[Foundation-l] "Terms of use" : Anglo-saxon copyright law and Anglo-saxon lawyers : a disgrace for Continental Europeans

[Oliver Keyes]

I've actually been doing a lot of research on the history of copyright law
on-wiki - see http://en.wikipedia.org/wiki/User:Ironholds/statute for
example - and I've been focusing on the Berne Convention, later on. The
rationale for encyclopaedias (something that is not just common law, but in
some nations, statutory) is essentially that; encyclopedias contain
thousands of tiny, two-line long articles, and attribution is a bitch.

On 14 December 2011 06:09, Ryan Kaldari <rkaldari at wikimedia.org> wrote:

> Sorry about the confusion. I was talking most recently about the GFDL,
> which does not mention moral rights. CC-BY-SA does mention moral rights
> (to state that it does not affect them). Interestingly, the U.S. port of
> the CC-BY-SA license does not include a disclaimer about moral rights,
> but this is irrelevant since the WMF uses the unported license, not the
> U.S. version. The unported license is designed to be legally useful in
> as many countries as possible, and during the 4.0 draft process they are
> hoping to improve this aspect of the license. From everything I've
> heard, Creative Commons is hoping to move away from ported licenses, as
> these have been a major headache for everyone, especially in regards to
> license compatibility. The idea to have numerous localized Terms of Use
> for Wikipedia (based on the laws of each country) is an interesting
> idea. It would probably be a nightmare to maintain, but we've managed
> worse. I would love to hear Geoff's thoughts on this.
>
> Getting back to your original point, I suppose it's true that the Terms
> of Service could affect the protection of moral rights (in certain
> countries), even if the license explicitly doesn't. However, after doing
> more research into this, it looks like it's a moot issue. Moral rights
> (per Common law) are for the protection of literary and artistic works,
> not factual reference works. Works like encyclopedias, dictionaries,
> newspaper articles, etc. are not covered by moral rights. I imagine the
> reasoning behind this is that such works entail a minimum degree of
> creative "authorship" and are often published without attribution. If
> I'm mistaken in this conclusion, please let me know.
>
> Ryan Kaldari
>
> On 12/13/11 7:56 PM, Jussi-Ville Heiskanen wrote:
> > On Tue, Dec 13, 2011 at 11:37 PM, Ryan Kaldari<rkaldari at wikimedia.org>
>  wrote:
> >> On 12/13/11 12:14 PM, Jussi-Ville Heiskanen wrote:
> >>> Using an URL does allow the semblance of attribution, but does not
> >>> fulfil the legal requirements of moral rights. I find it mildly
> >>> distasteful, that
> >>> other jurisdictions laws are referred to as "exceptions for various
> cases",
> >>> when CC itself has committed itself to better internationalisation in
> its
> >>> 4.0 version.
> >> Actually, I was suggesting the opposite: that in many cases (in the GFDL
> >> days) we carved out exceptions (unofficially) to allow people to reuse
> >> our content without meeting the full requirements of the license (much
> >> less the moral rights requirements).
> > If it is unofficial, it sounds a bit grandiose to term the action as
> "carving
> > out". English language usage would be to use the phrase "turn a blind
> eye".
> >
> > And "if" as you previously claimed, the moral rights requirements are
> implicit
> > in the full licence requirements, why would you argue that stating them
> > in the TOS is redundant, but now seem to imply that the moral rights are
> > more stringent than the licence. Either moral rights are contained in the
> > licence, or not. I really hope 4.0 brings clarity, and also that WMF
> will go
> > forward from an unported licence to a fully internationalized TOS
> > implementation, the sooner the better.
> >
> >
>
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-- 
Oliver Keyes
Community Liason, Product Development
Wikimedia Foundation