[Commons-l] Fwd: CC 3.0 licenses

[Erik Moeller]

Here is Mike Godwin's (WMF counsel) take on the moral rights language in CC 3.0.

---------- Forwarded message ----------
From: Mike Godwin <mnemonic at gmail.com>
Date: Jul 20, 2007 11:08 AM
Subject: Re: CC 3.0 licenses
To: Erik Moeller <erik at wikimedia.org>
Cc: Mike Godwin <mnemonic at 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.