CC-BY-SA and moral rights provision

[Richard Fontana]

Hi, 

Sorry to reopen an issue that was supposed to be resolved.  When we
were discussing whether to go with CC-BY-SA unported or CC-BY-SA US,
there was an issue I had overlooked. The unported version of CC-BY-SA
3.0 has a provision, 4d, concerning 'moral rights' that has been the
subject of some controversy in the CC community:

  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. 

Quick background: many copyright law regimes recognize something called
'moral rights' of authors that are distinct from the 'economic rights'
we ordinarily associate with copyright.  These are generally
unassignable rights (you can't sell them) and in some countries you
can't waive them.  In the US, oversimplifying a bit, moral rights are
generally assumed not to exist for most kinds of copyrightable works
other than visual works, but moral rights are important in many other
countries, particularly in Europe. 

I believe the intent of CC-BY-SA 3.0 unported 4d was just to say that,
for copyright regimes that recognize moral rights, CC-BY-SA does not
affect them in any way.  Larry Lessig pointed this out in a blog
posting which currently eludes me.  However, there is an argument that
the provision, as worded, suggests that even where the copyright law
regime does not recognize moral rights, the license is effectively
importing them in. This provision was, FWIU, not in earlier unported
versions of CC-BY-SA, and it is not in the US version of CC-BY-SA 3.0.
I understand that there is some effort to clarify this provision in
future revisions of CC-BY-SA. 

Note that moral rights (which in many countries that recognize them
apply to software as well as to other kinds of works) are at tension
with the FOSS norms that are the heart of Fedora legal policies and
which encourage modification even if it might be 'prejudicial' to the
author. Most FOSS licenses (which admittedly tend to be drafted by
Americans) tend to assume they don't exist. 

Fedora documentation, though written by many authors, many of whom are
unaffiliated with Red Hat, is technically being licensed out
downstream by Red Hat, the licensee named in the Fedora CLA. I would
assume that 4d would not apply to the extent that applicable underlying
law is US law. However, I suppose there is some doubt about this.  In
the US any moral rights (or similar rights that might be captured by
4d) that do exist are almost certain to be waivable, though there may
be some doubt about that too. 

Anyway, I would not want Red Hat, as licensor of Fedora documentation,
to stand behind 4d, as a matter of principle, even if it has no actual
applicability. One solution would be to go with CC-BY-SA 3.O US, which
omits the moral rights provision entirely.  Alternatively, however, we
could continue with using CC-BY-SA 3.0 unported and revise the Publican
licensing notice to say the following:

  Copyright © 2009 Red Hat, Inc. and others. 

  This document is licensed by Red Hat under a Creative Commons
  Attribution–Share Alike 3.0 Unported license ("CC-BY-SA"). An
  explanation of this license is available at
  http://creativecommons.org/licenses/by-sa/3.0/. The original authors
  of this document, and Red Hat, designate the Fedora Project as the
  "Attribution Party" for purposes of CC-BY-SA. In accordance with
  CC-BY-SA, if you distribute this document or an adaptation of it, you
  must provide the URL for the original version.

  Red Hat, as the licensor of this document, waives and agrees not to
  assert the right to enforce Section 4d of CC-BY-SA to the fullest
  extent permitted by applicable law. 


That extra language doesn't actually extinguish any moral rights claims
that Fedora contributors might have, for better or worse; I think it
just has the effect of making clear that the CC license won't be used
by Red Hat as a separate mechanism to enforce such moral rights.
 
- Richard