alone for the interpretation of legal texts is not a sound practice.
The clause in question merely says that the license does not seek to invalidate or interfere with moral rights.
It does indeed avoid using the term "moral rights", but at the same time it forbids the user from doing what is not allowed in a typical moral rights clause. It quacks like a duck, so why not call it that.
The primary reason for that, as I understand it, is that there is some concern that a license which attempts to do the impossible may thereby be ruled completely invalid. Most older versions of CC licenses simply ignored moral rights in a way which might appear to be attempting to waive them.
"Might appear" That's a shaky basis. If nothing is said about it that implies nothing about it. Gratuitous clauses only give people more to argue about. A severability clause to the effect that a rejection by the courts of any provision in the licence does not invalidate any other clause could be more appropriate.
One exception was the Canadian localization, which attempted to waive them (perhaps successfully, under Canadian law).
Canada is not one of the countries creating problems over moral rights. So far the only successful moral rights case here has been in a lower court which provided injunctive relief to remove red Christmas ribbons from the neck of sculpted geese. The tendency in the Canadian courts over the integrity right appears to be to require the plaintiff to carry the burden of prooving that his honor or reputation was damaged.
As a practical matter, the different ways to waive moral rights are complicated and inconsistent across jurisdictions. Additionally, in jurisdictions where moral rights are strong (important), attempts to weaken them are politically dangerous.
Sure, and this is shaping up as a common law countries versus civil law countries issue.
So the best approach seemed to be to keep CC licensing out of the moral rights business altogether. These are copyright licenses. They explicitly do not (and cannot, in many important jurisdictions) touch on moral rights issues.
Sure; then why not say that directly, and completely avoid the weaseling that's in there now.
In fact, nothing has changed between previous versions of CC licenses and this one, in terms of the actual effect of the licenses. Before, the licenses said nothing at all about moral rights. Now, the licenses simply explicitly acknowledge that they say nothing at all about moral rights.
Again it does not say that directly.
I see no reason to get excited.
People are probably excited because it creates an unfree licence. We have tried in various projects to choose a broad compliance with copyright so that the material can be re-used in most countries. You have repeatedly made that point. Now we are advising people in some countries not to use some material if it would violate moral rights in that country. Is the inconsistency so difficult to see?. Remember too that we are blessed with an unending supply of Wikilawyers willing to take enforce the most disadvantageous position they can find. This makes us considerably less free.
Ec
On 6/7/07, Jimmy Wales jwales@wikia.com wrote:
On Jun 7, 2007, at 11:16 AM, Ray Saintonge wrote:
People are probably excited because it creates an unfree licence.
I don't agree that localizations of licenses which take note of local laws that can not be affected by a license makes anything less free at all.
The concern we have is not over the localized licenses, it is over the "unported" license.
Jimmy Wales wrote:
In fact, nothing has changed between previous versions of CC licenses and this one, in terms of the actual effect of the licenses. Before, the licenses said nothing at all about moral rights. Now, the licenses simply explicitly acknowledge that they say nothing at all about moral rights.
If this were true then there would be little problem with it, but that's not what the license text says. The text prohibits certain reuses of content, *as part of the license*, which is different from simply acknowledging that the license has no effect on other rights that may be granted in legislation. It also is *very* unclear when one may ignore that prohibition, since the phrase "except as permitted by law" doesn't usually mean what the CC team is claiming it means (that you may ignore the license terms unless the law explicitly prohibits you from doing so).
-Mark
First, I think there has been some misreading of the license terms. Please trust me that CC does not support "moral rights," and that these are complex matters.
The clause in question merely says that the license does not seek to invalidate or interfere with moral rights.
Forget everything you've talked about with the writers. Forget about intentions and principles and trust and all of that. Now read the actual words of the clause. How do you interpret the plain English wording?
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