A Shareable Future: Creative Commons at 12 years


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I don’t understand how the moral rights clause makes these licenses free. IANAL but my reading of that is if I don’t like you for any reason I can claim “moral rights” and remove your right to use the work.

So, someone uses some art with a CC-BY-4.0 license for example. 5 years later the creator of the art decides they despise the user of the art and claims their moral rights to have it stop being used.

The problem is what’s moral is a personal decision. Some republican could decide democrats using their art is immoral for example. Some teacher could decide some homeschooler using their CCed art is immoral.

Maybe a better example, I find some CCed art and use it in a scene from Hostel 34 (imagine some sequel to the Hostel movie that’s extremely violent). Maybe the director prints out the art, wraps one of the characters in it and cuts their head off. I can imagine some artist being upset at how their art was used. Without moral rights they’d have no claim and so it would be safe to use the CCed art (as CC seems to be intended). But, since CCed art still has moral rights then you really don’t have permission without talking to the original creator and getting a contract where they promise not to claim their moral rights against your use/modifications. (It’s apparently a common contract clause in countries like France and Germany that recognize moral rights because of that very reason).

What am I missing?

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Speaking with my Creative Commons hat on:

  1. In version 4.0, the CC licenses are clear that moral rights are waived to the extent necessary to allow you to use the licensed work, except where the local law makes this impossible. So in most cases, where a licensor has used a CC license on this work, you may make remixes the original artist does not care for; the CC license permits you to do so. The moral rights provision in 4.0 was drafted with this kind of scenario in mind, in fact–you should not have to guess if someone will consider a remix to be offensive or derogatory before knowing if you are allowed to use the work.

  2. You are permitted to either waive or agree not to assert your moral rights in most countries. (In the USA, you do not have any moral rights to waive in the first place, so it would not be the Republicans’ and Democrats’ real or exaggerated moral qualms you needed to worry about!) In the places where this is not possible, it is true that it potentially remains a concern–as with any work subject to the laws of that jurisdiction, not just CC-licensed work. (Other public licenses face this issue as well.)

  3. You are of course always permitted to (and encouraged to respect someone’s requests even where those requests are not at all legally enforceable… but sometimes you can’t make an artistic statement without cracking a few eggs. Or something like that.

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Mostly that the clause does not grant any moral rights but attempts to restricts rights that exist anyway.

The whole issue is that in some jurisdictions moral rights are simply a fact of life and cannot be waived, no matter how hard you try. Of course you can ignore them and avoid confusing users from a different legal tradition with unfamiliar concepts, but they won’t go away.

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