BY-NC-SA (International) 3.0 Draft 1 Comments

Notes by section:

0

Does "as authorised by copyright" mean "by
relevant copyright  
exceptions", or "by copyright and any relevent
copyright  
excceptions", or are exceptions part of copyright
anyway?

1 a

I appreciate that "literary and artistic works"
is a Berne-ism, but  
the layperson is going to wonder whether audio works, video
and so on  
are covered. It might be worthwhile just explaining that all
kinds of  
creative works are covered.

*Please* clarify this if possible.

1 b

I assume that the concept of "adaptation" is a
genericisation of  
"derivative". But Berne uses the term
"derivative", and "adaptation"  
is listed as a kind of derivative. If this is a grey area
how about  
something like GPL-3's "a work based on the
program", for example "a  
new work based on the licensed work" or "a new
work containing some  
or all of the licensed work".

1 d

Surely for the purposes of this copyright license the
"author" is in  
fact just "the copyright holder"? Would it be
useful to identify the  
author as such rather than enumerating possible kinds of
author?

The performer will presumably hold the copyright on the
recording. If  
they do not, they presumably don't have the right to
license the  
work. So is the "performer" just "the
recording copyright holder"?

I cannot find any reference to "a phonogram" in
Berne. Would "a  
recording" not be more generic?

1 g

Why do we go straight from d to g? 

1 h

Does the "by them" mean the performer or the
public? If the  
performer, can they make the performance available under
(eg) DRM or  
payment (for NC...)? If not this limitation should be noted.
If the  
public, the public should not be able to demand a particular
kind of  
performance from the performer. 

1 j

Is the circus performer language designed to capture
"work not  
captured in a fixed form'? If so would this not be a better
 
definition to use, despite the fact that it is optional for
signatory  
countries. I admit that a malicious party is unlikely to
employ an  
army of clowns to try to circumvent CC licensing. 

I'm not sure this section gains more in completeness than
it loses in  
complexity but I don't know what the alternative is. :-(

*Please* simplify this if possible.

1 l

This is an old one but where is the idea of "high
level license  
elements" defined?

2

*Please* explicitly mention Fair Dealing rights as well, ie
"Fair Use  
Rights / Fair Dealing Rights".

3

It might be better just to say "...for the duration of
copyright on  
the work" rather than say perpetual (which may be
legally  
problematic) then mention the term in parentheses.

3 b

This is good. It is DFSG-free and I've come round to this
sort of  
thinking.

3 d

Wouldn't this right be implicit by virtue of sharealike?

4

Restrictions are bad. 
Responsibilities? Requirements?

4 a

Which precise URI? Perhaps "The official URI" or
"The  
creativecommons.org URI".

4 b

"Impose terms", or "impose conditions
whether legally,  
technologically or by other means"? The latter form
covers DRM as  
well and makes the problems with DRM clear.

4 c

Is there such a thing as public monetary compensation?

4 d

Can this lead to copyright notices being removed? I
appreciate that  
copyright notices are not required by law and could break
the right  
of (dis-)attribution. But this still seems wrong as it may
make the  
provenance of licensed work harder to identify.

4 f

An international integrity right to match BY's
international  
attribution right. I'm pragmatic about this. 

7

I agree that the GPL-3's softer, gentler termination clause
style  
might be a good model to consider.

The Notice.

Good to see Debian's concerns have been addressed here, the
original  
version did read strangely for a Free Culture license. 

- Rob.

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Rob Myers skrev:
> Notes by section:
> 
> 1 b
> 
> I assume that the concept of "adaptation"
is a genericisation of  
> "derivative". But Berne uses the term
"derivative", and "adaptation"  
> is listed as a kind of derivative. If this is a grey
area how about  
> something like GPL-3's "a work based on the
program", for example "a  
> new work based on the licensed work" or "a
new work containing some  
> or all of the licensed work".
> 

Frankly, I find "adaptation" an much more
intuitive term than 
"derivative". The term "derivative"
to me implies that the rights to a 
work, that can be traced, even in a very minor way, back to
an other 
authors work, is dependent on the rights to the original
work, and this 
may very well not be the case. In fact, from my POW, the the
usage of 
the term "derivative" implies an unfair
_extension_ of the rights of the 
copyright holder.

Further, for people with little knowledge about copyright
law, the term 
"adaptation" also points in the right direction
(in most cases - the 
U.S. being a notable exception). If they would look the word

"adaptation" up in a dictionary they would get
an explanation which is 
pretty close to the actual legal term used in their national
copyright law.

So, to me, the usage of "adaptation" makes the
license more clear and 
less ambiguous.

/Peter Brink


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On 13 Aug 2006, at 23:09, Peter Brink wrote:

> Rob Myers skrev:
>> Notes by section:
>>
>> 1 b
>>
>> I assume that the concept of
"adaptation" is a genericisation of
>> "derivative". But Berne uses the term
"derivative", and "adaptation"
>> is listed as a kind of derivative. If this is a
grey area how about
>> something like GPL-3's "a work based on the
program", for example "a
>> new work based on the licensed work" or
"a new work containing some
>> or all of the licensed work".
>>
>
> Frankly, I find "adaptation" an much more
intuitive term than
> "derivative". The term
"derivative" to me implies that the rights to a
> work, that can be traced, even in a very minor way,
back to an other
> authors work, is dependent on the rights to the
original work, and  
> this
> may very well not be the case. In fact, from my POW,
the the usage of
> the term "derivative" implies an unfair
_extension_ of the rights  
> of the
> copyright holder.
>
> Further, for people with little knowledge about
copyright law, the  
> term
> "adaptation" also points in the right
direction (in most cases - the
> U.S. being a notable exception). If they would look the
word
> "adaptation" up in a dictionary they would
get an explanation which is
> pretty close to the actual legal term used in their
national  
> copyright law.
>
> So, to me, the usage of "adaptation" makes
the license more clear and
> less ambiguous.

I do remember the first time I got into a debate about what
a  
"derivative" was, and it's not a term that
people seem to get without  
explanation. If "adaptation" is clearer then
that should be used  
instead.

For me personally the problem with "adaptation"
is that it I'm used  
to a use of the word that is more limited than
"derivative". So  
"adaptation" would just mean a television or
film version of a book.  
And in fact the dictionary that I am looking at uses this
definition.  
It does not mean a sample of a piece of music used to make
another  
piece of music, for example.

But this is my opinion rather than any sort of legal
argument. I  
think the important thing for the International license is
that  
"adaptation" is a subset of
"derivation" in Bern. If that is legally  
harmless and using "adaptation" is clearer and
doesn't preclude  
sampling then OK.

- Rob.
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Rob Myers skrev:
> 
> For me personally the problem with
"adaptation" is that it I'm used  
> to a use of the word that is more limited than
"derivative". So  
> "adaptation" would just mean a television
or film version of a book.  
> And in fact the dictionary that I am looking at uses
this definition.  
> It does not mean a sample of a piece of music used to
make another  
> piece of music, for example.
> 

If we take Sweden as an example, we will find that the
Swedish 
translation of "derivative"
("härlett") is a term that does not exist in 
the Swedish copyright law. The term "adaptation"
("bearbetning") is the 
term used in the legislation, in the legal literature, in
case law etc. 
So the term "adaptation", in an international
perspective, tend to point 
people in the right direction - at least as far as their
national
legislation goes.

It is correct that a sample is not, generally speaking, an
adaptation. 
It's either a copy, or (if the sample cannot be considered
an original 
work in itself) it falls outside the scope of copyright law
(here I 
refer to European law). So it might be worth considering to
add a 
specific note that the license treats sampling of music as
if such a 
sample is an adaptation.

/Peter Brink
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On 8/14/06, Peter Brink <peter.brinkbrinkdata.se> wrote:
> Rob Myers skrev:
> >
> > For me personally the problem with
"adaptation" is that it I'm used
> > to a use of the word that is more limited than
"derivative". So
> > "adaptation" would just mean a
television or film version of a book.
> > And in fact the dictionary that I am looking at
uses this definition.
> > It does not mean a sample of a piece of music used
to make another
> > piece of music, for example.
> >
>
> If we take Sweden as an example, we will find that the
Swedish
> translation of "derivative"
("härlett") is a term that does not exist in
> the Swedish copyright law. The term
"adaptation" ("bearbetning") is the
> term used in the legislation, in the legal literature,
in case law etc.
> So the term "adaptation", in an
international perspective, tend to point
> people in the right direction - at least as far as
their national
> legislation goes.

Part of the GPL's reasoning in getting rid of derivative
was actually
to get rid of all the legal baggage around derivative, and
use
something that they could define themselves. If
'adaptation' is a term
of art in European countries, perhaps it is best to avoid
that as
well.

Luis

> It is correct that a sample is not, generally speaking,
an adaptation.
> It's either a copy, or (if the sample cannot be
considered an original
> work in itself) it falls outside the scope of copyright
law (here I
> refer to European law). So it might be worth
considering to add a
> specific note that the license treats sampling of music
as if such a
> sample is an adaptation.
>
> /Peter Brink
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> cc-licenseslists.ibiblio.org
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>
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Quoting Luis Villa <luistieguy.org>:

> On 8/14/06, Peter Brink <peter.brinkbrinkdata.se> wrote:
>> Rob Myers skrev:
>> >
>> > For me personally the problem with
"adaptation" is that it I'm used
>> > to a use of the word that is more limited than
"derivative". So
>> > "adaptation" would just mean a
television or film version of a book.
>> > And in fact the dictionary that I am looking
at uses this definition.
>> > It does not mean a sample of a piece of music
used to make another
>> > piece of music, for example.
>> >
>>
>> If we take Sweden as an example, we will find that
the Swedish
>> translation of "derivative"
("härlett") is a term that does not exist in
>> the Swedish copyright law. The term
"adaptation" ("bearbetning") is the
>> term used in the legislation, in the legal
literature, in case law etc.
>> So the term "adaptation", in an
international perspective, tend to point
>> people in the right direction - at least as far as
their national
>> legislation goes.
>
> Part of the GPL's reasoning in getting rid of
derivative was actually
> to get rid of all the legal baggage around derivative,
and use
> something that they could define themselves. If
'adaptation' is a term
> of art in European countries, perhaps it is best to
avoid that as
> well.

My understanding is that the reasoning behind GPL3 and CC 3
is slightly
different:

* GPL 3 is being made as independent as possible of any
jurisdiction.

* CC 3 International is being written to use the language of
the Berne 
copyright
convention. The license states this explicitly

Berne uses both "derivative" and
"adaptation". The latter is a sub-type of the
former. Given that Swedish law doesn't use the term
"derivative" (and I don't
think UK law does either) I agree that it might be
problematic to use this
word. And as I have previously mentioned I am also not sure
that "adaptation"
is without problems, although it could be clarified by the
license.

So yes, this may be a case where rather than using a word
from Berne 
that may be
problematic a GPL-3-style generic phrase should be used.
Something like "a new
work incorporating or transforming some or all of the
licensed work" or "any
use of the work that would cause a new copyrighted work to
be produced 
(such as
sampling, translation or adaptation)". But this may
look strange if the 
rest of
the license is written in Berne-ese.

- Rob.

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