2009/1/21 Anthony <wikimail(a)inbox.org>rg>:
As in CC-BY-SA 3.0 Unported? You know, the one that
says "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"?
That quote is pulled out of context in a fashion that completely
obscures its meaning and intent. When this issue was discussed on
commons-l, Catharina Maracke, the head of CCi, provided the following
explanation:
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 Catharine wrote then, this is an issue of clarity. I hope that it
can be addressed in future revisions, but I don't regard it as a
stumbling block for adopting the Unported license. Furthermore, per
4.b.iii., CC-BY-SA is mutually interchangeable with the various
jurisdiction-specific licenses.
--
Erik Möller
Deputy Director, Wikimedia Foundation
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