[GOAL] Re: CC-BY and open access question: who is the Licensor?

[Andrew A. Adams]

<heather.morrison at uottawa.ca> wrote:

>> PLOS authors retain copyright. CC licenses are a waiver of one's
>> rights under copyright.

Graham Triggs <grahamtriggs at gmail.com> replied:

> That isn't quite true - CC licences are an expression of the rights
> that you grant to end users, and the conditions attached to that
> licence. Rather than a waiver, it is pre-authorisation to exercise
> rights that are normally reserved under copyright, without seeking
> express permission.

> It's a really important difference when you consider that the
> licence also contains conditions under which invalidates the licence
> for an end user. Say, for example, you completely misrepresented
> someone through re-use of their work - that would invalidate the
> licence as it applies to you. Not only would you be unable to re-use
> the work in that way, you would not be allowed any future re-use of
> the original work under a CC-BY licence, without express permission.

> In those circumstances, the full extent of copyright restrictions
> can be applied against you, as someone without access to the CC-BY
> licence.

> However, that does raise an interesting question about licensor vs
> copyright holder - if an end user invalidated the CC-BY licence as
> granted to them, who would be able to authorise any future use:
> PLoS, or the author(s)?

I don't think it's this clear-cut. Over on a list of lawyers working on Free 
Software legal issues (*) we recently had a discussion about what happens 
when someone violates a provision of a free software license. Do they then 
lose all access to the software or could they, after simply stopping their 
violating behaviour, simply download a new copy of the software and start 
using it again>? There is generally no language in any of the Free Software 
licenses limiting the grant of the rights. Different views were offered and 
none have been tested so far in any jurisdiction.

So, if I redistribute a derivate if a CC-ND work, together with a copy of the 
original, I can certainly be sued (with a good chance fo success) for 
violating the ND element. I doubt that a court would increase damages because 
my violation of the ND license then means I didn't have a license to 
distribute the original unamended. Would a court order me to stop future 
distribution of the unamended work as well? How about simoply keeping a copy 
of the original work for my own use?

(*) Just in caxe anyone here is unaware, the whole CC license approach was 
derived from ideas in the Free Software movement, although there are some 
divergences from Free Software ideas in the implementation.

-- 
Professor Andrew A Adams                      aaa at meiji.ac.jp
Professor at Graduate School of Business Administration,  and
Deputy Director of the Centre for Business Information Ethics
Meiji University, Tokyo, Japan       http://www.a-cubed.info/