[Foundation-l] Decision on Creative Commons 3.0

[Ray Saintonge]

Mike Linksvayer wrote:

>On Sat, 2007-06-02 at 20:38 -0400, Delirium wrote:
>  
>
>>Samuel Klein wrote:
>>    
>>
>>>I can see a question about whether to use CC licenses at all, but can't 
>>>see any reason to use 2.5 and not 3.0.
>>>      
>>>
>>Version 3.0 includes the following language restricting modifications, 
>>which is not included in 2.5:
>>
>>"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.
>
You can't paper this over by saying that this is only a US problem.  
Weak as it may be US copyright law does have a moral rights clause.  
This involves how fundamental legal conceptions differ between countries 
that draw their law from English Common Law and those that draw their 
law from the Napoleonic Code.  Need we refight the Battle of Waterloo?  
The United States involvement in the War of 1812 still did not lead to 
its abandonment of English common law in favour of Napoleonic law.

The Napoleonic attitude seems to suggest that anything that the author 
or his heirs or the state don't like is by definition derogatory and 
prejudicial to the author's honour and reputation.  In common law 
countries such claims need to be proved.  In some, moral rights expire 
with the author's death; in others it does not extend longer than 
copyrights.

The expression, "Except ... as may be otherwise permitted by applicable 
law" is completely misleading unless we are certain about what 
applicable law is being referenced.  Adding such weasel words to an 
agreement will solve nothing.  The internet and the WMF web sites are 
international in their operations, even when the corporate headquarters 
must necessarily be in one country.  French courts have found the 
colorization of American movies to be a breach of moral rights, and the 
Spanish courts are dealing with a claim by the Juan Miró estate against 
eBay (an American company) over whether certain variations in one of 
their logos violated Miró's moral rights.  What is the "applicable law" 
in these circumstances?  Do we really want something that is perfectly 
legal in the contributor's home country to be penalized in some other 
country's courts.

The wording of CC3.0's moral rights clause may very well be drawn from 
international convention, but the fact remains that even if a country 
adopts such conventions interpretation of the problem terms will remain 
in accordance with domestic law.

Ec