Version 3.01 – Public Discussion Launched

Hello CC Community,

I’m writing to tell you about an update we are proposing to our current version of our licenses (3.0). Because the update is intended simply to make clear something we intended the license to mean, this version would be numbered 3.01.

As you know, in February 2007, after 9 months of public comment, CC released version 3.0 of our licenses. Section 4(f) of those licenses (the “Unported” licenses; this does not apply to ported jurisdiction licenses) addressed the question of moral rights. It stated:

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.

The intent of this clause, and the balance of the section it is located within, is essentially to leave moral rights untouched by our license. As the discussion about this change indicated, while many within our community would prefer a license that permitted creators to waive moral rights as they waive some of the exclusive rights granted by copyright, internationally, this is not a reliable posture for our licenses to take. In some jurisdictions, the act of purporting to waive moral rights might jeopardize the validity of the license. And in others, the rights can’t be waived at all.

Despite this intent, some — especially within the Wikipedia community — have read this clause to mean not that moral rights are untouched, but that moral rights are being enforced by the license. That was not our intent. Because this is an important point to have understood, we have therefore inserted a modification to Section 4(f) .

We have also integrated suggestions from jurisdiction partners including Japan to add clarity to the remainder of this section.

Hence, the new wording proposes the following modifications to section 4 (f):

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, ifOriginal Author, in those jurisdictions in which the moral right of integrity exists and by operation of local law constrains the freedom to adapt or collect licensed work, and You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Where the Licensor is the Original Author of the Work, the Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) wcould be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial toviolate the moral right of integrity of 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, as long as You do not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation, so as to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations), but not otherwise.

So that Section 4(f) in version 3.01 Unported licenses would read:

Except as otherwise agreed in writing by the Original Author, in those jurisdictions in which the moral right of integrity exists and by operation of local law constrains the freedom to adapt or collect licensed work, and You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Where the Licensor is the Original Author of the Work, the Licensor agrees that in those jurisdictions (e.g. Japan) in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) could violate the moral right of integrity of the Original Author, the Licensor will waive or not assert this Section, to the fullest extent permitted by the applicable national law, as long as You do not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation, so as to enable You to reasonably exercise Your right under Section 3(b) of this License, but not otherwise.

We invite discussion about this clarification on our licenses list. And assuming the discussion doesn’t reveal any problems with the change, we hope to version in this small way soon.

We are all grateful to the help of the community in helping us to see this problem.