4.0/Moral rights
This page presented an issue for consideration in the CC license suite 4.0 versioning process. The discussions have now concluded with the publication of the 4.0 licenses, and the information on this page is now kept as an archive of previous discussions. The primary forum for issues relating to the 4.0 versioning process was the CC license discuss email list. You may subscribe to contribute to any continuing post-launch discussions, such as those surrounding compatibility and license translation. The wiki has been populated with links to relevant email threads from the mailing list where applicable, and other topics for discussion were raised in the 4.0/Sandbox. See the 4.0 page for more about the process.
Draft 1 Treatment: This draft presents a nuanced, slight departure from the treatment of moral rights in 3.0 (international) and a little more than half the 3.0 ports, but is in keeping with how many of the jurisdictions that ported 3.0 chose to treat moral rights. In this draft, moral rights are waived (or not asserted), but only if legally possible and then only to the extent necessary to allow licensees to reasonably exercise their rights under the license. All other moral rights are retained and unaffected by the license. This proposal (and in particular the “reasonably exercise” language) may look familiar to those involved in the 3.01 proposal. We opted for this approach for a few reasons:
- We are mindful of enforceability challenges that a more complete waiver or license of moral rights presents. This option accounts for jurisdictions in which a waiver of moral rights is unenforceable, by only waiving such rights on the limited basis if legally possible. Where that is not possible, those rights are reserved to licensor.
- We do not want to overreach. We have heard little justification for licensing or waiving moral rights that are unrelated to the exercise of the rights granted. The scope of the waiver is no greater or less than the scope of the licensed copyright and neighboring rights, except where no waiver is permitted in which case moral rights remain unaffected.
- This approach will help ensure the licenses generally operate the same way in civil and common law jurisdictions.
- civil law jurisdictions – moral rights are typically non-waivable, but courts may interpret the license to include an implied waiver to allow licensees to exercise the rights granted
- common law jurisdictions – moral rights are generally considered waived to the extent necessary to allow licensees to exercise the rights granted
There are two basic issues with respect to moral rights:
- Current moral rights language is complicated, difficult to understand -- see the section 4(d) current language:
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- Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.
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- In ported versions of the license, this language has progressively evolved since 3.0 was first published in 2007, becoming less complicated but also introducing a variation from the original treatment. A standard incarnation of moral rights in the more recent (2010 - present) ported licenses is, "Moral Rights remain unaffected to the extent they are recognized and not waivable by applicable law."[1] This phraseology implies a waiver to the extent permitted (where they exist) for any use implicating copyright, whereas the language in the international licenses conveys such rights are waived (or will not be asserted) where permitted, to the extent a licensee makes an adaptation.
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- Some fear 4(d) causes licensees to agree to more restrictions -- how expansive is "permitted by applicable law" in removing agreement to restrictions -- and have encouraged use of US ports eg https://creativecommons.org/licenses/by-sa/3.0/us/legalcode which do not contain 4(d) at all or unported with a waiver of 4(d).
This was previously an issue during discussion of Wikimedia migration to BY-SA, nearly prompting a version 3.01 in order to address. See the discussion of possible changes to address at Version_301#Section 4(f), which should be a starting point for 4.0 proposals.
Proposals for 4.0
For ease of reference on discussion lists, please do not alter proposal numbers.
MR Proposal #1: Clarify language in moral rights provision.
- Pros: Eliminates legal uncertainty that is created by ambiguous language.
- Cons:
- Other comments: More information on this proposal is in this email thread from license-discuss.
- Treatment in 4.0 d.1: Incorporated consistent with drafting approach described above.
Please add more moral rights proposals here, and number them sequentially.
Related debate
We encourage you to sign up for the license discussion mailing list, where we will be debating this and other 4.0 proposals. HQ will provide links to related email threads from the license discussion mailing list here.
Relevant references
Please add citations that ought inform this 4.0 issue below.
Notes
- ↑ See for example the Australian 3.0 BY license.
