[Commons-l] Fwd: CC 3.0 licenses

Here is Mike Godwin's (WMF counsel) take on the moral rights language in CC 3.0. ---------- Forwarded message ---------- From: Mike Godwin &lt;mnemonic(a)gmail.com&gt; Date: Jul 20, 2007 11:08 AM Subject: Re: CC 3.0 licenses To: Erik Moeller &lt;erik(a)wikimedia.org&gt; Cc: Mike Godwin &lt;mnemonic(a)gmail.com&gt; Dear Erik, Please feel free to forward this note to the list regarding CC 3.0 In the United States, where "applicable law" is now generally understood by American courts to include the right to parody and the right to engage in fair use, the clause "Except ... as may be otherwise permitted by applicable law" (let's call it the "Except" clause) does much to undercut the seemingly broad scope of the moral-rights language that some take to be mandated by the Berne copyright convention. The same is true for other nations (notably the United Kingdom and Switzerland) that take nonstandard views about how to enforce claims that other nations would interpret as moral-rights claims. My understanding is that there is not any universal international consensus, even under Berne, about how moral rights should be enforced. What seems to me to be the case is that the drafters of CC 3.0 are attempting to accommodate the differences in national-level enforcement of moral rights with the "Except" clause. In effect, CC 3.0 seems to me to be written NOT to *enforce* a restrictive vision of moral rights but INSTEAD to *dodge* or *avoid* the question of whether and how moral rights should be enforced under a particular nation's laws. The clear aim, it seems to me, is to allow the same CC 3.0 language to be used generally, whether in a nation like Japan that (apparently) has strong enforcement of moral-rights claims or in a nation like the United States, where moral rights claims are weakly enforced if at all, and where moral-rights claims are severely constrained by national legal norms. The preceding can be interpreted as restating what CC's counsel has said on the subject. There's a pretty good law-review article about this subject available at <http://www.harvardilj.org/print/58?sn=0>. --Mike Godwin General Counsel Wikimedia Foundation On Jul 19, 2007, at 11:28 PM, Erik Moeller wrote: Mike - there's a hot thread on the "Wikimedia Commons" list about the CC 3.0 licenses, specifically, the "moral rights" clauses therein, which some consider an unacceptable restriction of freedom. In practice, users uploading CC 3.0 files are currently getting a "license disputed" warning, which I think is a very unfortunate state of affairs. See the "thread view" of: http://lists.wikimedia.org/pipermail/commons-l/2007-July/002117.html The relevant section from CC-BY-SA 3.0 is: 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. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise. http://creativecommons.org/licenses/by/3.0/legalcode The official response from CCi's legal counsel is here: http://lists.wikimedia.org/pipermail/commons-l/2007-July/002151.html I'm not convinced there's any substantial issue with the wording, but it would be good at this point, I think, to get a response from you. You may wish to subscribe to the Wikimedia Commons mailing list at http://lists.wikimedia.org/mailman/listinfo/commons-l or I can forward any comments you would like to make. -- Toward Peace, Love & Progress: Erik DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees. -- Toward Peace, Love & Progress: Erik DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees.