[Foundation-l] Some thoughts on CC 3.0

[Ray Saintonge]

Jimmy Wales wrote:

>First, I think there has been some misreading of the license terms.   
>Please trust me that CC does not support "moral rights," and that  
>these are complex matters.
>
I agree that these are complex matters, but I am not convinced that a 
person who reads this provision differently from you is necessarily the 
one misreading the terms.  Those who actually wrote in those provisions 
may convinced you of what they intended, but that does not make them 
right.  Relying on trust alone for the interpretation of legal texts is 
not a sound practice.

>The clause in question merely says that the license does not seek to  
>invalidate or interfere with moral rights.  
>
It does indeed avoid using the term "moral rights", but at the same time 
it forbids the user from doing what is not allowed in a typical moral 
rights clause.  It quacks like a duck, so why not call it that.

>The primary reason for that, as
>I understand it, is that there is some concern that a license which  
>attempts to do the impossible may thereby be ruled completely  
>invalid.  Most older
>versions of CC licenses simply ignored moral rights in a way which  
>might appear to be attempting to waive them.  
>
"Might appear"  That's a shaky basis.  If nothing is said about it that 
implies nothing about it.  Gratuitous clauses only give people more to 
argue about.  A severability clause to the effect that a rejection by 
the courts of any provision in the licence does not invalidate any other 
clause could be more appropriate.

>One exception was the Canadian
>localization, which attempted to waive them (perhaps successfully,  
>under Canadian law).
>
Canada is not one of the countries creating problems over moral rights.  
So far the only successful moral rights case here has been in a lower 
court which provided injunctive relief to remove red Christmas ribbons 
from the neck of sculpted geese.  The tendency in the Canadian courts 
over the integrity right appears to be to require the plaintiff to carry 
the burden of prooving that his honor or reputation was damaged.

>As a practical matter, the different ways to waive moral rights are  
>complicated and inconsistent across jurisdictions.  Additionally, in  
>jurisdictions where
>moral rights are strong (important), attempts to weaken them are  
>politically dangerous.
>
Sure, and this is shaping up as a common law countries versus civil law 
countries issue.

>So the best approach seemed to be to keep CC licensing out of the  
>moral rights business altogether.  These are copyright licenses.   
>They explicitly do
>not (and cannot, in many important jurisdictions) touch on moral  
>rights issues.
>
Sure; then why not say that directly, and completely avoid the weaseling 
that's in there now.

>In fact, nothing has changed between previous versions of CC licenses  
>and this one, in terms of the actual effect of the licenses.  Before,  
>the licenses said
>nothing at all about moral rights.  Now, the licenses simply  
>explicitly acknowledge that they say nothing at all about moral rights.
>
Again it does not say that directly.

>I see no reason to get excited.
>
People are probably excited because it creates an unfree licence.  We 
have tried in various projects to choose a broad compliance with 
copyright so that the material can be re-used in most countries.  You 
have repeatedly made that point.  Now we are advising people in some 
countries not to use some material if it would violate moral rights in 
that country.  Is the inconsistency so difficult to see?.  Remember too 
that we are blessed with an unending supply of Wikilawyers willing to 
take enforce the most disadvantageous position they can find.  This 
makes us considerably less free.

Ec