Re: Moral rights in Creative Commons licenses

Terry Hancock wrote:
> David Maeztu wrote:
>> Youīre right, but thatīs needed because in many
laws there are
>> protection for moral rights, such as in Spain:
<snip>
>> I agree itīs prone to misuse but it`s imperative in
many jurisdictions.
> 
> Why is that imperative to include in the CC license?
> 
> According to what you write above, it will apply within
Spain, whether
> the license mentions it or not (it isn't legal to
remove this right).
> 
> But if the clause is included in the CC license, then
you enforce this
> oddity of European law onto Americans as well. Normally
we (in the US)
> do not recognize the idea of "moral rights"
in a work (which is part of
> our general theory that copyright is not a 'natural'
right, but rather a
> state-granted monopoly on an otherwise free activity --
copying
> information).

I like the USian view, and generally I have been against
including any
reference to moral rights in the licenses. But I have
changed my mind, and
now I think moral rights should be mentioned... in order to
circumvent them.

See the difference between:

a) "you can do anything with my work"
b) "you can do anything with my work, and I further
promise not to exercise
my moral rights to keep you from doing anything from my
work".

Note: I am not a lawyer, so take these as statements of
intentions, as
politically motivated I-wish-it-could-work-this-way
licenses, not as they
indeed do work. Moral rights cannot be transferred or
waived, but I think
they can be pseudo-waived and, from what I hear from my
musician friends,
they rutinely are in traditional contracts.

So my point is that CC licenses should, in my opinion,
engage in this same
kind of pseudo-waiving of moral rights.

Version a) might work in the USA and common-law copyright
countries, but the
spirit of version b) is more powerful, because it makes it
even more
explicit that you can do in Spain whatever you can already
do in the USA
without my mention of moral rights. It means that you can do
in Spain what
the US licensor wanted, and that you won't be sued in Spain
by using in the
US some CC-ed material licensed by a Spanish author under
the Spanish CC.

Something I have already expressed in this list is that the
CC licenses have
the effect of leveling different countries' regulations, and
creating an
international norm of sorts. CC licenses harmonise copyright
norm
"downwards" (towards more permissiveness), even as
the WIPO harmonises
international copyright law "upwards", towards
more strictness.

Mentioning moral rights and pseudo-waiving them where
applicable serves
Creative Commons better.

> It doesn't seem to me that reflecting such
jurisdiction-specific
> non-copyright laws is that helpful.

It does if it lowers the compliance burden on the licensee,
as in my example
b) above. Of course, I agree with you if by
"reflecting" Moral Rights you
would mean "repeating what the law already says and
reserving them for the
author".

Cheers,

Javier
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Hi Javier,

>> According to what you write above, it will apply
within Spain, whether
>> the license mentions it or not (it isn't legal to
remove this right).
>>
>> But if the clause is included in the CC license,
then you enforce this
>> oddity of European law onto Americans as well.
Normally we (in the US)
>> do not recognize the idea of "moral
rights" in a work (which is part of
>> our general theory that copyright is not a
'natural' right, but rather a
>> state-granted monopoly on an otherwise free
activity -- copying
>> information).
>>     
>
> I like the USian view, and generally I have been
against including any
> reference to moral rights in the licenses. But I have
changed my mind, and
> now I think moral rights should be mentioned... in
order to circumvent them.
>   
of course, your idea to pseudo-waiver is nice, as it would
make people 
think about their moral rights and most likely prevent many
of authors 
to use them.
Still, I disagree. It is right, that lawyers take clauses
into general 
terms and conditions of which they know that they are void.

Nevertheless, in my personal opinion, willingly adding void
clauses 
"weakens" a contract in general.
This "weakness" is a big problem of the GPL and I
find it very 
consistent that the CC-licenses are not only translated but
also adapted 
to national laws. This feature makes them much stronger (as
well as seen 
by law as morally!) and thus more enforceable if a licensee
does not 
comply with the terms of the license (e.g. in Germany once
again Skype 
and GPL (just google it) - German courts were very generous
with the 
GPL, especially regarding the language.).

Cheers,
 Karl


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Javier Candeira wrote:

> Mentioning moral rights and pseudo-waiving them where
applicable serves
> Creative Commons better.

I believe that moral rights are un-waivable in some
countries (Germany?) 
so this approach would not work internationally.

- Rob.
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