Draft 2 Treatment: The treatment of moral rights has not changed from draft 1 to draft 2. We are, however, reintroducing language that draws heavily from the waiver and non-assert language in 3.0. Moral rights are reserved, except to the limited extent the licensor has moral rights that would otherwise prevent the licensee from exercising his or her rights under the license. In those limited circumstances, moral rights are waived or not asserted when possible.
We have also added a provision to the license that alerts licensees that third parties may have rights in the work that could impede use of the work as intended. This provision specifically mentions moral rights because there are circumstances in which the licensor is not the original creator and has no ability to waive or promise not to assert applicable moral rights.
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:
- 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.
- 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." 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.
- 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.
- 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.
- Treatment in 4.0 d.2: Same.
Moral Rights Proposal #2: Take a more proactive stance in support of moral rights.
- Pros: strengthens the license and make it more appealing to creators; address concerns that the current version of CC (v3) has no real provisions for letting Licensor enforce his or her moral rights or author's rights.
- Cons: This creates an internal contradiction where the licensor gives anyone the permission to redistribute his work, but then
has the possibility to arbitrarily prevent someone from doing so, just because he disliked that someone.
- Other comments: Proposed language, "If the Licensor finds Your use or adaption of the Licensed Work to be prejudicial to his honour or reputation, he can serve you a notice terminating this License. In that case, You must get express approval from Licensor if you seek new rights to use the Licensed Work under this Public License."' More information on this proposal is in this email thread from license-discuss.
Please add more moral rights proposals here, and number them sequentially.
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.
Please add citations that ought inform this 4.0 issue below.
- See for example the Australian 3.0 BY license.