Joichi Ito
Tue, 27 Oct 2009 21:40:10 -0700
This is very interesting. Thanks for starting this discussion and
adding the cc-jo mailing list. It would be great if others could chime
in as well.
- Joi
On Oct 27, 2009, at 23:06 , Ahmad Gharbeia wrote:
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> Thank you ,Rami, for the elaborate and prompt reply. It must have
> taken
> from your time.
>
> رسالة Rami Olwan في 27/10/09 14:22:
>> Hi Ahmad,
>>
>>
>>
>> As promised, please find below my comments after consulting with
>> Ziad.
>> For your ease of reference, they are in the same order you have
>> raised
>> them.
>>
>>
>>
>> *1) **Attribution: العزو instead of نسب المصنف*
>>
>> We have agreed to use نسب المصنف as it gives the proper
>> legal meaning
>> and is much clearer than what you suggested as it is literal
>> translation.
>>
>> The /Jordanian Copyright Law/ does not use العزو. We have
>> relied on the
>> spirit of Art 17/D that provides:
>
> Understood.
> I'm not arguing about legal relevance, and in this specific instance
> not
> even about clarity. My concern is how these words are used in the
> *human
> layer* of the license.
>
>> “The published works maybe used, without the consent of the author
>> subject to the following conditions and in the following cases:
>>
>> D. Quoting paragraphs of the work into another work for purposes of
>> illustration, explanation, discussion, critique, cultivation, or
>> examination within the limits justified by these purposes and
>> provided
>> that the names of the work and author are mentioned.
>
> This is beside the point, but العزو, literally "attribution", is
> not
> concerned with "consent", either.
> It is also understood that the licensor grants this permission in
> advance, which is the real benefit of the CC license.
>
>
>> Art 8/A of the Jordanian /Copyright Law/ uses clearly Attribution
>> and in
>> Arabic نسب المصنف. The right of attribution is one of the
>> moral rights.
>> Moral rights are the foundation stone of author’s right system
>> (‘droit
>> d’auteur’ system) as it has come to be applied in Europe
>> (particularly
>> France) rather than the Anglo- Saxon ‘copyright system’. Art 8/A
>> provides that:
>
> I acknowledge this and the remaining legal basis you mention.
>
>
>> Also, in Arabic legal scholarship, it is not difficult to find
>> Jordanian
>> and Egyptian copyright scholars refer to نسب المصنف as
>> attributing the
>> name of the author to his work.
>
> I'm not thinking "Jordanian vs. Egyptian" copyright laws at all. I'm
> just arguing that maybe a justified and well-defined use of this or
> similar word could facilitate the use and acceptance of the license in
> its human front.
>
> In your professional opinion, do you think it would be possible to
> define what العزو (or another single suitable word) means in the
> context
> of the license (eventually a contract itself)?
> For example by stating that "in the context of this license xxx means
> yyyy in such a way [...]"?
>
> Alternatively, do you think it could be النسبة alone without the
> redundant المصنف ("work")? At least where the shor-hand form of
> the
> words are used in the license desgination, i.e. "Creative Commons:
> Attribution-XXX-YYY v3.0"?
>
>
>>
>>
>> *2) **NonCommercial: غيرالتجاري instead of غير
>> تجارية*
>>
>> Your comment here is correct as we are not referring to the
>> license, but
>> instead to the work. We will change it accordingly. Thank you for
>> raising this point.
>
> If you take a look at what I had sent on the mailing list you'd find a
> couple more of this kind of notes.
>
>
>>
>> *3) **ShareAlike: المشاركةبالمثل instead of
>> توزيعه وفق نفس الترخيص
>> and the
>> unfinalised suggested alternative المشاركة على قدم
>> المساواة*
>>
>> * *
>>
>> There is no corresponding word for ShareAlike in Arabic that is
>> used in
>> the Jordanian /Copyright Law/ as this concept is not found.
>>
>> Again, your translation is literal and to some users (not familiar
>> with
>> the word share alike in English) do not give the needed meaning.
>> Furthermore, most legal scholars would not know what you are taking
>> about if you use المشاركةبالمثل.
>
> I ask whether Share-alike has foundation in the legal jargon of
> English
> speaking jurisdictions? UK, US, Ausralia?
> If not, then there is space for defining words that are not
> necessarily
> rooted in existing legal jargon, as long as we define them well in the
> context and bind the definition to recognised, existing legal
> structures
> and code. Even if just for the sake of using it in the human layer of
> the license.
>
>
>> We have been creative in coming up with this combination of words
>> that
>> give the meaning. I am not sure if we need to use a “catchy
>> word” as we
>> can come with many alternatives, but would it be understood?
>
> If English-speaking people can be taught what "ShareAlike" means
> then it
> shouldn't be a problem educating Arabic speaking people what
> المشاركةبالمثل means.
>
> I other discussions about localisation I tend to give numerous
> examples
> about the seemingly unequivocal usage of words in the modern age and
> specially Internet domain, while their recent history reveal radically
> different usage. See for example spam, web, etc.. And by recent I mean
> only few decades, so that even and elderly who isn't familiar with the
> jargon of the Internet would have no clue about their use in this
> context.
>
> Again, my argument above will stand only if "ShareAlike" is made up in
> English with no precedence in legal code. You know better about this.
>
>>
>>
>>
>> *4) **NoDerivatives: بلااشتقاق*
>>
>> The Jordanian /Copyright Law/ does not use the word derivative as
>> found
>> in the US /Copyright Act of 1976/, As Amended. "derivative work" is
>> defined in 17 U.S.C. § 101 as:
>>
>> “..a work based upon one or more pre-existing works, such as a
>> translation, musical arrangement, dramatization, fictionalization,
>> motion picture version….”
>>
>>
>>
>> Art 9 of the Jordanian /Copyright Law/ provides that:
>>
>> “The author shall have the right to financially exploit his work
>> in any
>> way he chooses... This right shall include:
>>
>> C. To translate his work into another language, adapt it, orchestrate
>> it, or make any alteration thereto…”
>>
>>
>>
>> We have been faithful to the wording of the law itself that uses
>> *(**اقتباس**), *and we didn’t want to come up with a new
>> word that might
>> not be recognised.
>
> Legal points acknowledged. And I maintain the same arguments as above,
> if they stand.
>
>
>> It is true that the word “derivatives” do not appear in the
>> title of the
>> Arabic license as the unported license that we have used did not
>> include
>> it. Please make sure when you are reviewing the Arabic 03 license to
>> compare only with the unported licence. All comments must be based
>> also
>> on the Jordanian /Copyright Law/.
>
> So you intend to use بلااقتباس as the license element
> equivalent to
> "NoDerivatives"?
>
>
> Again, regarding Jordanian law, I'm commenting here specifically on
> the
> words used in the human layer of the license, i.e. its title, which we
> have an agreement on, and the license elements. I don't have the legal
> expertise to judge your work, and I'm not trying to.
>
> What I'm trying to do is to ensure that these license element idioms
> are
> chosen in a way that could be easily used across the Arab World,
> regardless of the internal workings of the localised legal code; and
> most importantly that they be as *human* as much as possible; easy to
> learn and propagate.
>
>
>> I was referring to another Arabic 03 version that we want to send
>> to CC.
>> This version is still not available online as we have to send it CC
>> with
>> the English translation and have their approval.
>
> I don't have that. So proceeding with the critique of the reminder of
> the license text won't be feasible.
>
>
>> One last note , what do you mean by?
>>
>> “residual issues are: including “software” in the licensed
>> word possibly
>> covered by CC license…”.
>
> I've raised few points in the first part of my critique of the license
> which I submitted to the mailing list in October 2008 [see
> http://lists.ibiblio.org/pipermail/cc-jo/2008-October/thread.html].
> I believe those are worthy of your consideration. Some linguistic
> notes,
> and suggestions for wording, and also some conceptual.
>
> Among those one about how the draft I had seen enumerates computer
> *software* among what the license is intended to cover. Wile I'm not
> arguing about the viability of this use of the license, I understand
> that the English versions I've seen refrains from counting software
> among its intended usage. I guess this is consciously left to other
> licenses designed specifically for that, like GNU.
>
> There are also notes about generalisations and specifications in the
> language of the license that I thought could benefit from reviewing.
> Nothing specific to any given legal jurisdiction. Or so I think.
>
>
>> Thank you again. Please let us know if you have further comments.
>
> Thank you, Rami, for taking the time to respond.
>
> Sincerely,
> Ahmad Gharbeia
>
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