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....
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....
[I]n 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....
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....
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.
Posted by
Peter Suber at 11/07/2007 02:26:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
