CC, Open Access, and moral rights
November 7th, 2007 by Thinh
A question that we often see in connection with the use of Creative Commons licenses in OA publishing is how the Creative Commons licenses, (and in particular CC-BY) affect moral rights. One example is this post on the topic by Peter Suber.
From the perspective of moral rights, the Creative Commons licenses start with a simple proposition: They don’t affect moral rights. The Creative Commons FAQ says that, “All Creative Commons licenses (with the exception of Canada) leave moral rights unaffected.”
Although we are frequently used to talking about concepts such as “moral rights” as if they are the same everywhere, most lawyers are well aware that all laws are local, meaning that they have jurisdictional limits and variations. For example, although the United States is obligated to protect moral rights under the Berne Convention, the United States does it very differently than countries in Europe, and it does not protect the same range of rights. The United States uses a combination of legislation (such as the Visual Artists Rights Act) and common law protections (libel and defamation) to protect an artist’s personality rights. The United States has deemed this sufficient to comply with its Berne Convention obligations. And even individual countries in Europe are different in terms of what rights are protected under the rubric of “moral rights” and how those rights are protected procedurally.
It would be very hard for Creative Commons licenses to capture all the individual legal variations from jurisdiction to jurisdiction. Also, in many jurisdictions, moral rights are unwaivable. So in those jurisdictions, even if the author uses a license that purports to waive moral rights, the author still has them and may still enforce them in the future. That’s why we don’t try to waive these rights. We don’t want to mislead license users by trying to do something that’s impossible. That means if an author has a claim under moral rights in her country, we make it clear that she reserves the right to assert those claims, even if she has licensed the work under a Creative Commons license. Of course, Creative Commons licenses don’t expand those rights either, and the idea of “attribution” under a Creative Commons license is a condition of the copyright license, not a feature of moral rights as such.
So one question comes up a lot: how is it consistent to have a license (such as CC-BY) that allows derivative works to be made while at the same time recognizing that the author reserves his moral rights? Isn’t any derivative work an infringement of moral rights, when they exist? Not necessarily. Moral rights exist to protect the reputation of the author.
So the right of integrity, which bars distortion, alteration or mutilation of the work, does not necessarily bar all derivative works, but only those that are harmful to the reputation of the author. Whether or when there is a recognized harm depends very much on the facts of the case and the particular implementation of moral rights recognized by the country in question. Unfortunately, this can mean that there is a degree of uncertainty for a user who wants to make a derivative work, but this uncertainty cannot be reduced through a license in most jurisdictions. (In Canada, it may be possible to waive some moral rights. See the Creative Commons Canada Moral Rights FAQ here).
Through a combination of existing moral rights protections, the Attribution requirement under Creative Commons licenses, and informal scholarly norms, it may very well be possible to implement the conception of “integrity” as expressed in the BBB declaration, at least to an approximate degree.