opencontentlawyer.com

Just 8 months after CC versioned up to 3.0, Creative Commons has announced a new round of public comments for a 3.01. The big change is to clarify the language in the unported version of the licence in regards to moral rights. Moral rights include the right to object to derogatory treatment and the right to be identified as the author of the work. In the United Kingdom, objecting to derogatory treatment is in s.80 of the Copyright, Designs and Patents Act 1988 and the right to be identified is in s. 77. Both rights are in Article 6bis of the Berne Convention, which is the leading international copyright treaty.

Many saw the clause — 4f in the CC-BY-NC-SA version — in the unported licence as trying to enforce moral rights in jurisdictions that don’t have them, which I don’t think was much of a plausible interpretation in light of how international copyright law functions. However for the sake of clarity they’ve re-worded the section.

The new 4(f) looks like this:

Except as otherwise agreed in writing by the Original Author, in those jurisdictions in which the moral right of integrity exists and by operation of local law constrains the freedom to adapt or collect licensed work, and 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. Where the Licensor is the Original Author of the Work, the 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) could violate the moral right of integrity of the Original Author, the Licensor will waive or not assert this Section, to the fullest extent permitted by the applicable national law, as long as You do 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, so as to enable You to reasonably exercise Your right under Section 3(b) of this License, but not otherwise.

This wouldn’t be that much of a problem if people actually used the licences specific to their jurisdiction, rather than the unported licence. The unported licence is not tuned to any jurisdiction but rather to international treaties dealing with copyright and related rights. The problem with this approach is that copyright is based on a system of national treatment and minimum standards. The treaties set a group of minimum standards, but the approach to copyright — or author’s rights as it is also known — can be very different. This of course includes the approach to moral rights, which seems to be causing some confusion. Some jurisdictions (such as the US) take a rather dim view of moral rights, while others (France or Germany) hold them nearly sacred.

I should note here that while Berne has an article on moral rights, it is not a part of the Berne Convention as incorporated into TRIPS. The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement makes up a part of the WTO agreements (and thus subject to WTO enforcement) and incorporates the standards set out in several international IP treaties, including Berne, into its provisions. However it does not provide for the “rights and obligations” under the WTO system for Article 6bis of Berne, the moral rights provision. Berne itself has little to no teeth in terms of enforcement of its provisions, and so if it isn’t in TRIPS, there is likely to be no harmonoisation in this area.

As a final parting thought, I should note that the new draft only mentions moral rights, and does not cover some of the problems unique to databases. In particular, CC still does not address the overlap with Database Rights and copyright in Europe in the unported licence. This is part of the reason that Talis funded Dr. Waelde and myself to create the draft Open Data Commons Database Licence, which is available here. It is still in beta, so please comment or join the discuss list.