The No-Derivatives Clause & Immutable Sections: A False Sense Of Security

The No-Derivatives Creative Commons licence module and the GNU FDL’s Immutable Sections appear to allow the circulation of works of opinion or expression while restricting the ability of malicious parties to misrepresent them. For political, polemical or confessional works it is clearly important not only to the author but to society that these works not be misrepresented.

It is not however clear that restrictive licences do more good than harm as a means to this end. There are already social and legal measures in place to prevent the misrepresentation of works. And restrictive licences harm the ability both to propagate and critique the works.

Socially there are strong social norms against plagiarism, falsification of results or quotes, misattribution of works and opinions, or misrepresentation of views or data. There is also an expectation of a right of reply and a right to corrections to breaches of these norms in most media. These rights may be enforced by industry bodies or by government agencies.

Legally there are laws against passing off of goods, laws preventing misattribution under the moral right of Paternity, laws against the mistreatment of works under the moral right of Integrity, laws against libel or slander, and laws protecting “personality rights”.

Within Free Software and Free Culture there are also licence requirements that protect against misattribution. Misattribution is arguably the core issue of misrepresentation of works. The GNU FDL and the CC licences require that derivative versions be clearly marked, and neither Debian nor The OSI regard this as a limit on freedom.

People and organizations do publish the results of breaking these norms, laws and licenses. Some do so illegally but there are also specific social and legal cases where this is allowed and even necessary.

Socially the practices of parody, satire, critique and debate all require use of the work that the author may not agree with. This use may involve quotation, wholesale use, transformative use or untransformed recontextualization.

Legally these social practices are encoded in exceptions to copyright such as Fair Use or Fair Dealing. Both the new GNU GPL 3 and the CC licences explicitly state their support for Fair Use. The GNU FDL should as well.

Using Fair Use and even minor rhetorical skill a malicious commentator can easily use context and selective quotation to argue that an author’s position is the opposite of the one that they actually hold. Placing a work under a restrictive licence does not prevent this. It simply gives a false sense of security to the author. And it allows malicious authors to chill public comment on their work through timewasting with meritless accusations of licence breaches. The net result is a loss for freedom of speech and no real gain for the protection of the reputation of the author.

It is better both for the author and for society to protect the right of reply with a copyleft licence or an expanded fair use licence than to try to suppress it with a restrictive licence. The social, legal and licencing effects are already stronger and more subtle than a restrictive licence, and such a licence cannot protect against misrepresentation any more than society, the law, and existing copyleft licences already do anyway.

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Posted in Free Culture