[Foundation-l] Decision on Creative Commons 3.0

[Anthony]

On 6/3/07, Thomas Dalton <thomas.dalton at gmail.com> wrote:
>
> > > "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."
> >
> > The language is not intended to introduce moral rights where none exist
> > (which is basically only the U.S.) -- "Except ... as may be otherwise
> > permitted by applicable law" -- e.g., in the U.S. mutilation (or
> > whatever) is permitted because there is no right of integrity that
> > prohibits it. In retrospect wording like "In those jurisdictions in
> > which the right of integrity exists, and except ..." would have made
> > this more obvious. We will put this in the hopper for 4.0, which
> > hopefully is a very long way off. However, I do not see how 3.0 can
> > reasonably be thought to endanger the commons (generic and Wikimedia
> > Commons in particular) as it does not attempt to add any restriction
> > beyond what is inherent in each jurisdiction's moral rights or lack
> > thereof. Note that I work for CC but am not a lawyer and this is not a
> > legal opinion.
>
> IANAL, but that's not how I would interpret the language. "Except as
> may be otherwise pe[r]mitted by applicable law" to me means if there is a
> law that specifically says you can do something, then you can do it.
> It doesn't say that if there is a lack of a law that says you can't,
> then you can.


That's how I read it as well, in part because the wording is that "The
license granted in Section 3 above is expressly made subject to and limited
by the following restrictions".  If this is a limitation on the grant of
license, I don't see how else to read it (inside the US).  I'm not sure what
courts would do.  Would they would look to the intent of the CC lawyers, or
would they look to the intent of the copyright owner?  Could the license be
interpreted differently in different court cases (obviously yes, but it
could it *legitimately* be interpreted differently)?

This is depressing, because it points out just how difficult it is to create
a free license which works consistently in as many jurisdictions as
possible.  International copyright law is so incredibly confusing.

Anthony