[Commons-l] Fwd: CC 3.0 licenses

Fri Jul 20 19:32:58 UTC 2007

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 at 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 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.
>
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