[Commons-l] Waiving Canadian moral rights?

[Andy Kaplan-Myrth]

Hi,

I'm one of the Project Leads for Creative Commons Canada, and since this 
thread came to my attention I thought I would try to add some context.

Padraic Ryan wrote:
> Canada, apparently, may be
> a unique jurisdiction in that it allows content creators to waive moral
> rights.

I would agree with geni that other common law jurisdictions are likely 
similar in that they allow moral rights to be waived to some degree.

The situation is not as simple as this suggests, of course. While the 
Canadian Copyright Act says that moral rights "may be waived in whole or 
in part", there is disagreement as to whether they can be waived *in 
general*, or if waivers can only apply for particular uses of a work. 
For moral rights waivesrs to benefit the open community, they would need 
to be general waivers for all uses of the work.

I should note that there are two categories of moral rights: the right 
to attribution, and the right to integrity. Since open licences like CC 
require attribution anyhow, that moral right is not an issue. When we 
talk about the possibility of waiving moral rights, we're only talking 
about the right of integrity -- I take it this is what Padraic meant.

> Although this does seem to be a complex, unanswered, issue, I think we
> should encourage Commons users creating Canadian works to waive these
> rights.

So here's the deal. In past years, when CC had no policy w.r.t. moral 
rights, each jurisdiction that had to deal with moral rights did their 
own thing. In Canada, the version 1.0 licence retained moral rights 
because we were trying to stay as close to the US CC licence as 
possible. In versions 2.0 and 2.5 of the Canadian CC licences, we waived 
the moral right of integrity. This choice was taken for just the reason 
Padraic is interested in here: some in the community feel that waiving 
moral rights is required in order for the licences to be libre.

For the 3.0 Canada licences, we are following the CC policy for moral 
rights that resulted from extensive discussion. Given this policy and 
the issues around whether moral rights can be waived in general, the CC 
Canada 3.0 licences will keep the moral right of integrity intact.

I would note that the Canadian 2.5 licences will still be out there once 
the 3.0 version is released, and Canadians who want to take their 
chances with waiving moral rights can still use the old versions.

Cheers,
Andy

-- 
Andy Kaplan-Myrth, LL.B., M.A.
Barrister & Solicitor
Joint Project Lead, Creative Commons Canada
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