[Foundation-l] RfC: License update proposal

[Erik Moeller]

2009/1/21 Anthony <wikimail at inbox.org>:
> As in CC-BY-SA 3.0 Unported?  You know, the one that says "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"?

That quote is pulled out of context in a fashion that completely
obscures its meaning and intent. When this issue was discussed on
commons-l, Catharina Maracke, the head of CCi, provided the following
explanation:

> Generally speaking, moral rights have to be addressed in the
> unported license to assure that this license would be enforceable
> by law in every jurisdiction, whether moral rights are exist or
> not. The criticism, that the wording of the moral rights section in
> the unported license could be read as if the licensee has the
> obligation "....to not distort, mutilate, modify or take any other
> derogatory action in relation to the work which would be
> prejudicial to the original authors honor or reputation" in every
> jurisdiction, even if moral rights are do not exist, is not legally
> correct.
>
> The important phrase "except otherwise permitted by applicable law"
> refers to every jurisdiction, whether moral rights exist or not.
> This means, that in a jurisdiction, where moral rights do exist,
> this whole sentence is dispensable, because the applicable law does
> not permit anything else, meaning we have to respect moral rights
> (and in particular the moral right of integrity), meaning the
> licensee is not allowed to "distort, mutilate, modify or take any
> other derogatory action in relation to the work which would be
> prejudicial to the original authors honor or reputation" - whether
> we like it or not.
>
> In a jurisdiction, where moral rights do not exist, the first part
> of the sentence "or as otherwise permitted by applicable law"
> explicitly makes an exception to the rest of the sentence "....to
> not distort, mutilate, modify or take any other derogatory action
> in relation to the work which would be prejudicial to the original
> authors honor or reputation". This exception ensures that in a
> jurisdiction, where moral rights do not exist, the latter part of
> the sentence will not be applicable: "except otherwise permitted by
> applicable law" means "except the respective copyright legislation
> permits every adaptation of the work", which is (only) the case, if
> moral rights are do not exist and not included in the respective
> law. The only problem here is the understanding of the wording "as
> otherwise permitted by applicable law". The right "to distort,
> mutilate, modify or take any other derogatory action in relation to
> the work which would be prejudicial to the original authors honor
> or reputation" will not be explicitly allowed by applicable
> copyright law, but you need to know, that it is not prohibited, if
> moral rights are do not exist.
>
> However, I also see the point, that besides being legally correct,
> CC licenses should be easily to understand. If people don't use CC
> licenses, because they don't understand them, we would have failed,
> even if the licenses are "accurate" in view of the law. We need to
> find the balance between legally well drafted licenses and a simple
> language. I agree, that the wording of the moral rights section in
> the "unported" license could probably have been drafted in a
> simpler way and less confusing so that everyone understands and it
> does not have to be discussed and explained in lots of E- mails.

As Catharine wrote then, this is an issue of clarity. I hope that it
can be addressed in future revisions, but I don't regard it as a
stumbling block for adopting the Unported license. Furthermore, per
4.b.iii., CC-BY-SA is mutually interchangeable with the various
jurisdiction-specific licenses.
-- 
Erik Möller
Deputy Director, Wikimedia Foundation

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