Christopher Covington | 11 Apr 12:59 2012
Picon

Subject Matter: Semiconductor Masks and Design Rights

With the expansion of rights licensed expanding to include database
rights, I'd like to propose also adding other sui generis rights,
specifically semiconductor mask rights and design rights. These were
both recently added to a modified version of the Apache license to come
up with the Solderpad Open License [1].

1. http://solderpad.org/licenses/SHL-0.51/

Regards,
Christopher

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Rob Myers | 11 Apr 20:08 2012

Re: Subject Matter: Semiconductor Masks and Design Rights

On 04/11/2012 11:59 AM, Christopher Covington wrote:
> With the expansion of rights licensed expanding to include database
> rights, I'd like to propose also adding other sui generis rights,
> specifically semiconductor mask rights and design rights. These were
> both recently added to a modified version of the Apache license to come
> up with the Solderpad Open License [1].
>
> 1. http://solderpad.org/licenses/SHL-0.51/

GPLv3 also mentions rights other than copyright:

http://www.gnu.org/licenses/gpl-3.0.html

"""
“Copyright” also means copyright-like laws that apply to other kinds of 
works, such as semiconductor masks.
"""

As with database rights, these vary around the world.

- Rob.
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(Continue reading)

Kent Mewhort | 11 Apr 23:08 2012
Picon

Moral rights, Attribution & Choice of Law

IMO, the overall direction of this license looks to be shaping up
nicely.  A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
(Continue reading)

Diane Peters | 13 Apr 22:23 2012

Re: Moral rights, Attribution & Choice of Law

See inline, below.  Thanks for your comments, Kent.

On Wed, Apr 11, 2012 at 2:08 PM, Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org> wrote:
IMO, the overall direction of this license looks to be shaping up
nicely.  

Good to hear!  Keep the constructive feedback coming.
 
A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

Interesting point.  I’d like to know if this is the case where moral rights are thought to be the strongest, such as France.  Again, “reasonably exercise” is where we left at least that part of the discussion in 3.01 (http://creativecommons.org/weblog/entry/7718).  But we did think about it and kept the modifier because it seems/ed reasonable (no pun intended) to include it to reduce risk of unenforceability of the provision in places where unqualified, blanket grants may be frowned upon.  That said, if the element is indeed baked into the notion of moral rights already, removal may be appropriate at least on that ground.  We’d be interested in hearing others thoughts on this. 

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  

Leaving them intact/reserved (and hence exercisable by the licensor in her discretion to prevent certain reuses that licensees expect given other license permissions) leaves us exposed to the criticism that we are overreaching, and licensees exposed unnecessarily and possibly unfairly for exercising the very rights they think they’re able to exercise.  If fully reserved, the very reuse expected by licensors could be impeded given the resulting uncertainty.  It is interesting to note that in several of the jurisdictions with ported 3.0 licenses, the approach of a general waiver has already been adopted (see blog post announcing draft:  http://creativecommons.org/weblog/entry/32157).  So while moral rights in 3.0 unported are reserved, it's already that case in a fair number of ports that the rights are waived where possible.
 
Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

To be clear, the waiver of moral rights (when/if even permitted by law) in 4.0d1 coincides and aligns with the economic rights granted.  No more, no less, except where the rights cannot be waived (or not asserted) at all, in which case less.

 

Some other licenses require blanket waivers, even (possibly) some of our 3.0 ports (see the blog post link, above).  It may be true that a blank waiver is simplest for purposes of the license, but whether a blanket waiver is widely enforceable and whether it is necessary to give the licensee what s/he needs to use the work as permitted is another matter.   In short, we have been hard pressed to find a reason to require waiver of moral rights beyond those necessary to exercise the permissions granted by the license.   But we’re eager to hear if we’re missing something on either of these points, or should be thinking about these in another way.



2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
exercise...".

Thanks for the suggestion, we’ll take a look at that for d2. 

Attribution
------------

3. The scope of "any reasonable manner" seems a bit too broad,
especially given the importance and multi-faceted purpose of
attribution. I liked the old "at least as prominent as" provision,
though I can see how this can cause problems in some contexts.  How
about "any reasonably prominent manner", or even "a reasonable manner
consistent with, to the extent feasible, any customary attribution for
the medium or means You are using".

On this, recognize that the original purpose of the “at least as prominent” in 3.0 is to ensure that all contributors received “equal” billing, though as some have pointed out that's not always fair if some contributions are more significant than others.  As you’re suggesting it be revised, it seems less about equality and more about prominence of attribution generally, which feels different. Is that difference intended?

 

We’ll go ahead and add this specific proposal on the 4.0 attribution page on the wiki, and hope others will weigh in on the advisability of the modification.

 

New definition of to "Share"
-----------------------------

4. If we end up with no ports, this definition may not be sufficient to
equally cover the intended activities in all jurisdictions. For example,
in Canada, we have no "making available" right as of yet and the right
to "communicate to the public" by telecommunication arguably doesn't
cover one-to-one downloads through services such as iTunes (an issue
which is presently before our Supreme Court).  It might be advisable to
insert an "or distribute" in there.

You comment provides a great opportunity to clarify an important dimension of the license.  Section 2, not the definition of Share, contains the grant of rights to licensees, covering actions otherwise reserved to the Licensor, including distribution rights. “Share” on the other hand is the event that triggers the the license conditions.  Said differently, only if the licensee both exercises the rights granted in Section 2 and shares the Licensed Work (or an Adaptation in licenses allowing their creation) does the licensee have to comply with the license conditions in Section 3.   For those familiar with GPLv3, you can think of “Share” as the rough equivalent of “convey” in this regard.

 

With that in mind, since Section 2 expressly grants the right to “distribute” the Licensed Work, is your concern addressed?

 

Choice of Law
--------------

5. There hasn't been much discussion on this, but I think deserves
careful consideration in light of the move towards
internationalization.  Given the different laws on fair dealing,
copyright terms, and other aspects of copyright law, it creates a lot of
uncertainty to simply leave choice of law to local conflict of law
rules.  I think something analogous to the U.K. government license could
work well to tighten up certainty: "This licence is governed by the laws
of the jurisdiction in which the Information Provider has its principal
place of business, unless otherwise specified by the Information Provider. "

We are framing this issue for public discussion shortly.  Look for that prompt shortly.  
 
Alright, that's all for now :)!

Kent
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Kent Mewhort | 17 Apr 21:14 2012
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Re: Moral rights, Attribution & Choice of Law

Thanks for your well thought-out responses, Diane.  My concerns about the new "Share" definition remain, as per my inline comments below:

You comment provides a great opportunity to clarify an important dimension of the license.  Section 2, not the definition of Share, contains the grant of rights to licensees, covering actions otherwise reserved to the Licensor, including distribution rights. “Share” on the other hand is the event that triggers the the license conditions.  Said differently, only if the licensee both exercises the rights granted in Section 2 and shares the Licensed Work (or an Adaptation in licenses allowing their creation) does the licensee have to comply with the license conditions in Section 3.   For those familiar with GPLv3, you can think of “Share” as the rough equivalent of “convey” in this regard.

 

With that in mind, since Section 2 expressly grants the right to “distribute” the Licensed Work, is your concern addressed?

No, this is actually exactly what my concern entails: that the license expressly grants the right to reproduce and distribute a work, but even a broad exercise of these right does not necessarily trigger the obligations under Section 3.  I think the present definition of to "Share" is too narrow.

For example, consider a scenario where I find and download and a collection of songs licensed under CC-BY-SA.  I put together a compilation CD with these tracks, some without any changes and some that I remix.  I burn a few hundred copies and sell them.  I don't think I would have to provide any attribution whatsoever, or share it alike under the same license.

I clearly implicate reproduction and distribution rights when I sell these CDs, but not any of the rights listed under the definition of to "Share".  It's not a communication, as least as far as communication rights are usually defined under copyright law.   It's not making it available "to the public", but rather it's a series of individual, one-to-one commercial transactions.

The same could even apply to an online music download service in the vein of iTunes: no attribution required, no share-alike required.  Such a download music service engages in a series on one-to-one, private transactions; and, arguably, a download rather than a stream does not implicate communication rights either.
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Kent Mewhort | 20 Apr 17:11 2012
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Re: Moral rights, Attribution & Choice of Law

Thanks for your well thought-out responses, Diane. My concerns about the
new "Share" definition remain, as per my inline comments below:
>
> You comment provides a great opportunity to clarify an important
> dimension of the license.Section 2, not the definition of Share,
> contains the grant of rights to licensees, covering actions otherwise
> reserved to the Licensor, including distribution rights. “Share” on
> the other hand is the event that triggers the the license
> conditions.Said differently, only if the licensee both exercises the
> rights granted in Section 2 *and* shares the Licensed Work (or an
> Adaptation in licenses allowing their creation) does the licensee have
> to comply with the license conditions in Section 3.For those familiar
> with GPLv3, you can think of “Share” as the rough equivalent of
> “convey” in this regard.
>
> With that in mind, since Section 2 expressly grants the right to
> “distribute” the Licensed Work, is your concern addressed?
>
No, this is actually exactly what my concern entails: that the license
expressly grants the right to reproduce and distribute a work, but even
a broad exercise of these right does not necessarily trigger the
obligations under Section 3. I think the present definition of to
"Share" is too narrow.

For example, consider a scenario where I find and download and a
collection of songs licensed under CC-BY-SA. I put together a
compilation CD with these tracks, some without any changes and some that
I remix. I burn a few hundred copies and sell them. I don't think I
would have to provide any attribution whatsoever, or share it alike
under the same license.

I clearly implicate reproduction and distribution rights when I sell
these CDs, but not any of the rights listed under the definition of to
"Share". It's not a communication, as least as far as communication
rights are usually defined under copyright law. It's not making it
available "to the public", but rather it's a series of individual,
one-to-one commercial transactions.

The same could even apply to an online music download service in the
vein of iTunes: no attribution required, no share-alike required. Such a
download music service engages in a series on one-to-one, private
transactions; and, arguably, a download rather than a stream does not
implicate communication rights either.
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Diane Peters | 20 Apr 18:28 2012

Re: Moral rights, Attribution & Choice of Law

Thanks for the added detail.  A few general comments, then inline below.  


The overall design of 4.0d1 is intended to align with 3.0.  In 3.0, the licenses provide a general grant of rights otherwise restricted by copyright (Section 3), followed by conditions that attach when a licensee Publicly Performs or Distributes the work (or an adaptation in the non-ND licenses).  Both those definitions in 3.0 turn on whether the activity is vis-a-vis the "public", the qualifier for every activity described other than broadcasting, and the conditions in section 4 (of v3.0) in turn only get triggered when those activities (vis-a-vis the public) take place.

"Share" is intended to replace the need for both definitions in 4.0 and to simplify what are pretty long and sometimes repetitive definitions in 3.0.  But if in doing so the outcome differs with 3.0, then we need to revisit.  As for our simplification effort, a lot of the examples were removed but the essence of exercising rights relative to the "public" was retained.  It may be that we need to add back in more so that activities that ought trigger compliance do not inadvertently slip through.  

Diane

 
On Fri, Apr 20, 2012 at 8:11 AM, Kent Mewhort <kmewhort <at> cippic.ca> wrote:
Thanks for your well thought-out responses, Diane. My concerns about the
new "Share" definition remain, as per my inline comments below:
>
> You comment provides a great opportunity to clarify an important
> dimension of the license.Section 2, not the definition of Share,
> contains the grant of rights to licensees, covering actions otherwise
> reserved to the Licensor, including distribution rights. “Share” on
> the other hand is the event that triggers the the license
> conditions.Said differently, only if the licensee both exercises the
> rights granted in Section 2 *and* shares the Licensed Work (or an
> Adaptation in licenses allowing their creation) does the licensee have
> to comply with the license conditions in Section 3.For those familiar
> with GPLv3, you can think of “Share” as the rough equivalent of
> “convey” in this regard.
>
> With that in mind, since Section 2 expressly grants the right to
> “distribute” the Licensed Work, is your concern addressed?
>
No, this is actually exactly what my concern entails: that the license
expressly grants the right to reproduce and distribute a work, but even
a broad exercise of these right does not necessarily trigger the
obligations under Section 3. I think the present definition of to
"Share" is too narrow.

For example, consider a scenario where I find and download and a
collection of songs licensed under CC-BY-SA. I put together a
compilation CD with these tracks, some without any changes and some that
I remix. I burn a few hundred copies and sell them. I don't think I
would have to provide any attribution whatsoever, or share it alike
under the same license.

I clearly implicate reproduction and distribution rights when I sell
these CDs, but not any of the rights listed under the definition of to
"Share". It's not a communication, as least as far as communication
rights are usually defined under copyright law. It's not making it
available "to the public", 
but rather it's a series of individual,
one-to-one commercial transactions.

Right, I think I see your point.  But then, how is it that the same outcome wouldn't result under 3.0, since each activity described in the definitions of Distribute and Publicly Perform relies on the notion of "public" and doesn't specify one-to-one transactions? (for ease:  http://creativecommons.org/licenses/by/3.0/legalcode).   The difference isn't readily apparent.  But regardless, I take your point to be that the license ought ensure that this type of activity and others similarly-spirited ought trigger the conditions.  We'll take a hard look, and hope others on this list weigh in on this as well.

The same could even apply to an online music download service in the
vein of iTunes: no attribution required, no share-alike required. Such a
download music service engages in a series on one-to-one, private
transactions; and, arguably, a download rather than a stream does not
implicate communication rights either.
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Creative Commons
cell: +1 503-803-8338
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Francesco Poli | 13 Apr 22:22 2012

Re: Moral rights, Attribution & Choice of Law

On Wed, 11 Apr 2012 17:08:39 -0400 Kent Mewhort wrote:

[...]
> Moral rights
> -------------
[...]
> I would suggest leaving moral rights altogether intact.

I instead think that the license should do everything it can in order
to prevent moral rights from obstructing the exercise of the granted
rights.

[...]
> Attribution
> ------------
> 
> 3. The scope of "any reasonable manner" seems a bit too broad,
> especially given the importance and multi-faceted purpose of
> attribution. I liked the old "at least as prominent as" provision,
> though I can see how this can cause problems in some contexts.

Please let's not suggest the reintroduction of one of few issues of
CC-v3.0 that have been fixed in CC-v4.0draft1 !
For more details, please see:
http://lists.ibiblio.org/pipermail/cc-licenses/2012-January/006604.html

[...]
> Choice of Law
> --------------
> 
> 5. There hasn't been much discussion on this, but I think deserves
> careful consideration in light of the move towards
> internationalization.  Given the different laws on fair dealing,
> copyright terms, and other aspects of copyright law, it creates a lot of
> uncertainty to simply leave choice of law to local conflict of law
> rules.  I think something analogous to the U.K. government license could
> work well to tighten up certainty: "This licence is governed by the laws
> of the jurisdiction in which the Information Provider has its principal
> place of business, unless otherwise specified by the Information Provider. "

I instead think that it's better if the local conflict of law rules are
not overridden...

--

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 New GnuPG key, see the transition document!
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pcreso | 13 Apr 22:24 2012

Re: Moral rights, Attribution & Choice of Law

Moral rights are described in a very misleading fashion, and the issues regarding these as providing protection for data released under CC licences need to be far clearer. Frequently there are none.

In the US, Moral Rights only pertain to visual media. In Australia moral rights can only be assigned to individuals, not organisations, in New Zealand computer related works are exempt. CC makes little or no attempt to explain the distinction, & limitations of CC licences for data.

Those who wish to release data under CC licences, something CC is trying to encourage, need to be aware that many countries have different laws covering data & creative works, and that CC licences relying on local Moral Rights legislation provide very different protections.

--- On Thu, 4/12/12, Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org> wrote:

From: Kent Mewhort <kmewhort <at> cippic.ca>
Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
To: "Development of Creative Commons licenses" <cc-licenses <at> lists.ibiblio.org>
Date: Thursday, April 12, 2012, 9:08 AM

IMO, the overall direction of this license looks to be shaping up
nicely.  A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
exercise...".

Attribution
------------

3. The scope of "any reasonable manner" seems a bit too broad,
especially given the importance and multi-faceted purpose of
attribution. I liked the old "at least as prominent as" provision,
though I can see how this can cause problems in some contexts.  How
about "any reasonably prominent manner", or even "a reasonable manner
consistent with, to the extent feasible, any customary attribution for
the medium or means You are using".

New definition of to "Share"
-----------------------------

4. If we end up with no ports, this definition may not be sufficient to
equally cover the intended activities in all jurisdictions. For example,
in Canada, we have no "making available" right as of yet and the right
to "communicate to the public" by telecommunication arguably doesn't
cover one-to-one downloads through services such as iTunes (an issue
which is presently before our Supreme Court).  It might be advisable to
insert an "or distribute" in there.


Choice of Law
--------------

5. There hasn't been much discussion on this, but I think deserves
careful consideration in light of the move towards
internationalization.  Given the different laws on fair dealing,
copyright terms, and other aspects of copyright law, it creates a lot of
uncertainty to simply leave choice of law to local conflict of law
rules.  I think something analogous to the U.K. government license could
work well to tighten up certainty: "This licence is governed by the laws
of the jurisdiction in which the Information Provider has its principal
place of business, unless otherwise specified by the Information Provider. "

Alright, that's all for now :)!

Kent
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Andres Guadamuz | 14 Apr 02:17 2012
Picon

Re: Moral rights, Attribution & Choice of Law

You have mentioned this before. Can you elaborate? Moral rights are handled quite well in my opinion, the current wording covers all of the national practices, this has been the subject of constant discussion since the early licences, and the existing practice seems to fit well in various jurisdictions.

On 13/04/2012 02:24 p.m., pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org wrote:
Moral rights are described in a very misleading fashion, and the issues regarding these as providing protection for data released under CC licences need to be far clearer. Frequently there are none.

In the US, Moral Rights only pertain to visual media. In Australia moral rights can only be assigned to individuals, not organisations, in New Zealand computer related works are exempt. CC makes little or no attempt to explain the distinction, & limitations of CC licences for data.

Those who wish to release data under CC licences, something CC is trying to encourage, need to be aware that many countries have different laws covering data & creative works, and that CC licences relying on local Moral Rights legislation provide very different protections.

--- On Thu, 4/12/12, Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org> wrote:

From: Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org>
Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
To: "Development of Creative Commons licenses" <cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
Date: Thursday, April 12, 2012, 9:08 AM

IMO, the overall direction of this license looks to be shaping up
nicely.  A few comments:

Moral rights
-------------

1. Substantive comment:
It's not clear to me that this provision moves us anywhere different
from the status quo.  It seems to only turn the question of whether
moral rights have been violated into a question of whether an act is a
"reasonable exercise" of the rights under the license.  Isn't this
essentially the role of moral rights in the first place?  Moral rights
set the threshold on whether a particular exercise of a copyright
license or assignment is reasonable in light of the author's personal
interests.

I would suggest leaving moral rights altogether intact. Attribution and
non-association form part of the CC license terms themselves, so are
unlikely to be otherwise violated.  For other moral rights such as
integrity and derogatory action, this is generally a reasonable high bar
and I can't image would pose any significant sharing hurdles (unless the
bar is much lower in some other jurisdictions).  Alternatively, if we do
insist on waiving moral rights, I suggest simply waiving them entirely
to avoid any disputes about what constitutes a "reasonable exercise".

2. Formal comment:
This wording took a couple of doubling-backs to understand what it's
actually saying. To improve clarity, I suggest striking out the two
embedded "however..." clauses and instead leading off with "Only to the
minimum extend possible and necessary to allow You to reasonably
exercise...".

Attribution
------------

3. The scope of "any reasonable manner" seems a bit too broad,
especially given the importance and multi-faceted purpose of
attribution. I liked the old "at least as prominent as" provision,
though I can see how this can cause problems in some contexts.  How
about "any reasonably prominent manner", or even "a reasonable manner
consistent with, to the extent feasible, any customary attribution for
the medium or means You are using".

New definition of to "Share"
-----------------------------

4. If we end up with no ports, this definition may not be sufficient to
equally cover the intended activities in all jurisdictions. For example,
in Canada, we have no "making available" right as of yet and the right
to "communicate to the public" by telecommunication arguably doesn't
cover one-to-one downloads through services such as iTunes (an issue
which is presently before our Supreme Court).  It might be advisable to
insert an "or distribute" in there.


Choice of Law
--------------

5. There hasn't been much discussion on this, but I think deserves
careful consideration in light of the move towards
internationalization.  Given the different laws on fair dealing,
copyright terms, and other aspects of copyright law, it creates a lot of
uncertainty to simply leave choice of law to local conflict of law
rules.  I think something analogous to the U.K. government license could
work well to tighten up certainty: "This licence is governed by the laws
of the jurisdiction in which the Information Provider has its principal
place of business, unless otherwise specified by the Information Provider. "

Alright, that's all for now :)!

Kent
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pcreso | 14 Apr 06:17 2012

Re: Moral rights, Attribution & Choice of Law

Hi Andres,

Some detail (hopefully not too much)...

Moral rights under CC apply well (generally) for creative works. I don't have any issues in that regard.

However, CC is pushing the same licences for data, without indicating the difference between legislated moral rights for data & for creative works. I do not regard this as a responsible approach, especially with CC4 being openly touted as being more appropriate for data, and the CC4 licence wording not addressing this issue to date.

As an aside: a data mashup can be based on some underlying data without presenting any of that data in the final product. This is also a situation very different from creative works. Data was used but is no longer there as explicit content. How does CC apply? Attribution is relatively straightforward, but what about inappropriate or misleading use?

In New Zealand the law is explained in this guide from the Copyright Council:
http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105

The relevant section:
"Who has moral rights? Moral rights belong to authors of:
- literary works, including novels, screen plays, poems and song lyrics;
- dramatic works, including dance, mime and film scenarios or scripts;
- musical works;
- artistic works, including paintings, drawings, diagrams, maps, engravings,
etchings, photographs, sculptures and architectural works.

Moral rights are also enjoyed by directors of films made on or after 1 January 1995
(even though copyright is usually owned by film producers).

Creators of sound recordings and computer-related works have no moral rights under
the Copyright Act."

Data is regarded as computer-related works, and those who release datasets under CC enjoy no moral rights to protect against misuse or misrepresentation of them or their data. Very different for those releasing creative works. Where does CC warn of this possibility when suggesting their licence be used for data?

In Australia, moral rights afford the usual protection, from
http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:
 
"Creators have the right:
- to be attributed (or credited) for their work;
- not to have their work falsely attributed; and
- not to have their work treated in a derogatory way.
...
This could include:
- distorting, mutilating or materially altering the work in a way that prejudices the creatorʼs honour or reputation; and
- in the case of artistic works, destroying the work or exhibiting it in public in a way that
prejudices the creatorʼs honour or reputation.
...
Moral rights apply to:
- literary material such as novels, screenplays, poems, song lyrics and journal articles;
- artistic works such as paintings, drawings, architecture, sculpture, craft work, photographs, maps and plans;
- musical works;
- dramatic works such as ballets, plays, screenplays and mime;
- computer programs; and
- cinematograph films such as feature films, documentaries, music videos, television programs and television commercials."

But NOT data. Also, in Australia, moral rights are considered "personal" and "individual" rights, and cannot be vested in institutions. Most data is released by institutions, not individuals. Again, where does CC responsibly explain this to potential users?

The UK Open Government Licence is often described as a CC compliant licence. Largely it is, but it includes some additions that cover these issues pertaining to data. They were deemed necessary, otherwise an actual CC licence could probably have been used. They affirm the moral rights of the data licensor, and place responsibilities upon the user. From: http://www.nationalarchives.gov.uk/doc/open-government-licence/

Data users must:

"...
  • ensure that you do not use the Information in a way that suggests any official status or that the Information Provider endorses you or your use of the Information;
  • ensure that you do not mislead others or misrepresent the Information or its source;
  • ensure that your use of the Information does not breach the Data Protection Act 1998 or the Privacy and Electronic Communications (EC Directive) Regulations 2003."

  • The second requirement in particular effectively applies a moral rights clause to data released under this licence, which is missing in legislation. By suggesting users of CC licences that whatever they release under CC is afforded local moral rights protection I believe CC is misleading them. Until this is addressed, CC licences are not as applicable or suitable for data as they are for creative works.

    There is a difference in law between creative works & data, and licences for data should be clear about this.

    Cheers,

      Brent Wood
     

    --- On Sat, 4/14/12, Andres Guadamuz <anduril13 <at> gmail.com> wrote:

    From: Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>
    Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    To: cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org
    Date: Saturday, April 14, 2012, 12:17 PM

    You have mentioned this before. Can you elaborate? Moral rights are handled quite well in my opinion, the current wording covers all of the national practices, this has been the subject of constant discussion since the early licences, and the existing practice seems to fit well in various jurisdictions.

    On 13/04/2012 02:24 p.m., pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org wrote:
    Moral rights are described in a very misleading fashion, and the issues regarding these as providing protection for data released under CC licences need to be far clearer. Frequently there are none.

    In the US, Moral Rights only pertain to visual media. In Australia moral rights can only be assigned to individuals, not organisations, in New Zealand computer related works are exempt. CC makes little or no attempt to explain the distinction, & limitations of CC licences for data.

    Those who wish to release data under CC licences, something CC is trying to encourage, need to be aware that many countries have different laws covering data & creative works, and that CC licences relying on local Moral Rights legislation provide very different protections.

    --- On Thu, 4/12/12, Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org> wrote:

    From: Kent Mewhort <kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org>
    Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
    To: "Development of Creative Commons licenses" <cc-licenses-rm8PX32fqvY3hiWGjv5W2Q@public.gmane.orgo.org>
    Date: Thursday, April 12, 2012, 9:08 AM

    IMO, the overall direction of this license looks to be shaping up
    nicely.  A few comments:

    Moral rights
    -------------

    1. Substantive comment:
    It's not clear to me that this provision moves us anywhere different
    from the status quo.  It seems to only turn the question of whether
    moral rights have been violated into a question of whether an act is a
    "reasonable exercise" of the rights under the license.  Isn't this
    essentially the role of moral rights in the first place?  Moral rights
    set the threshold on whether a particular exercise of a copyright
    license or assignment is reasonable in light of the author's personal
    interests.

    I would suggest leaving moral rights altogether intact. Attribution and
    non-association form part of the CC license terms themselves, so are
    unlikely to be otherwise violated.  For other moral rights such as
    integrity and derogatory action, this is generally a reasonable high bar
    and I can't image would pose any significant sharing hurdles (unless the
    bar is much lower in some other jurisdictions).  Alternatively, if we do
    insist on waiving moral rights, I suggest simply waiving them entirely
    to avoid any disputes about what constitutes a "reasonable exercise".

    2. Formal comment:
    This wording took a couple of doubling-backs to understand what it's
    actually saying. To improve clarity, I suggest striking out the two
    embedded "however..." clauses and instead leading off with "Only to the
    minimum extend possible and necessary to allow You to reasonably
    exercise...".

    Attribution
    ------------

    3. The scope of "any reasonable manner" seems a bit too broad,
    especially given the importance and multi-faceted purpose of
    attribution. I liked the old "at least as prominent as" provision,
    though I can see how this can cause problems in some contexts.  How
    about "any reasonably prominent manner", or even "a reasonable manner
    consistent with, to the extent feasible, any customary attribution for
    the medium or means You are using".

    New definition of to "Share"
    -----------------------------

    4. If we end up with no ports, this definition may not be sufficient to
    equally cover the intended activities in all jurisdictions. For example,
    in Canada, we have no "making available" right as of yet and the right
    to "communicate to the public" by telecommunication arguably doesn't
    cover one-to-one downloads through services such as iTunes (an issue
    which is presently before our Supreme Court).  It might be advisable to
    insert an "or distribute" in there.


    Choice of Law
    --------------

    5. There hasn't been much discussion on this, but I think deserves
    careful consideration in light of the move towards
    internationalization.  Given the different laws on fair dealing,
    copyright terms, and other aspects of copyright law, it creates a lot of
    uncertainty to simply leave choice of law to local conflict of law
    rules.  I think something analogous to the U.K. government license could
    work well to tighten up certainty: "This licence is governed by the laws
    of the jurisdiction in which the Information Provider has its principal
    place of business, unless otherwise specified by the Information Provider. "

    Alright, that's all for now :)!

    Kent
    _______________________________________________
    List info and archives at http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses

    In consideration of people subscribed to this list to participate
    in the CC licenses http://wiki.creativecommons.org/4.0 development
    process, please direct unrelated discussions to the cc-community list
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    _______________________________________________ List info and archives at http://lists.ibiblio.org/mailman/listinfo/cc-licenses Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses In consideration of people subscribed to this list to participate in the CC licenses http://wiki.creativecommons.org/4.0 development process, please direct unrelated discussions to the cc-community list http://lists.ibiblio.org/mailman/listinfo/cc-community

    -----Inline Attachment Follows-----

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    In consideration of people subscribed to this list to participate 
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    Andres Guadamuz | 14 Apr 14:25 2012
    Picon

    Re: Moral rights, Attribution & Choice of Law

    Hi,
    
    pcreso <at> pcreso.com wrote:
    
     > However, CC is pushing the same licences for data, without indicating
     > the difference between legislated moral rights for data & for creative
     > works. I do not regard this as a responsible approach, especially with
     > CC4 being openly touted as being more appropriate for data, and the CC4
     > licence wording not addressing this issue to date.
    
    I agree that moral rights are treated differently in various 
    jurisdictions, including different treatment with how the law deals with 
    data and software. However, I do not think that it's CC's responsibility 
    to inform of this fact to its users, or to confuse authors with lengthy 
    explanations of how the law deals with data specifically in NZ, 
    Australia, the UK, or civil law systems.
    
    The licence has to do only one thing with regards to moral rights. To 
    the extent that it is allowed by law (and in many jurisdiction it is 
    clearly NOT possible), the owner promises to waive and/or not assert 
    their moral rights. That is done by the current draft in the best way 
    possible. The wording could be slightly clearer to that extent, but it 
    does what it says on the tin.
    
    I am still unsure as to why you think that this should be treated 
    differently even after reading your email twice. The objective is to 
    make the licence as clear as possible, and any explanation about 
    different ways in which jurisdiction deals with moral rights does not 
    help to reach that objective.
    
    Best Regards,
    
    Andres
    
    On 13/04/2012 22:17, pcreso <at> pcreso.com wrote:
    > Hi Andres,
    >
    > Some detail (hopefully not too much)...
    >
    > Moral rights under CC apply well (generally) for creative works. I don't
    > have any issues in that regard.
    >
    > However, CC is pushing the same licences for data, without indicating
    > the difference between legislated moral rights for data & for creative
    > works. I do not regard this as a responsible approach, especially with
    > CC4 being openly touted as being more appropriate for data, and the CC4
    > licence wording not addressing this issue to date.
    >
    > As an aside: a data mashup can be based on some underlying data without
    > presenting any of that data in the final product. This is also a
    > situation very different from creative works. Data was used but is no
    > longer there as explicit content. How does CC apply? Attribution is
    > relatively straightforward, but what about inappropriate or misleading use?
    >
    > In New Zealand the law is explained in this guide from the Copyright
    > Council:
    > http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105
    > <http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105>
    >
    > The relevant section:
    > "Who has moral rights? Moral rights belong to authors of:
    > - literary works, including novels, screen plays, poems and song lyrics;
    > - dramatic works, including dance, mime and film scenarios or scripts;
    > - musical works;
    > - artistic works, including paintings, drawings, diagrams, maps, engravings,
    > etchings, photographs, sculptures and architectural works.
    >
    > Moral rights are also enjoyed by directors of films made on or after 1
    > January 1995
    > (even though copyright is usually owned by film producers).
    >
    > Creators of sound recordings and computer-related works have no moral
    > rights under
    > the Copyright Act."
    >
    > Data is regarded as computer-related works, and those who release
    > datasets under CC enjoy no moral rights to protect against misuse or
    > misrepresentation of them or their data. Very different for those
    > releasing creative works. Where does CC warn of this possibility when
    > suggesting their licence be used for data?
    >
    > In Australia, moral rights afford the usual protection, from
    > http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:
    >
    > "Creators have the right:
    > - to be attributed (or credited) for their work;
    > - not to have their work falsely attributed; and
    > - not to have their work treated in a derogatory way.
    > ...
    > This could include:
    > - distorting, mutilating or materially altering the work in a way that
    > prejudices the creatorʼs honour or reputation; and
    > - in the case of artistic works, destroying the work or exhibiting it in
    > public in a way that
    > prejudices the creatorʼs honour or reputation.
    > ...
    > Moral rights apply to:
    > - literary material such as novels, screenplays, poems, song lyrics and
    > journal articles;
    > - artistic works such as paintings, drawings, architecture, sculpture,
    > craft work, photographs, maps and plans;
    > - musical works;
    > - dramatic works such as ballets, plays, screenplays and mime;
    > - computer programs; and
    > - cinematograph films such as feature films, documentaries, music
    > videos, television programs and television commercials."
    >
    > But NOT data. Also, in Australia, moral rights are considered "personal"
    > and "individual" rights, and cannot be vested in institutions. Most data
    > is released by institutions, not individuals. Again, where does CC
    > responsibly explain this to potential users?
    >
    > The UK Open Government Licence is often described as a CC compliant
    > licence. Largely it is, but it includes some additions that cover these
    > issues pertaining to data. They were deemed necessary, otherwise an
    > actual CC licence could probably have been used. They affirm the moral
    > rights of the data licensor, and place responsibilities upon the user.
    > From: http://www.nationalarchives.gov.uk/doc/open-government-licence/
    >
    > Data users must:
    >
    > # "...ensure that you do not use the Information in a way that suggests
    > any official status or that the Information Provider endorses you or
    > your use of the Information;
    > # ensure that you do not mislead others or misrepresent the Information or
    > its source;
    > # ensure that your use of the Information does not breach the Data
    > Protection Act 1998 or the Privacy and Electronic Communications (EC
    > Directive) Regulations 2003."
    >
    > The second requirement in particular effectively applies a moral rights
    > clause to data released under this licence, which is missing in
    > legislation. By suggesting users of CC licences that whatever they
    > release under CC is afforded local moral rights protection I believe CC
    > is misleading them. Until this is addressed, CC licences are not as
    > applicable or suitable for data as they are for creative works.
    >
    > There is a difference in law between creative works & data, and licences
    > for data should be clear about this.
    >
    > Cheers,
    >
    > Brent Wood
    >
    >
    > --- On *Sat, 4/14/12, Andres Guadamuz /<anduril13 <at> gmail.com>/* wrote:
    >
    >
    >     From: Andres Guadamuz <anduril13 <at> gmail.com>
    >     Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    >     To: cc-licenses <at> lists.ibiblio.org
    >     Date: Saturday, April 14, 2012, 12:17 PM
    >
    >     You have mentioned this before. Can you elaborate? Moral rights are
    >     handled quite well in my opinion, the current wording covers all of
    >     the national practices, this has been the subject of constant
    >     discussion since the early licences, and the existing practice seems
    >     to fit well in various jurisdictions.
    >
    >     On 13/04/2012 02:24 p.m., pcreso <at> pcreso.com
    >     </mc/compose?to=pcreso <at> pcreso.com> wrote:
    >>     Moral rights are described in a very misleading fashion, and the
    >>     issues regarding these as providing protection for data released
    >>     under CC licences need to be far clearer. Frequently there are none.
    >>
    >>     In the US, Moral Rights only pertain to visual media. In Australia
    >>     moral rights can only be assigned to individuals, not
    >>     organisations, in New Zealand computer related works are exempt.
    >>     CC makes little or no attempt to explain the distinction, &
    >>     limitations of CC licences for data.
    >>
    >>     Those who wish to release data under CC licences, something CC is
    >>     trying to encourage, need to be aware that many countries have
    >>     different laws covering data & creative works, and that CC
    >>     licences relying on local Moral Rights legislation provide very
    >>     different protections.
    >>
    >>     --- On *Thu, 4/12/12, Kent Mewhort /<kmewhort <at> cippic.ca>
    >>     </mc/compose?to=kmewhort <at> cippic.ca>/* wrote:
    >>
    >>
    >>         From: Kent Mewhort <kmewhort <at> cippic.ca>
    >>         </mc/compose?to=kmewhort <at> cippic.ca>
    >>         Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
    >>         To: "Development of Creative Commons licenses"
    >>         <cc-licenses <at> lists.ibiblio.org>
    >>         </mc/compose?to=cc-licenses <at> lists.ibiblio.org>
    >>         Date: Thursday, April 12, 2012, 9:08 AM
    >>
    >>         IMO, the overall direction of this license looks to be shaping up
    >>         nicely. A few comments:
    >>
    >>         Moral rights
    >>         -------------
    >>
    >>         1. Substantive comment:
    >>         It's not clear to me that this provision moves us anywhere
    >>         different
    >>         from the status quo. It seems to only turn the question of whether
    >>         moral rights have been violated into a question of whether an
    >>         act is a
    >>         "reasonable exercise" of the rights under the license. Isn't this
    >>         essentially the role of moral rights in the first place? Moral
    >>         rights
    >>         set the threshold on whether a particular exercise of a copyright
    >>         license or assignment is reasonable in light of the author's
    >>         personal
    >>         interests.
    >>
    >>         I would suggest leaving moral rights altogether intact.
    >>         Attribution and
    >>         non-association form part of the CC license terms themselves,
    >>         so are
    >>         unlikely to be otherwise violated. For other moral rights such as
    >>         integrity and derogatory action, this is generally a
    >>         reasonable high bar
    >>         and I can't image would pose any significant sharing hurdles
    >>         (unless the
    >>         bar is much lower in some other jurisdictions). Alternatively,
    >>         if we do
    >>         insist on waiving moral rights, I suggest simply waiving them
    >>         entirely
    >>         to avoid any disputes about what constitutes a "reasonable
    >>         exercise".
    >>
    >>         2. Formal comment:
    >>         This wording took a couple of doubling-backs to understand
    >>         what it's
    >>         actually saying. To improve clarity, I suggest striking out
    >>         the two
    >>         embedded "however..." clauses and instead leading off with
    >>         "Only to the
    >>         minimum extend possible and necessary to allow You to reasonably
    >>         exercise...".
    >>
    >>         Attribution
    >>         ------------
    >>
    >>         3. The scope of "any reasonable manner" seems a bit too broad,
    >>         especially given the importance and multi-faceted purpose of
    >>         attribution. I liked the old "at least as prominent as" provision,
    >>         though I can see how this can cause problems in some contexts. How
    >>         about "any reasonably prominent manner", or even "a reasonable
    >>         manner
    >>         consistent with, to the extent feasible, any customary
    >>         attribution for
    >>         the medium or means You are using".
    >>
    >>         New definition of to "Share"
    >>         -----------------------------
    >>
    >>         4. If we end up with no ports, this definition may not be
    >>         sufficient to
    >>         equally cover the intended activities in all jurisdictions.
    >>         For example,
    >>         in Canada, we have no "making available" right as of yet and
    >>         the right
    >>         to "communicate to the public" by telecommunication arguably
    >>         doesn't
    >>         cover one-to-one downloads through services such as iTunes (an
    >>         issue
    >>         which is presently before our Supreme Court). It might be
    >>         advisable to
    >>         insert an "or distribute" in there.
    >>
    >>
    >>         Choice of Law
    >>         --------------
    >>
    >>         5. There hasn't been much discussion on this, but I think deserves
    >>         careful consideration in light of the move towards
    >>         internationalization. Given the different laws on fair dealing,
    >>         copyright terms, and other aspects of copyright law, it
    >>         creates a lot of
    >>         uncertainty to simply leave choice of law to local conflict of law
    >>         rules. I think something analogous to the U.K. government
    >>         license could
    >>         work well to tighten up certainty: "This licence is governed
    >>         by the laws
    >>         of the jurisdiction in which the Information Provider has its
    >>         principal
    >>         place of business, unless otherwise specified by the
    >>         Information Provider. "
    >>
    >>         Alright, that's all for now :)!
    >>
    >>         Kent
    >>         _______________________________________________
    >>         List info and archives at
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >>         Unsubscribe at
    >>         http://lists.ibiblio.org/mailman/options/cc-licenses
    >>
    >>         In consideration of people subscribed to this list to participate
    >>         in the CC licenses http://wiki.creativecommons.org/4.0 development
    >>         process, please direct unrelated discussions to the
    >>         cc-community list
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-community
    >>
    >>
    >>
    >>     _______________________________________________
    >>     List info and archives athttp://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >>     Unsubscribe athttp://lists.ibiblio.org/mailman/options/cc-licenses
    >>
    >>     In consideration of people subscribed to this list to participate
    >>     in the CC licenseshttp://wiki.creativecommons.org/4.0  development
    >>     process, please direct unrelated discussions to the cc-community list
    >>     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
    >     -----Inline Attachment Follows-----
    >
    >     _______________________________________________
    >     List info and archives at
    >     http://lists.ibiblio.org/mailman/listinfo/cc-licenses
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    >     In consideration of people subscribed to this list to participate
    >     in the CC licenses http://wiki.creativecommons.org/4.0 development
    >     process, please direct unrelated discussions to the cc-community list
    >     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
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    pcreso | 14 Apr 22:58 2012

    Re: Moral rights, Attribution & Choice of Law

    We'll have to agree to differ.

    However, if CC desires their licences to be as applicable for data as they are for creative works, particularly for those responsible organisations around the world who currently feel the CC licences are inadequate for their data, (for moral rights issues & other reasons) then it is up to CC to provide a suitable licence. The organisation I work for has its own, as do many other agencies & in the UK example, the UK Govt itself. While these licences may be consistent with many of the principles enshrined in CC licences, they only exists because of perceived inadequacies in the CC licences.

    I'd like to encourage CC to ensure their licences do meet our needs, so we are comfortable using them. By not recognising our concerns, and providing a licence we are comfortable using, we will continue to use alternative licences.

    This is not a major issue for us, but more one for CC if they genuinely desire to make their licences more widely applicable, particularly in the Data Commons, as they claim to be doing.

    Cheers,

       Brent

    --- On Sun, 4/15/12, Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org> wrote:

    From: Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>
    Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    To: pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org
    Cc: "Development of Creative Commons licenses" <cc-licenses-rm8PX32fqvaqME3OuFf9Mw@public.gmane.orgio.org>
    Date: Sunday, April 15, 2012, 12:25 AM

    Hi,

    pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org wrote:

    > However, CC is pushing the same licences for data, without indicating
    > the difference between legislated moral rights for data & for creative
    > works. I do not regard this as a responsible approach, especially with
    > CC4 being openly touted as being more appropriate for data, and the CC4
    > licence wording not addressing this issue to date.

    I agree that moral rights are treated differently in various
    jurisdictions, including different treatment with how the law deals with
    data and software. However, I do not think that it's CC's responsibility
    to inform of this fact to its users, or to confuse authors with lengthy
    explanations of how the law deals with data specifically in NZ,
    Australia, the UK, or civil law systems.

    The licence has to do only one thing with regards to moral rights. To
    the extent that it is allowed by law (and in many jurisdiction it is
    clearly NOT possible), the owner promises to waive and/or not assert
    their moral rights. That is done by the current draft in the best way
    possible. The wording could be slightly clearer to that extent, but it
    does what it says on the tin.

    I am still unsure as to why you think that this should be treated
    differently even after reading your email twice. The objective is to
    make the licence as clear as possible, and any explanation about
    different ways in which jurisdiction deals with moral rights does not
    help to reach that objective.

    Best Regards,

    Andres


    On 13/04/2012 22:17, pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org wrote:
    > Hi Andres,
    >
    > Some detail (hopefully not too much)...
    >
    > Moral rights under CC apply well (generally) for creative works. I don't
    > have any issues in that regard.
    >
    > However, CC is pushing the same licences for data, without indicating
    > the difference between legislated moral rights for data & for creative
    > works. I do not regard this as a responsible approach, especially with
    > CC4 being openly touted as being more appropriate for data, and the CC4
    > licence wording not addressing this issue to date.
    >
    > As an aside: a data mashup can be based on some underlying data without
    > presenting any of that data in the final product. This is also a
    > situation very different from creative works. Data was used but is no
    > longer there as explicit content. How does CC apply? Attribution is
    > relatively straightforward, but what about inappropriate or misleading use?
    >
    > In New Zealand the law is explained in this guide from the Copyright
    > Council:
    > http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105
    > <http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105>
    >
    > The relevant section:
    > "Who has moral rights? Moral rights belong to authors of:
    > - literary works, including novels, screen plays, poems and song lyrics;
    > - dramatic works, including dance, mime and film scenarios or scripts;
    > - musical works;
    > - artistic works, including paintings, drawings, diagrams, maps, engravings,
    > etchings, photographs, sculptures and architectural works.
    >
    > Moral rights are also enjoyed by directors of films made on or after 1
    > January 1995
    > (even though copyright is usually owned by film producers).
    >
    > Creators of sound recordings and computer-related works have no moral
    > rights under
    > the Copyright Act."
    >
    > Data is regarded as computer-related works, and those who release
    > datasets under CC enjoy no moral rights to protect against misuse or
    > misrepresentation of them or their data. Very different for those
    > releasing creative works. Where does CC warn of this possibility when
    > suggesting their licence be used for data?
    >
    > In Australia, moral rights afford the usual protection, from
    > http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:
    >
    > "Creators have the right:
    > - to be attributed (or credited) for their work;
    > - not to have their work falsely attributed; and
    > - not to have their work treated in a derogatory way.
    > ...
    > This could include:
    > - distorting, mutilating or materially altering the work in a way that
    > prejudices the creatorʼs honour or reputation; and
    > - in the case of artistic works, destroying the work or exhibiting it in
    > public in a way that
    > prejudices the creatorʼs honour or reputation.
    > ...
    > Moral rights apply to:
    > - literary material such as novels, screenplays, poems, song lyrics and
    > journal articles;
    > - artistic works such as paintings, drawings, architecture, sculpture,
    > craft work, photographs, maps and plans;
    > - musical works;
    > - dramatic works such as ballets, plays, screenplays and mime;
    > - computer programs; and
    > - cinematograph films such as feature films, documentaries, music
    > videos, television programs and television commercials."
    >
    > But NOT data. Also, in Australia, moral rights are considered "personal"
    > and "individual" rights, and cannot be vested in institutions. Most data
    > is released by institutions, not individuals. Again, where does CC
    > responsibly explain this to potential users?
    >
    > The UK Open Government Licence is often described as a CC compliant
    > licence. Largely it is, but it includes some additions that cover these
    > issues pertaining to data. They were deemed necessary, otherwise an
    > actual CC licence could probably have been used. They affirm the moral
    > rights of the data licensor, and place responsibilities upon the user.
    > From: http://www.nationalarchives.gov.uk/doc/open-government-licence/
    >
    > Data users must:
    >
    > # "...ensure that you do not use the Information in a way that suggests
    > any official status or that the Information Provider endorses you or
    > your use of the Information;
    > # ensure that you do not mislead others or misrepresent the Information or
    > its source;
    > # ensure that your use of the Information does not breach the Data
    > Protection Act 1998 or the Privacy and Electronic Communications (EC
    > Directive) Regulations 2003."
    >
    > The second requirement in particular effectively applies a moral rights
    > clause to data released under this licence, which is missing in
    > legislation. By suggesting users of CC licences that whatever they
    > release under CC is afforded local moral rights protection I believe CC
    > is misleading them. Until this is addressed, CC licences are not as
    > applicable or suitable for data as they are for creative works.
    >
    > There is a difference in law between creative works & data, and licences
    > for data should be clear about this.
    >
    > Cheers,
    >
    > Brent Wood
    >
    >
    > --- On *Sat, 4/14/12, Andres Guadamuz /<anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>/* wrote:
    >
    >
    >     From: Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>
    >     Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    >     To: cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org
    >     Date: Saturday, April 14, 2012, 12:17 PM
    >
    >     You have mentioned this before. Can you elaborate? Moral rights are
    >     handled quite well in my opinion, the current wording covers all of
    >     the national practices, this has been the subject of constant
    >     discussion since the early licences, and the existing practice seems
    >     to fit well in various jurisdictions.
    >
    >     On 13/04/2012 02:24 p.m., pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org
    >     </mc/compose?to=pcreso-+3f9519Zn4Zhl2p70BpVqQ@public.gmane.orgm> wrote:
    >>     Moral rights are described in a very misleading fashion, and the
    >>     issues regarding these as providing protection for data released
    >>     under CC licences need to be far clearer. Frequently there are none.
    >>
    >>     In the US, Moral Rights only pertain to visual media. In Australia
    >>     moral rights can only be assigned to individuals, not
    >>     organisations, in New Zealand computer related works are exempt.
    >>     CC makes little or no attempt to explain the distinction, &
    >>     limitations of CC licences for data.
    >>
    >>     Those who wish to release data under CC licences, something CC is
    >>     trying to encourage, need to be aware that many countries have
    >>     different laws covering data & creative works, and that CC
    >>     licences relying on local Moral Rights legislation provide very
    >>     different protections.
    >>
    >>     --- On *Thu, 4/12/12, Kent Mewhort /<kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org>
    >>     </mc/compose?to=kmewhort <at> cippic.ca>/* wrote:
    >>
    >>
    >>         From: Kent Mewhort <kmewhort <at> cippic.ca>
    >>         </mc/compose?to=kmewhort-ixUP9auzaqr3fQ9qLvQP4Q@public.gmane.org>
    >>         Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
    >>         To: "Development of Creative Commons licenses"
    >>         <cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
    >>         </mc/compose?to=cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
    >>         Date: Thursday, April 12, 2012, 9:08 AM
    >>
    >>         IMO, the overall direction of this license looks to be shaping up
    >>         nicely. A few comments:
    >>
    >>         Moral rights
    >>         -------------
    >>
    >>         1. Substantive comment:
    >>         It's not clear to me that this provision moves us anywhere
    >>         different
    >>         from the status quo. It seems to only turn the question of whether
    >>         moral rights have been violated into a question of whether an
    >>         act is a
    >>         "reasonable exercise" of the rights under the license. Isn't this
    >>         essentially the role of moral rights in the first place? Moral
    >>         rights
    >>         set the threshold on whether a particular exercise of a copyright
    >>         license or assignment is reasonable in light of the author's
    >>         personal
    >>         interests.
    >>
    >>         I would suggest leaving moral rights altogether intact.
    >>         Attribution and
    >>         non-association form part of the CC license terms themselves,
    >>         so are
    >>         unlikely to be otherwise violated. For other moral rights such as
    >>         integrity and derogatory action, this is generally a
    >>         reasonable high bar
    >>         and I can't image would pose any significant sharing hurdles
    >>         (unless the
    >>         bar is much lower in some other jurisdictions). Alternatively,
    >>         if we do
    >>         insist on waiving moral rights, I suggest simply waiving them
    >>         entirely
    >>         to avoid any disputes about what constitutes a "reasonable
    >>         exercise".
    >>
    >>         2. Formal comment:
    >>         This wording took a couple of doubling-backs to understand
    >>         what it's
    >>         actually saying. To improve clarity, I suggest striking out
    >>         the two
    >>         embedded "however..." clauses and instead leading off with
    >>         "Only to the
    >>         minimum extend possible and necessary to allow You to reasonably
    >>         exercise...".
    >>
    >>         Attribution
    >>         ------------
    >>
    >>         3. The scope of "any reasonable manner" seems a bit too broad,
    >>         especially given the importance and multi-faceted purpose of
    >>         attribution. I liked the old "at least as prominent as" provision,
    >>         though I can see how this can cause problems in some contexts. How
    >>         about "any reasonably prominent manner", or even "a reasonable
    >>         manner
    >>         consistent with, to the extent feasible, any customary
    >>         attribution for
    >>         the medium or means You are using".
    >>
    >>         New definition of to "Share"
    >>         -----------------------------
    >>
    >>         4. If we end up with no ports, this definition may not be
    >>         sufficient to
    >>         equally cover the intended activities in all jurisdictions.
    >>         For example,
    >>         in Canada, we have no "making available" right as of yet and
    >>         the right
    >>         to "communicate to the public" by telecommunication arguably
    >>         doesn't
    >>         cover one-to-one downloads through services such as iTunes (an
    >>         issue
    >>         which is presently before our Supreme Court). It might be
    >>         advisable to
    >>         insert an "or distribute" in there.
    >>
    >>
    >>         Choice of Law
    >>         --------------
    >>
    >>         5. There hasn't been much discussion on this, but I think deserves
    >>         careful consideration in light of the move towards
    >>         internationalization. Given the different laws on fair dealing,
    >>         copyright terms, and other aspects of copyright law, it
    >>         creates a lot of
    >>         uncertainty to simply leave choice of law to local conflict of law
    >>         rules. I think something analogous to the U.K. government
    >>         license could
    >>         work well to tighten up certainty: "This licence is governed
    >>         by the laws
    >>         of the jurisdiction in which the Information Provider has its
    >>         principal
    >>         place of business, unless otherwise specified by the
    >>         Information Provider. "
    >>
    >>         Alright, that's all for now :)!
    >>
    >>         Kent
    >>         _______________________________________________
    >>         List info and archives at
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >>         Unsubscribe at
    >>         http://lists.ibiblio.org/mailman/options/cc-licenses
    >>
    >>         In consideration of people subscribed to this list to participate
    >>         in the CC licenses http://wiki.creativecommons.org/4.0 development
    >>         process, please direct unrelated discussions to the
    >>         cc-community list
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-community
    >>
    >>
    >>
    >>     _______________________________________________
    >>     List info and archives athttp://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >>     Unsubscribe athttp://lists.ibiblio.org/mailman/options/cc-licenses
    >>
    >>     In consideration of people subscribed to this list to participate
    >>     in the CC licenseshttp://wiki.creativecommons.org/4.0  development
    >>     process, please direct unrelated discussions to the cc-community list
    >>     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
    >     -----Inline Attachment Follows-----
    >
    >     _______________________________________________
    >     List info and archives at
    >     http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >     Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses
    >
    >     In consideration of people subscribed to this list to participate
    >     in the CC licenses http://wiki.creativecommons.org/4.0 development
    >     process, please direct unrelated discussions to the cc-community list
    >     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
    _______________________________________________
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    Unsubscribe at http://lists.ibiblio.org/mailman/options/cc-licenses
    
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    Andres Guadamuz | 15 Apr 02:37 2012
    Picon

    Re: Moral rights, Attribution & Choice of Law

    Hi,

    I completely agree with the goal of wider adoption, and I am also a great supporter of institutional adoption. The problem is that I honestly cannot see from your message and explanation what is the issue with regards to the current moral rights wording, other than the continuous statement that this is problematic for institutions, and the statement that the law for data varies from one jurisdiction to the other (which it does).

    I was part of CC-UK (and CC-Scotland before that), so I am very familiar with the UK government licence and with the reasons that led to their adoption of their own licensing solution instead of CC, and they had nothing to do with moral rights as far as I know.

    It is a great goal to  strive for the widest possible level of institutional adoption, but a licence of this type cannot strive to be universally accepted. CC licences may not meet all criteria in some institutions. IMO 4.0 goes a long way towards making it easier for institutions to adopt the licences.

    Best Regards,

    Andres

    On 14/04/2012 02:58 p.m., pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org wrote:
    We'll have to agree to differ.

    However, if CC desires their licences to be as applicable for data as they are for creative works, particularly for those responsible organisations around the world who currently feel the CC licences are inadequate for their data, (for moral rights issues & other reasons) then it is up to CC to provide a suitable licence. The organisation I work for has its own, as do many other agencies & in the UK example, the UK Govt itself. While these licences may be consistent with many of the principles enshrined in CC licences, they only exists because of perceived inadequacies in the CC licences.

    I'd like to encourage CC to ensure their licences do meet our needs, so we are comfortable using them. By not recognising our concerns, and providing a licence we are comfortable using, we will continue to use alternative licences.

    This is not a major issue for us, but more one for CC if they genuinely desire to make their licences more widely applicable, particularly in the Data Commons, as they claim to be doing.

    Cheers,

       Brent

    --- On Sun, 4/15/12, Andres Guadamuz <anduril13 <at> gmail.com> wrote:

    From: Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>
    Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    To: pcreso-+3f9519Zn4bQT0dZR+AlfA@public.gmane.org
    Cc: "Development of Creative Commons licenses" <cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
    Date: Sunday, April 15, 2012, 12:25 AM

    Hi,

    pcreso <at> pcreso.com wrote:

    > However, CC is pushing the same licences for data, without indicating
    > the difference between legislated moral rights for data & for creative
    > works. I do not regard this as a responsible approach, especially with
    > CC4 being openly touted as being more appropriate for data, and the CC4
    > licence wording not addressing this issue to date.

    I agree that moral rights are treated differently in various
    jurisdictions, including different treatment with how the law deals with
    data and software. However, I do not think that it's CC's responsibility
    to inform of this fact to its users, or to confuse authors with lengthy
    explanations of how the law deals with data specifically in NZ,
    Australia, the UK, or civil law systems.

    The licence has to do only one thing with regards to moral rights. To
    the extent that it is allowed by law (and in many jurisdiction it is
    clearly NOT possible), the owner promises to waive and/or not assert
    their moral rights. That is done by the current draft in the best way
    possible. The wording could be slightly clearer to that extent, but it
    does what it says on the tin.

    I am still unsure as to why you think that this should be treated
    differently even after reading your email twice. The objective is to
    make the licence as clear as possible, and any explanation about
    different ways in which jurisdiction deals with moral rights does not
    help to reach that objective.

    Best Regards,

    Andres


    On 13/04/2012 22:17, pcreso <at> pcreso.com wrote:
    > Hi Andres,
    >
    > Some detail (hopefully not too much)...
    >
    > Moral rights under CC apply well (generally) for creative works. I don't
    > have any issues in that regard.
    >
    > However, CC is pushing the same licences for data, without indicating
    > the difference between legislated moral rights for data & for creative
    > works. I do not regard this as a responsible approach, especially with
    > CC4 being openly touted as being more appropriate for data, and the CC4
    > licence wording not addressing this issue to date.
    >
    > As an aside: a data mashup can be based on some underlying data without
    > presenting any of that data in the final product. This is also a
    > situation very different from creative works. Data was used but is no
    > longer there as explicit content. How does CC apply? Attribution is
    > relatively straightforward, but what about inappropriate or misleading use?
    >
    > In New Zealand the law is explained in this guide from the Copyright
    > Council:
    > http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105
    > <http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105>
    >
    > The relevant section:
    > "Who has moral rights? Moral rights belong to authors of:
    > - literary works, including novels, screen plays, poems and song lyrics;
    > - dramatic works, including dance, mime and film scenarios or scripts;
    > - musical works;
    > - artistic works, including paintings, drawings, diagrams, maps, engravings,
    > etchings, photographs, sculptures and architectural works.
    >
    > Moral rights are also enjoyed by directors of films made on or after 1
    > January 1995
    > (even though copyright is usually owned by film producers).
    >
    > Creators of sound recordings and computer-related works have no moral
    > rights under
    > the Copyright Act."
    >
    > Data is regarded as computer-related works, and those who release
    > datasets under CC enjoy no moral rights to protect against misuse or
    > misrepresentation of them or their data. Very different for those
    > releasing creative works. Where does CC warn of this possibility when
    > suggesting their licence be used for data?
    >
    > In Australia, moral rights afford the usual protection, from
    > http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf:
    >
    > "Creators have the right:
    > - to be attributed (or credited) for their work;
    > - not to have their work falsely attributed; and
    > - not to have their work treated in a derogatory way.
    > ...
    > This could include:
    > - distorting, mutilating or materially altering the work in a way that
    > prejudices the creatorʼs honour or reputation; and
    > - in the case of artistic works, destroying the work or exhibiting it in
    > public in a way that
    > prejudices the creatorʼs honour or reputation.
    > ...
    > Moral rights apply to:
    > - literary material such as novels, screenplays, poems, song lyrics and
    > journal articles;
    > - artistic works such as paintings, drawings, architecture, sculpture,
    > craft work, photographs, maps and plans;
    > - musical works;
    > - dramatic works such as ballets, plays, screenplays and mime;
    > - computer programs; and
    > - cinematograph films such as feature films, documentaries, music
    > videos, television programs and television commercials."
    >
    > But NOT data. Also, in Australia, moral rights are considered "personal"
    > and "individual" rights, and cannot be vested in institutions. Most data
    > is released by institutions, not individuals. Again, where does CC
    > responsibly explain this to potential users?
    >
    > The UK Open Government Licence is often described as a CC compliant
    > licence. Largely it is, but it includes some additions that cover these
    > issues pertaining to data. They were deemed necessary, otherwise an
    > actual CC licence could probably have been used. They affirm the moral
    > rights of the data licensor, and place responsibilities upon the user.
    > From: http://www.nationalarchives.gov.uk/doc/open-government-licence/
    >
    > Data users must:
    >
    > # "...ensure that you do not use the Information in a way that suggests
    > any official status or that the Information Provider endorses you or
    > your use of the Information;
    > # ensure that you do not mislead others or misrepresent the Information or
    > its source;
    > # ensure that your use of the Information does not breach the Data
    > Protection Act 1998 or the Privacy and Electronic Communications (EC
    > Directive) Regulations 2003."
    >
    > The second requirement in particular effectively applies a moral rights
    > clause to data released under this licence, which is missing in
    > legislation. By suggesting users of CC licences that whatever they
    > release under CC is afforded local moral rights protection I believe CC
    > is misleading them. Until this is addressed, CC licences are not as
    > applicable or suitable for data as they are for creative works.
    >
    > There is a difference in law between creative works & data, and licences
    > for data should be clear about this.
    >
    > Cheers,
    >
    > Brent Wood
    >
    >
    > --- On *Sat, 4/14/12, Andres Guadamuz /<anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>/* wrote:
    >
    >
    >     From: Andres Guadamuz <anduril13-Re5JQEeQqe8AvxtiuMwx3w@public.gmane.org>
    >     Subject: Re: [cc-licenses] Moral rights, Attribution & Choice of Law
    >     To: cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org
    >     Date: Saturday, April 14, 2012, 12:17 PM
    >
    >     You have mentioned this before. Can you elaborate? Moral rights are
    >     handled quite well in my opinion, the current wording covers all of
    >     the national practices, this has been the subject of constant
    >     discussion since the early licences, and the existing practice seems
    >     to fit well in various jurisdictions.
    >
    >     On 13/04/2012 02:24 p.m., pcreso <at> pcreso.com
    >     </mc/compose?to=pcreso <at> pcreso.com> wrote:
    >>     Moral rights are described in a very misleading fashion, and the
    >>     issues regarding these as providing protection for data released
    >>     under CC licences need to be far clearer. Frequently there are none.
    >>
    >>     In the US, Moral Rights only pertain to visual media. In Australia
    >>     moral rights can only be assigned to individuals, not
    >>     organisations, in New Zealand computer related works are exempt.
    >>     CC makes little or no attempt to explain the distinction, &
    >>     limitations of CC licences for data.
    >>
    >>     Those who wish to release data under CC licences, something CC is
    >>     trying to encourage, need to be aware that many countries have
    >>     different laws covering data & creative works, and that CC
    >>     licences relying on local Moral Rights legislation provide very
    >>     different protections.
    >>
    >>     --- On *Thu, 4/12/12, Kent Mewhort /<kmewhort <at> cippic.ca>
    >>     </mc/compose?to=kmewhort <at> cippic.ca>/* wrote:
    >>
    >>
    >>         From: Kent Mewhort <kmewhort <at> cippic.ca>
    >>         </mc/compose?to=kmewhort <at> cippic.ca>
    >>         Subject: [cc-licenses] Moral rights, Attribution & Choice of Law
    >>         To: "Development of Creative Commons licenses"
    >>         <cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
    >>         </mc/compose?to=cc-licenses-rm8PX32fqvbMZ2x0e22RKNi2O/JbrIOy@public.gmane.org>
    >>         Date: Thursday, April 12, 2012, 9:08 AM
    >>
    >>         IMO, the overall direction of this license looks to be shaping up
    >>         nicely. A few comments:
    >>
    >>         Moral rights
    >>         -------------
    >>
    >>         1. Substantive comment:
    >>         It's not clear to me that this provision moves us anywhere
    >>         different
    >>         from the status quo. It seems to only turn the question of whether
    >>         moral rights have been violated into a question of whether an
    >>         act is a
    >>         "reasonable exercise" of the rights under the license. Isn't this
    >>         essentially the role of moral rights in the first place? Moral
    >>         rights
    >>         set the threshold on whether a particular exercise of a copyright
    >>         license or assignment is reasonable in light of the author's
    >>         personal
    >>         interests.
    >>
    >>         I would suggest leaving moral rights altogether intact.
    >>         Attribution and
    >>         non-association form part of the CC license terms themselves,
    >>         so are
    >>         unlikely to be otherwise violated. For other moral rights such as
    >>         integrity and derogatory action, this is generally a
    >>         reasonable high bar
    >>         and I can't image would pose any significant sharing hurdles
    >>         (unless the
    >>         bar is much lower in some other jurisdictions). Alternatively,
    >>         if we do
    >>         insist on waiving moral rights, I suggest simply waiving them
    >>         entirely
    >>         to avoid any disputes about what constitutes a "reasonable
    >>         exercise".
    >>
    >>         2. Formal comment:
    >>         This wording took a couple of doubling-backs to understand
    >>         what it's
    >>         actually saying. To improve clarity, I suggest striking out
    >>         the two
    >>         embedded "however..." clauses and instead leading off with
    >>         "Only to the
    >>         minimum extend possible and necessary to allow You to reasonably
    >>         exercise...".
    >>
    >>         Attribution
    >>         ------------
    >>
    >>         3. The scope of "any reasonable manner" seems a bit too broad,
    >>         especially given the importance and multi-faceted purpose of
    >>         attribution. I liked the old "at least as prominent as" provision,
    >>         though I can see how this can cause problems in some contexts. How
    >>         about "any reasonably prominent manner", or even "a reasonable
    >>         manner
    >>         consistent with, to the extent feasible, any customary
    >>         attribution for
    >>         the medium or means You are using".
    >>
    >>         New definition of to "Share"
    >>         -----------------------------
    >>
    >>         4. If we end up with no ports, this definition may not be
    >>         sufficient to
    >>         equally cover the intended activities in all jurisdictions.
    >>         For example,
    >>         in Canada, we have no "making available" right as of yet and
    >>         the right
    >>         to "communicate to the public" by telecommunication arguably
    >>         doesn't
    >>         cover one-to-one downloads through services such as iTunes (an
    >>         issue
    >>         which is presently before our Supreme Court). It might be
    >>         advisable to
    >>         insert an "or distribute" in there.
    >>
    >>
    >>         Choice of Law
    >>         --------------
    >>
    >>         5. There hasn't been much discussion on this, but I think deserves
    >>         careful consideration in light of the move towards
    >>         internationalization. Given the different laws on fair dealing,
    >>         copyright terms, and other aspects of copyright law, it
    >>         creates a lot of
    >>         uncertainty to simply leave choice of law to local conflict of law
    >>         rules. I think something analogous to the U.K. government
    >>         license could
    >>         work well to tighten up certainty: "This licence is governed
    >>         by the laws
    >>         of the jurisdiction in which the Information Provider has its
    >>         principal
    >>         place of business, unless otherwise specified by the
    >>         Information Provider. "
    >>
    >>         Alright, that's all for now :)!
    >>
    >>         Kent
    >>         _______________________________________________
    >>         List info and archives at
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >>         Unsubscribe at
    >>         http://lists.ibiblio.org/mailman/options/cc-licenses
    >>
    >>         In consideration of people subscribed to this list to participate
    >>         in the CC licenses http://wiki.creativecommons.org/4.0 development
    >>         process, please direct unrelated discussions to the
    >>         cc-community list
    >>         http://lists.ibiblio.org/mailman/listinfo/cc-community
    >>
    >>
    >>
    >>     _______________________________________________
    >>     List info and archives athttp://lists.ibiblio.org/mailman/listinfo/cc-licenses
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    >>     In consideration of people subscribed to this list to participate
    >>     in the CC licenseshttp://wiki.creativecommons.org/4.0  development
    >>     process, please direct unrelated discussions to the cc-community list
    >>     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
    >     -----Inline Attachment Follows-----
    >
    >     _______________________________________________
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    >     In consideration of people subscribed to this list to participate
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    >     process, please direct unrelated discussions to the cc-community list
    >     http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
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    Sarah Pearson | 12 Apr 19:15 2012

    Re: Subject Matter: Semiconductor Masks and Design Rights

    Thanks very much for this concrete proposal, Christopher. We have added it to the 4.0 wiki.

    Defining the scope of the license is the most challenging aspect of the 4.0 drafting process. We continue to struggle with the tension between wanting the license to be as comprehensive as possible to give licensees all of the rights they need to truly exercise the rights granted, and on the other hand, preventing it from being so broad it includes rights that are not likely to be held by a single licensor.

    Note there is also a second question as to whether these rights beyond copyright should be licensed and subject to all of the license conditions, or whether they should simply be waived or not asserted by the licensor (and if so, which rights should fall into which category). The initial draft of 4.0 includes a waiver of "ancillary rights" to the extent possible and necessary for the licensee to exercise the rights granted under the license. We are very curious to hear thoughts on whether this dual approach is practical and useful.

    All of these issues are extremely important for receiving community feedback. Any input would be much appreciated.

    best,
    Sarah


    On Wed, Apr 11, 2012 at 3:59 AM, Christopher Covington <cov <at> vt.edu> wrote:
    With the expansion of rights licensed expanding to include database
    rights, I'd like to propose also adding other sui generis rights,
    specifically semiconductor mask rights and design rights. These were
    both recently added to a modified version of the Apache license to come
    up with the Solderpad Open License [1].

    1. http://solderpad.org/licenses/SHL-0.51/

    Regards,
    Christopher

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    Christopher Covington | 13 Apr 01:24 2012
    Picon

    Re: Subject Matter: Semiconductor Masks and Design Rights

    For whatever it's worth, I think semiconductor mask rights are so
    similar to copyright that they should be given the same
    treatment--licensed rather than waived. Design patents should probably
    be treated similarly to traditional patents. I for one am in favor of an
    explicit patent grant. I don't have much more than a piecemeal
    understanding of all the issues and a gut feeling to motivate these
    positions, however.
    
    Regards,
    Christopher
    
    On Thu, 2012-04-12 at 10:15 -0700, Sarah Pearson wrote:
    > Thanks very much for this concrete proposal, Christopher. We have
    > added it to the 4.0 wiki. 
    > 
    > Defining the scope of the license is the most challenging aspect of
    > the 4.0 drafting process. We continue to struggle with the tension
    > between wanting the license to be as comprehensive as possible to give
    > licensees all of the rights they need to truly exercise the rights
    > granted, and on the other hand, preventing it from being so broad it
    > includes rights that are not likely to be held by a single licensor. 
    > 
    > Note there is also a second question as to whether these rights beyond
    > copyright should be licensed and subject to all of the license
    > conditions, or whether they should simply be waived or not asserted by
    > the licensor (and if so, which rights should fall into which
    > category). The initial draft of 4.0 includes a waiver of "ancillary
    > rights" to the extent possible and necessary for the licensee to
    > exercise the rights granted under the license. We are very curious to
    > hear thoughts on whether this dual approach is practical and useful. 
    > 
    > All of these issues are extremely important for receiving community
    > feedback. Any input would be much appreciated.
    > 
    > best,
    > Sarah 
    > 
    > 
    > On Wed, Apr 11, 2012 at 3:59 AM, Christopher Covington <cov@...>
    > wrote:
    >         With the expansion of rights licensed expanding to include
    >         database
    >         rights, I'd like to propose also adding other sui generis
    >         rights,
    >         specifically semiconductor mask rights and design rights.
    >         These were
    >         both recently added to a modified version of the Apache
    >         license to come
    >         up with the Solderpad Open License [1].
    >         
    >         1. http://solderpad.org/licenses/SHL-0.51/
    >         
    >         Regards,
    >         Christopher
    >         
    >         _______________________________________________
    >         List info and archives at
    >         http://lists.ibiblio.org/mailman/listinfo/cc-licenses
    >         Unsubscribe at
    >         http://lists.ibiblio.org/mailman/options/cc-licenses
    >         
    >         In consideration of people subscribed to this list to
    >         participate
    >         in the CC licenses http://wiki.creativecommons.org/4.0
    >         development
    >         process, please direct unrelated discussions to the
    >         cc-community list
    >         http://lists.ibiblio.org/mailman/listinfo/cc-community
    > 
    > _______________________________________________
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    > 
    > In consideration of people subscribed to this list to participate 
    > in the CC licenses http://wiki.creativecommons.org/4.0 development
    > process, please direct unrelated discussions to the cc-community list
    > http://lists.ibiblio.org/mailman/listinfo/cc-community
    
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    Sarah Pearson | 13 Apr 18:14 2012

    Re: Subject Matter: Semiconductor Masks and Design Rights

    Thanks for weighing in, Christopher. Here are a few considerations for us to think about as we decide on various categories of rights --

    1) Every right we include in the license grant creates the possibility that someone holding those rights may apply the license, even if that same rights holder does not own the copyright. This raises a number of challenges.
    - CC licenses were built as copyright licenses, so the license may not be the right fit if applied only to rights other than copyright. If the scope of the additional right being licensed varies significantly from the scope of copyright, it would be very confusing for someone holding only that additional right to apply a CC license. (For example, if that additional right does not allow adaptations of the work, we would have to somehow ensure that those rights holders only applied the ND licenses.) For this reason (among others), we need to thoroughly understand the scope of any additional rights we include in the license grant.

    2) As a general matter, we likely only want to include rights likely to be held by the copyright owner. If not, we greatly increase the risk of the scenario I described above, which increases the complexity of the licenses considerably. (Otherwise, how would licensees know what permission they are getting when they use a CC license?) That means a baseline question for any new right is likely: Is the right likely to be held by the copyright owner?

    3) Even where the copyright owner holds additional rights, we still must keep in mind that the license was designed as a copyright license. Because some other areas of law have extremely different rights and subject matter, we will want to think very carefully about the implications of adding any significantly different types of rights (such as patent or trademark).

    4) Where it does not make sense for us to include a particular category of rights in the license grant, a waiver is another option. This approach avoids the scenario above where someone holding only rights other than copyright applies a CC license. But it would have the benefit of neutralizing rights owned by the copyright holder that might interfere with the copyright license. Of course, CC's experience with the database rights waiver should lead us to approach this option with caution as well.

    5) Where we do not include additional rights in the license or waiver, those rights may prevent licensees from exercising the rights granted by CC licenses. This is an obvious point, but one worth making because it is the reason we are considering the issue at all.

    Curious if others have additional considerations to add to the discussion.

    best,
    Sarah

    On Thu, Apr 12, 2012 at 4:24 PM, Christopher Covington <cov-PjAqaU27lzQ@public.gmane.org> wrote:
    For whatever it's worth, I think semiconductor mask rights are so
    similar to copyright that they should be given the same
    treatment--licensed rather than waived. Design patents should probably
    be treated similarly to traditional patents. I for one am in favor of an
    explicit patent grant. I don't have much more than a piecemeal
    understanding of all the issues and a gut feeling to motivate these
    positions, however.

    Regards,
    Christopher

    On Thu, 2012-04-12 at 10:15 -0700, Sarah Pearson wrote:
    > Thanks very much for this concrete proposal, Christopher. We have
    > added it to the 4.0 wiki.
    >
    > Defining the scope of the license is the most challenging aspect of
    > the 4.0 drafting process. We continue to struggle with the tension
    > between wanting the license to be as comprehensive as possible to give
    > licensees all of the rights they need to truly exercise the rights
    > granted, and on the other hand, preventing it from being so broad it
    > includes rights that are not likely to be held by a single licensor.
    >
    > Note there is also a second question as to whether these rights beyond
    > copyright should be licensed and subject to all of the license
    > conditions, or whether they should simply be waived or not asserted by
    > the licensor (and if so, which rights should fall into which
    > category). The initial draft of 4.0 includes a waiver of "ancillary
    > rights" to the extent possible and necessary for the licensee to
    > exercise the rights granted under the license. We are very curious to
    > hear thoughts on whether this dual approach is practical and useful.
    >
    > All of these issues are extremely important for receiving community
    > feedback. Any input would be much appreciated.
    >
    > best,
    > Sarah
    >
    >
    > On Wed, Apr 11, 2012 at 3:59 AM, Christopher Covington <cov-PjAqaU27lzQ@public.gmane.org>
    > wrote:
    >         With the expansion of rights licensed expanding to include
    >         database
    >         rights, I'd like to propose also adding other sui generis
    >         rights,
    >         specifically semiconductor mask rights and design rights.
    >         These were
    >         both recently added to a modified version of the Apache
    >         license to come
    >         up with the Solderpad Open License [1].
    >
    >         1. http://solderpad.org/licenses/SHL-0.51/
    >
    >         Regards,
    >         Christopher
    >
    >         _______________________________________________
    >         List info and archives at
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    >         http://lists.ibiblio.org/mailman/options/cc-licenses
    >
    >         In consideration of people subscribed to this list to
    >         participate
    >         in the CC licenses http://wiki.creativecommons.org/4.0
    >         development
    >         process, please direct unrelated discussions to the
    >         cc-community list
    >         http://lists.ibiblio.org/mailman/listinfo/cc-community
    >
    > _______________________________________________
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    Rob Myers | 13 Apr 21:47 2012

    Re: Subject Matter: Semiconductor Masks and Design Rights

    On 04/13/2012 12:24 AM, Christopher Covington wrote:
    > For whatever it's worth, I think semiconductor mask rights are so
    > similar to copyright that they should be given the same
    > treatment--licensed rather than waived. Design patents should probably
    > be treated similarly to traditional patents. I for one am in favor of an
    > explicit patent grant. I don't have much more than a piecemeal
    > understanding of all the issues and a gut feeling to motivate these
    > positions, however.
    
    One problem is that the CC 4.0 licenses will be used internationally. So 
    if you are in a country with mask rights but I am not, and I am in a 
    country with design rights but you are not, and we use each others work 
    then we may not be bound by the license in the way that the licensor 
    expects.
    
    (I am not a lawyer, etc.)
    
    Do people support licensing rights even where this is the case? For me 
    this is a key question.
    
    - Rob.
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    Sarah Pearson | 20 Apr 02:11 2012

    Re: Subject Matter: Semiconductor Masks and Design Rights

    Comments inline.


    On Fri, Apr 13, 2012 at 12:47 PM, Rob Myers <rob <at> robmyers.org> wrote:
    On 04/13/2012 12:24 AM, Christopher Covington wrote:
    > For whatever it's worth, I think semiconductor mask rights are so
    > similar to copyright that they should be given the same
    > treatment--licensed rather than waived. Design patents should probably
    > be treated similarly to traditional patents. I for one am in favor of an
    > explicit patent grant. I don't have much more than a piecemeal
    > understanding of all the issues and a gut feeling to motivate these
    > positions, however.

    One problem is that the CC 4.0 licenses will be used internationally. So
    if you are in a country with mask rights but I am not, and I am in a
    country with design rights but you are not, and we use each others work
    then we may not be bound by the license in the way that the licensor
    expects.

    (I am not a lawyer, etc.)

    Do people support licensing rights even where this is the case? For me
    this is a key question.

    Because copyright operates differently in different jurisdictions, in many ways this is already happening. That is, as a U.S. licensee I have different obligations under the license than someone using the same CC-licensed work in another jurisdiction. You're certainly correct to point out that this is an even more glaring inconsistency if we start licensing rights that do not even exist in all jurisdictions - for example, database rights. We have done our best in this draft to emphasize that the license only applies where "permission is otherwise required by law," which is designed to address this problem. Whether it conveys the concept in a sufficiently clear way for non-lawyers is an open question.

    - Rob.
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    Gmane