Hi there! The comments of the Chilean team to the new MOU.
1.- Enforcement of the License. According to the clause 1 (a) "The Jurisdiction Licenses shall be consistent with and have the same legal effect as the latest version of the international licenses (currently version 3.0), and be enforceable in the Jurisdiction (the process known as “license adaptation” or “license porting”)." The way it has been drafted suggets an obligation in the results, which, in my opinion any team can granted. Instead it should be drafted as a obligatins in the means, but not in the results.
2.- CC0 and Domestic Law According to the clause 1 (c) "Linguistic Translation of CC0. Affiliate agrees to participate in the linguistic translation of CC0 for the purpose of producing an approved translation of CC0, in adherence with the policies published by CC and made known to Affiliate. The parties will mutually agree on a timetable for producing an approved translation of CC0, together with any other designated leads in the process." As I have explained in the ISP Policy, at least in Chile thre is not legal certainty that CC0 is a legal tool. In fact, there is an express legal provision that bans waive of rights by author. We have made some lobby at the Congress to get a change in the law, but we haven't been successful yet. We cannot implement a legal solution into the domestic level that is illegal, because it would undermine our credibility and the CC's credibility also. Can that clause be omited in our MOU, at least for a while?
3.- Unknown CC Policies. According to the clause I (h) "Further, Affiliate agrees to (...) adhere and publicly promulgate CC positions on matters relating to the public domain, license proliferation, and such other matters as CC makes known to Affiliate, including when responding to public inquiries." May you provide us with a copy of the actual policies of the CC mentioned. I do not know the ones related with "the public domain, license proliferation,... and (... the one related to) responding to public inquiries". Thanks.
4.- Hosting Draft of the CC license. According to the clause II (c) (iii), "Affiliate shall not under any circumstances host or attempt to host any CC Legal Tools (whether in human-readable, lawyer-readable or machine-readable formats, or any other forms or formats whatsoever)." During the process of discussing draft of the license (implementing process), draft of the license were posted in several places, including some of our own website. As a general policy, we do not delete content, because it undermines credibility, particularly if content does not infringe other people's right. Should we deleted those draft wherever they are available? Should we inictiate any legal action against third parties that host those contents within our jurisdiction? We would appreciate more explanation.
5.- Data Protection Infringement. We encourage you to deleted the clause II (d), because the obligation set forth in this about providing personal information infringes the data protection laws of several countries, incuding the European Union members, Chile, Argentina and mexico data protection laws. Also, I don´t think is good policy show this careless with other jurisdictions law. Particularly in a mattter that is not sensible, but extremely sensitive in countries other than the U.S.
6.- Hosting content. According to the clause III (a) "Hosting. CC is solely responsible for hosting any and all CC Legal Tools in human-readable, lawyer-readable and machine-readable formats, including without limitation the Jurisdiction Licenses, the international licenses (including translations thereof), and CC0 (and translations thereof)." I repeat the same concerns that I have expressed previously in the second comment. CC0 is not clearly legal in our country, and we do not having full knowledge of other "international license". Can you let's know the latter ones? Can we drop the CC0 for a while (while it became clearly legal in our country)?
Those are our public concerns about the new MOU. Thaks for answering to them. best, A.
Alberto Cerda Silva
Responses to some of Alberto's comments:
2. To clarify, CC0 does not get ported. There will be a single translation of it into each language, i.e. one Spanish translation. If a jurisdiction team does not wish to participate in the translation of CC0, that is fine. That jurisdiction may request to have the CC0 clause removed from its MOU.
3. Other policies - This comment made an excellent point. Creative Commons will modify the provision to make it clear that these policies are ones of which Creative Commons has notified the Affiliates.
4. License drafts hosted on non-CC HQ platforms - It would be great if you could take down the old license drafts, but if you cannot, you can keep them up. Please ensure that they are clearly marked as drafts and that there is a link to the actual finalized licenses, to avoid confusion.
6. Hosting of licenses and legal tools - This provision does not change anything from current obligations. It says that all licenses and legal tools should only be hosted on CC's website. There is no obligation here for the Affiliate team to do, host or support anything. --Aurelia Schultz 05:55, 2 November 2010 (UTC)
Following some comments from Carolina Botero and Karisma Foundation from the CC Colombia Jurisdiction
The MOU states jurisdiction's commitments on delivering information, giving legal advise and preparing documents on local activities which I agree, however, I believe some degree of commitment on this issues can also be made up to a certain level from CC's side
I think that a reasonable issue to include is CC's commitment to deliver a yearly public road map that could serve as a guide to local teams on the topics and activities that CC as our partner is planning to do, this will also be useful when we have to elaborate the yearly road maps and goals and to allign them up to certain point with other jurisdictions globally.
Also the MOU describes the CC commitment to provide staff that wll be reasonably available for the project, to answer and provide information, while the jurisdiction's commitments go further to actually advise on local legal issues and provide information. CC has always been keen on providing legal information and has built a network of lawyers that supports this, and on specific legal issues CC has worked with local teams. Can't you include a more specific commitment from CCs side that could include this kind of activities as a cooperation frame with the local chapter?
Responses to Comments from All Sources
During the course of the discussion period, CC HQ received comments through a number of different means. Here is the summary of our responses to each inquiry and discussion point raised.
For clarification on fundraising: an Affiliate team can raise funds as needed, but what they should not do is to suggest in any way that Creative Commons will be responsible for fulfilling any claims or deliverables as part of the funding. We simply cannot manage that, nor do we have the resources to oversee and track work etc.
To avoid this from happening, we ask teams not to fundraise in the name of Creative Commons, but rather as your institution or affiliated team. For example, you can raise money as part of your organization to carry out CC-related work (i.e. NGO Doing Good applies for funding to conduct educational workshops about CC), and you can also say as part of your credentials for doing so that you are a member of the CC Affiliate Network or similar. Under the same conditions, you can also raise money as your jurisdiction team, such as CC Germany, but just not as Creative Commons itself. Nor will CC be responsible for achieving aims laid out in those funding requests.
You can lobby as much and as heavily as you want in your own name or affiliate institution's name. But you cannot do this in CC’s name. The reason for this is two-fold. First, whether or not it is “lobbying” under U.S. law -- and advocating for particular legislation or a candidate (which is strictly forbidden in any amount) anywhere in the world counts as lobbying -- CC cannot track the different “statements” being made in our name.
Second, even when we as an organization are allowed to lobby, we must track those activities carefully. If you want to lobby, or if you want to make a formal statement or take a formal position on behalf of Creative Commons, we need you to ask us first. If you would like to draft a position statement for endorsement from CC, please notify Diane.
The MOU makes clear that its terms are non exclusive -- this has always been how CC has operated, and always will. None of the existing MOUs grant an “exclusive” to a single institution or person. This new MOU is simply making that clear, and we think it important to do so because we have seen (on rare occasion) leads express concern about other people doing work in their jurisdiction. That’s not OK, and so to avoid any misunderstanding we have decided it better to make this clear up front.
CC’s success has in large part been due to the multitudes of volunteers who support and advocate for CC around the world. If we find synergistic, committed volunteers in a jurisdiction where we already have a formal affiliate and we think they can add to the existing team, PLEASE keep in mind that the MOU provides that we will talk with existing leads first. It would not be in our best interest to alienate our leads -- we’d be foolish to do something that jeopardizes existing work and teams that are performing well. We do ask everyone to keep an open mind in the event others do surface who have expertise, funding and resources, and the like.
A concern was raised about CC HQ’s request to know who is working on the CC project in each jurisdiction. Creative Commons likes to know who is working on CC projects in order to know who has taken responsibility for activities in the area, to have an idea of the areas of interest of those who get involved with Creative Commons, and to know who to appreciate. Concerns about relating this information to CC HQ stem from data privacy laws and a desire not to violate these laws by having a third person, notably a Project Lead, transferring personal information about others on their team out of their country to Creative Commons.
In order to address this concern, Creative Commons has set-up a collection point where volunteers working on CC projects can voluntarily enter their information, which will be kept private within CC HQ. Those working directly with Creative Commons under affiliate agreements will still be required to provide their own contact information. The Affiliate Team will need to select one person to serve as the main contact for the team, and that person’s information will be made public on the team’s CC page.
A few teams have noted the modularized MOU contains an optional provision for working as a lead on the upcoming translation program for CC0. This is not an obligation, and anyone who does not wish to participate in the program for any reason need not include that provision (when offered) in the final MOU.
It’s important to keep in mind, however, that CC0 is not going to be ported. The translation program involves linguistic translations only. And since languages cross borders, it may well be that a Spanish translation of CC0 will be made by someone outside of your existing country, even if you are in a Spanish-speaking jurisdiction and have decided not to participate in the translation program.
Again, we’d love to have our leads involved in the translations, but if not that’s fine too. Others will want to be involved, and one way or another we expect CC0 to be translated into numerous languages around the world.
Regarding the trademark, there is no obligation to hunt down misuse, although please inform Diane if you come across it. Furthermore, you can always let us know how to register the trademark in your jurisdiction, if you think it desirable. CC will handle trademark registration on a case-by-case basis.
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