CC Canadian enforcement case

(via Michael Geist). A Canadian photographer posted some pictures in Flickr and licensed them under a Creative Commons ShareAlike licence. According to one Mr Spatial Mongrel from Kamloops BC (no real name is given, but you have to love the nick), one of his pictures was used for political propaganda by Betty Hinton MP, who has been the subject of previous IP-related incidents as I recall.

I have written an analysis of the case, but I am now aware that this is rather moot as I’m not sure what was this picture licensed under, as it now shows as “All Rights Reserved” in Flickr. I will base the analysis under the assumption that it was licensed under a CC-BY-SA Canadian licence and not under the old generic one.

The first element of analysis is one of mere breach of the terms of the licence. As the original picture was licensed using a CC Attribution Share Alike 2.5 licence, then the derivative is in breach because it did not attribute and it did not share the derivative under a similar CC licence. To me this would be enough to warrant a suit if the author feels slighted.

However, the author claims that the use of the licence is done by someone with whom they don’t share political views. This is irrelevant to the existing licence for several reasons. Firstly, the Canadian CC licence is the only one that waives the moral right of integrity. The current language reads in section 3:

“Except as otherwise agreed by the Original Author, if You Use a Work or any Derivative Works or Collective Works in any material form, You must not do anything that would offend the Moral Rights of the Original
Author, including but not limited to:
1. You must not falsely attribute the Work to someone other than the Original Author; and
2. If applicable, You must respect the Original Author’s wish to remain anonymous or pseudonymous.
All other moral rights are waived. This means the Original Author is not reserving the ability to prevent downstream creators from engaging in material distortion or modification of the work, including, but limited to, associating the Work with a particular product, service, cause or institution.”

This clause made the Canadian licence incompatible with other jurisdictions where moral rights could not be waived (Continental Europe, Latin America, etc.). This prompted changes and version 3.0 will be ported to remove this clause and to leave integrity rights intact. This is the solution we use in Scotland at the moment, where our licence asserts the moral right of paternity, but does not waive the integrity right. The new Generic CC Licence 3.0 contains this in section 4.d:

“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.”

Similarly, s 4.c now has specific no-endorsement language:

“You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.”

Even if the author was using this licence instead of the Canadian one, I would still be sceptical of making an integrity claim. This is because you’ll notice that the language is quite strong. The derivative must “distort, mutilate, modify or take other derogatory action“, and this must be prejudicial to the author’s honour and reputation. In my opinion, the mere use of the picture in political advertisement does not fulfil the language. In the UK, I believe that the right of integrity has not produced a lot of case law because the bar is set too high.

And even if the author is not using the Canadian version, his best case is to allege breach of licence. I do hope we get a case out of this, as it would be interesting for many different reasons.

So, in other words, “fight, fight, fight!”

Update: Spatial Mongrel is called David Wise.

Further update: Jordan Hatcher has pointed out that Flickr uses CC 2.0 Generic.