An update on the moral rights provision in CC license (Philippines)

The unported 3.0 CC license (using the BY-NC-SA license as a template) provides in Section 4 (f), which is the moral rights provision:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, 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. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.

On this note, and on the initial process of porting using the current version 3.0 of the CC license, the Philippine jurisdiction finds that Section 4(f) includes an express moral rights acknowledgment, which is now satisfactory since a “Moral Rights” section was initially proposed for the 2.0 and 2.5 Philippine licenses, as a reaction to their omission by the US-based 2.0 and 2.5 unported licenses.

Considering however Philippine laws, the sentences “Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author's honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise” were removed; as the right to make Adaptations per se, in the Philippines, is not a deemed a derogatory action prejudicial to the author’s honor and reputation. Hence, it was proposed in the first draft of the Philippine CC license that the wordings of Section 4 (f) should be:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, 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.

Subsequently however since there had been criticism, in the unported 3.0 license, that Section 4(f) could be read as if the licensee has the obligation "....to not distort, mutilate, modify or take any other derogatory action in relation to the Work which would be prejudicial to the Original Author's honor or reputation" in every jurisdiction even if moral rights do not exist; the CCI illustrated the proposed rewordings, through the rewordings made to the provision by CC Netherlands, to wit:

The rights granted in article 3 must be exercised with regard of the moral right of the Creator (and/or the performing artist) to object to any distortion, mutilation or deformation of, or other derogatory action in relation to the work, which would be prejudicial to the creators (and/or the performing artists') honor or reputation, as far as the Creator is subject to legal requirements that make it impossible to waive this moral right.

Considering however that there is more wisdom in adopting the more encompassing and neutral statement suggested by the CCI director, Catharina Maracke, which provides:

Moral rights remain unaffected to the extent they are recognized and not waivable by applicable law.

The Philippine jurisdiction found this statement to be one which is to be incorporated as Section 4 (f), or the moral rights provision, of the proposed Philippine CC licenses.

The position of the Philippine affiliates considers Sections 193 and 195 of the PIPC. Section 193 provides the recognition of moral rights, to wit:

Section 193. Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.

Section 195 provides for the waivability, with the exceptions, of moral rights, to wit:

Section 195. Waiver of Moral Rights. - An author may waive his rights mentioned in Section 193 by a written instrument, but no such waiver shall be valid where its effects is to permit another:

195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation with respect to any version or adaptation of his work which, because of alterations therein, would substantially tend to injure the literary or artistic reputation of another author; or

195.2. To use the name of the author with respect to a work he did not create.

To comment on the proposed Philippine draft, see http://creativecommons.org/worldwide/ph/